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[2020] ZALAC 61
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McGregor v Department of Health , Western Cape and Others (CA18/18) [2020] ZALAC 61; (2021) 42 ILJ 514 (LAC) (13 October 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case no: CA18/18
In the matter between:
DR
C J McGREGOR
Appellant
and
THE DEPARTMENT OF
HEALTH,
WESTERN CAPE
First Respondent
THE PUBLIC HEALTH &
SOCIAL DEVELOPMENT
SECTORAL BARGAINING
COUNCIL
Second Respondent
ADV
J MATSHEKGA N.O.
Third Respondent
Heard:
27 February 2020
Delivered:
13 October 2020
Summary
:
Dismissal ---
Sexual harassment---
Supervisor
sexually harassing younger female intern---Whether complainant found
supervisor’s conduct and remarks inappropriate
---Supervisor’s
conduct and remarks unwelcomed and amounted to sexual harassment.
Arbitrator’s finding that dismissal
substantive unfair based on
inconsistency unreasonable as complainant took no issue with
pornographic pictures received from another
employee. Labour Court’s
judgment upheld and appeal dismissed with costs.
Coram: Davis JA,
Sutherland JA and Murphy AJA
JUDGMENT
MURPHY AJA
[1]
The appellant is a specialist anesthesiologist. He was employed by
the third respondent,
the Department of Health, Western Cape (‘the
department”) as the head of its anesthesiology department at
the
George
Hospital until
his dismissal on
28
December 2016. He was
dismissed
by the department after being found guilty of sexual harassment of
the complainant, Dr Smook, a junior colleague at the
hospital.
[2]
At the time of his dismissal, the appellant was 57 years old, and the
complainant
was a 26 year old female intern medical doctor who worked
under his supervision.
[3]
In October 2016, the appellant and complainant undertook a trip to
Riversdale in order
to perform services at a local medical facility.
The complainant accompanied the appellant in his motor vehicle and
stayed at the
same guesthouse in Riversdale.
[4]
The appellant was charged with four counts of sexual harassment,
three of which related
to the trip to Riversdale. The charges arising
from the Riversdale trip were: i) charge 1 which alleged that whilst
on duty on
an outreach program to Riversdale and while stopping over
at Vleesbaai beach the appellant made an unwelcome suggestion of a
sexual
nature when he dared the complainant to remove her clothes and
swim naked in front of him when he should have known that his
behaviour
was unwelcome; ii) charge 2 which alleged that the
appellant made an unwelcome suggestion with sexual undertones to the
complainant
that they embark on an affair; and iii) charge 4 which
alleged that the appellant made unwelcome sexual advances to the
complainant
by inappropriately touching her leg when they were
travelling in his car together.
[5]
Charge 3 related to an incident about a week after the trip to
Riversdale. It alleged
that on 28 October 2016 the appellant made
unwelcome sexual contact with the complainant when he inappropriately
pressed himself
up against her in the theatre at George Hospital
while showing her how to insert a laryngeal mask.
[6]
The charges must be understood in the context of the department’s
sexual harassment
policy. Clause 7.2 of the policy defines sexual
harassment as follows:
‘
Sexual
harassment is unwelcome conduct of a sexual nature that violates the
rights of a person. The unwelcome nature of sexual harassment
distinguishes it from behaviour that is welcome and mutually
acceptable. Such conduct may substantially interfere with an
employee’s
work performance and may create a hostile, offensive
and intimidating environment.’
[7]
Clause 7.2.1 of the policy provides that certain factors may be taken
into account
to determine whether conduct constitutes sexual
harassment, including the nature and extent of the sexual conduct and
the impact
of the sexual conduct on the complainant. Clause 7.2.2
provides that sexual attention becomes sexual harassment if: the
recipient
has made it clear that the behaviour is considered
offensive; and/or the perpetrator should have known that the
behaviour is regarded
as unacceptable; and/or the unwanted behaviour
persists. A single incident of harassment can nonetheless constitute
sexual harassment.
Clause 7.2.3 provides that the complainant’s
perception and experience of the alleged conduct will largely
determine whether
the conduct was offensive and unwelcome. Other
provisions of the policy set out that the unwelcome conduct may be
physical, verbal
and non-verbal. Verbal conduct of a sexual nature
includes all unwelcome innuendos, suggestions and hints, sexual
advances, comments
with sexual undertones and sex-related jokes.
[8]
After a disciplinary enquiry concluded that he was guilty on all four
counts, the
appellant was dismissed. The appellant thereafter
referred an unfair dismissal dispute to the first respondent, the
Public Health
and Social Development Sectoral Bargaining Council.
After a lengthy arbitration, the arbitrator was satisfied that the
department
had proved the misconduct comprising charges 1, 2 and 4
but not that alleged in charge 3. He, however, determined that the
appellant’s
dismissal was substantively unfair because the
department had been inconsistent in applying discipline for sexual
harassment. He
also held that as the appellant’s evidence on
procedural unfairness had not been meaningfully challenged, the
dismissal was
procedurally unfair. The arbitrator however opted not
to reinstate the appellant
on the grounds
that the misconduct on the three charges had been proved and thus
reinstatement would be intolerable. The arbitrator
accordingly
awarded the appellant
compensation
equivalent to six months remuneration.
