Outcome of Labour Court Judgment: City of Cape Town v Sirmongpong N.O. and Others (Case No. C417/2024)
Attached is a Labour Court judgment delivered on 12 August 2026 in a review application brought by the City of Cape Town against a disciplinary finding in favour of an IMATU member. The case concerned allegations of sexual harassment against the member, who was employed as a Nursing Clinic Manager.
The member, who was also female, was accused of sexually harassing another female colleague by hugging her, blowing kisses towards her, telling her that she was beautiful and, on one occasion, touching her buttock. The member was found not guilty at her disciplinary hearing. The City took this finding on review in the Labour Court.
The Court ruled in IMATU’s favour and dismissed the City’s review application.
The Court emphasised that, for conduct to constitute sexual harassment, the unwanted conduct must be of a sexual nature. Whether particular physical contact or gestures are sexual cannot be determined in isolation and must be assessed in the context of all the surrounding circumstances. Relevant considerations include the nature of the contact, the part of the body involved, the complainant’s reaction, the employee’s explanation, the evidence of the witnesses and established workplace practices.
In this case, the evidence showed that employees regularly hugged one another and that the member commonly used hugs and kiss-blowing gestures as expressions of support, appreciation or thanks. The Court found that, viewed in context, these actions were not sexual in nature. In relation to the buttock incident, the evidence corroborated the member’s version that the contact was fleeting rather than an intentional pinch or fondling. Moreover, the complainant was initially unsure who had touched her.
Key Takeaway:
The judgment demonstrates that conduct may be inappropriate or unwise without necessarily amounting to sexual harassment. The dividing line is whether the conduct, viewed in its full context, was actually sexual in nature. A workplace gesture may therefore be inappropriate because it is overly familiar, may make another employee uncomfortable, or may create the possibility of a misunderstanding, without necessarily crossing the line into sexual harassment.
It is therefore not enough to show that the conduct was unwanted, inappropriate, overly familiar or made the complainant uncomfortable. The evidence must establish that, when the conduct is considered in its full context, it crossed the line from inappropriate workplace behaviour into sexual conduct and therefore amounted to sexual harassment.
The judgement is reportable.