[9]
The appellant made an application to the Labour Court to review the
decision of the
arbitrator not to reinstate him. The department
brought a cross-review in respect of the arbitrator’s findings
of unfairness
and the award of compensation.
The
Labour Court (Gush J) dismissed the application for review but varied
the award to provide that the dismissal was substantively
fair but
procedurally unfair. It did not set aside or modify the award of
compensation.
[10]
The appellant appeals to this court against the finding of the Labour
Court that the dismissal was
substantively fair and the consequent
refusal of reinstatement. The department has not cross-appealed
against the finding of procedural
unfairness or the award of
compensation. It also does not take issue with the finding of the
arbitrator in relation to charge 3
that it failed to prove
that the appellant inappropriately pressed himself
up against the complainant in the theatre at George Hospital while
showing her
a medical procedure.
The factual background
[11]
The events giving rise to the three charges occurred over two days.
The charges are not set out in
chronological order.
[12]
The allegation in charge 2 that the appellant suggested having an
affair occurred during the journey
from George to Riversdale. While
discussing outreach work, the appellant
talked
about extra-marital affairs on outreach trips and mentioned that a
report had been made about him having affairs to Mr Vonk,
the CEO,
who in response “had fallen off his chair laughing”.
The
complainant felt the discussion was inappropriate and inferred that
the appellant, although speaking hypothetically, meant to
communicate
that it was feasible to have an affair during an outreach trip and
went so far as to say something like: “What
happens in
Riversdale can stay in Riversdale”.
In
cross-examination, counsel put it to the complainant that the
appellant put a different interpretation on the discussion but
nonetheless acknowledged that the appellant had discussed his
extra-marital affairs. He claimed though that Vonk had laughed
because
the notion was ridiculous. In his testimony,
the
appellant initially inconsistently denied that there had been any
discussion about the rumours of his extra-marital affairs
but his
evidence changed under cross-examination when he (somewhat
cryptically) admitted that there had been such a discussion.
He
denied though that the discussion was tantamount to a proposal of an
affair.
[13]
The conversation then turned to going to gym, with the complainant
saying that she needed to go to
gym because she was putting on
weight. To this, the appellant replied that she did not need to go to
gym as she would make an excellent
model and told her that he would
love to photograph her.
[14]
After arriving in Riversdale and booking into the guesthouse, the
complainant accompanied the appellant
to a restaurant in Stilbaai for
dinner. On the way, while talking about their dinner arrangement as a
great “pseudo-date”,
the appellant touched the
complainant’s leg, on the upper medial thigh (charge 4),
causing her to feel uncomfortable. In
response, she moved her legs
and turned away. She described the touch as a “sexual touch”.
The cross-examination of the complainant on
charge 4 revealed some inconsistency as to when and where this
incident occurred and
the possibility that she may have embellished.
[15]
Not much turns on the minor inconsistencies, because the appellant
admitted that he “brushed”
the complainant’s leg
with his left hand
,
but claimed variously that it was either an unintentional touch while
gesticulating or merely a friendly pat without sexual undertones.
He described the touch as “normal” and
“accidental”. He confirmed though the complainant’s
discomfort
at the touch and described how she moved her legs and
looked away from him. He asked her if there was something wrong,
explaining
that it was “professional trusts” and “good
manners” to enquire as to the reason for her obvious
discomfort.
She answered, so he said, that the air conditioning was
bothering her.
[16]
In cross-examination, it was put to the appellant that given their
respective positions in the car
it was improbable that he would have
touched the complainant on the upper medial thigh accidentally while
gesticulating. To this,
the appellant replied:
‘
It
was a friendly, it was just normal. I touched her by accident. I was
using my hand to gesticulate and I did and I had no sinister
intentions or anything behind it.’
[17]
When pressed on whether the touch was accidental or “friendly”
(being intentional), the
appellant repeatedly equivocated before
eventually accepting the proposition that if it was intentional it
was without sexual connotations.
Then later, though fully aware of
the implications of the difference, continued evasively to describe
the touch as both friendly
and accidental.
[18]
On arrival at Stilbaai, before going to the restaurant, they took a
walk and the appellant took photographs
of the complainant. At
dinner, the appellant once again referred to the occasion as a
“pseudo-date”. She experienced
what he said as sexually
suggestive.
The appellant’s evidence
about his description of the dinner at Stilbaai as a “pseudo
date” is revealing. Asked
what he had meant by a “pseudo
date”, he replied:
‘
Professional
visit, I am twice her daddy’s name (sic), ag twice her age. I
am married and I just wanted things to be on the
right basis. That
she understood that this remained a professional date…This
dinner and there were no erosions or boundaries…When
I said
that maximum this can be considered a pseudo date. This is no, it is
just, it is a friendly supper. She was quite impressed
that we, that
I took her to the restaurant…..It is normal to do this and it
is actually good manners and she, she enjoyed
that she had this, was
treated like this (sic).’
[19]
When cross-examined on the topic, the appellant admitted that he had
no basis to assume that the complainant
had “come on” to
him in any way. He was then referred to his testimony at the
disciplinary hearing where he described
giving the complainant the
following admonition:
‘
I
am 30 odd years older than you. I am married and you are my guest,
but it remains a professional evening. There is nothing, there
is no,
let us call it a pseudo date. The rest will carry on.’
Counsel for the
department asked the appellant “what on earth” would make
him say that to a young intern. To which the
appellant replied:
“because I think it is important to have the rules right on
these trips…that it does not go anywhere”.
He “just
wanted to make it totally clear…in case she had other
expectations.”
[20]
After dinner, they returned to the guesthouse. The complainant went
to her room, prepared for bed,
changed into loose fitting pants and
let down her hair. Before she could get into bed and read, the
appellant knocked on her door
and suggested that she join him for a
nightcap. She reluctantly agreed, tied up her hair and went
downstairs to the lounge. While
having a drink, the appellant made a
comment that she should wear her hair down. After 10 or 15 minutes
they went back upstairs
where the appellant stood in front of the
door to her room and hugged her. The appellant then took her by the
shoulders, looked
deeply into her eyes, smiled and appeared as if he
wanted to kiss her. The complainant did not respond and got into her
room. There
was no meaningful challenge to these allegations and
t
he
appellant was not invited to tender his version
on
the grounds that
they did not form the
basis of any charges.
[21]
The following morning, the complainant and the appellant had
breakfast together before going to work.
The appellant brought the
conversation round to the previous evening and stated that it was one
of the best and most enjoyable
dates he had been on “even
though he did not have the grand finale”. The complainant
understood the appellant to be
referring to sex. Walking to the car
with her luggage, the complainant was carrying her shoes in her hand.
The appellant took her
shoes from her. When she protested, saying
that she had two hands and could carry her own shoes, the appellant
said something to
the effect that he was carrying her shoes so that
he could tell people that she had left them in his room. She
understood this
to mean that he wanted to create the impression that
he had slept with her. In response to a proposition that the
appellant would
deny such, the complainant stood firm on her version.
When it was put to her that these matters did not form part of the
charges
against the appellant, she countered that sexual harassment
was a “continuous thing”.
[22]
On the way back to George from Riversdale later that day, the
appellant and the complainant detoured
to Vleesbaai where they took a
walk on the beach. The appellant again took a number of photographs
of the complainant. The complainant
testified that the appellant
suggested that she take a swim (charge 1) as follows:
‘
But
why don’t you go for a swim? And I said: ‘Firstly,
because it is cold, and secondly, I don’t have a swimsuit’.
And he said: ‘Don’t worry, you don’t need a
swimsuit. I imagined you naked, and you definitely have nothing to
be
ashamed of’.’
When asked by counsel
what she said to that proposal, the complainant testified:
‘
I
tried to make light of it, because this is a very serious thing to
say to somebody, especially after all the comments that has
been made
and the touching of the leg, and I just made light of it. I said: ‘Ag
no, I don’t have clothes – dry
clothes with me. I just
want to go home’.’
[23]
In cross-examination, counsel acknowledged that there had been some
talk of swimming naked but asked
whether she agreed that the
appellant never asked her to undress and swim in the nude. The
complainant responded as follows:
‘
He
said: “Why don’t you take a swim?’ and I said:
‘Because I don’t have a swimsuit’ and he said:
‘But
you could always just go for a swim in the nude – or swim
naked, and don’t worry about your body. There
is nothing to be
ashamed of’.’
Counsel responded by
saying that the appellant would deny that, but did not specifically
challenge the alleged comments about her
body.
[24]
The appellant admitted that he had suggested that the appellant swim
naked but said that when the matter
came up he merely said “you
can swim with your clothes on or as in Europe you can swim naked”.
He went on to say: “It
was a joke at the time. It was accepted
as a joke and we continued to walk along the beach”. The
appellant was reluctant
to concede that his remark might have made a
young female intern under his supervision uncomfortable or might be
seen as a form
of grooming. He, however, admitted that during the
trip he had on various occasions commented on the complainant’s
appearance.
Thus, he accepted that he had described her as
attractive, stated that she dressed well, observed that she did not
have to go to
gym to lose weight, and told her that she looked better
with her hair down.
[25]
After returning to George, the appellant sent the complainant by
“whatsapp” some of the
photographs he took at Vleesbaai.
One photo shows the complainant apparently posing with her back to
the camera and head turned
to the side. It is accompanied by a text
message which reads: “A picture is worth a 1000 words. Thanks
for coming with on
outreach. It was great.” The complainant
replied immediately saying: “Thank you! Was amazing! And now I
have a new
profile pic.” At the end of the message, she added
an emoji of a winking face. To this, the appellant replied: “It
was great fun. You did a great job of the anaesthetics and are a
perfect lady to take on outreach.” Later in the “whatsapp”
conversation the complainant stated: “See you Monday! And thank
you for taking me along…would definitely do it again.”
To which the appellant replied: “It will be pleasure to take u
along again.”
[26]
When it was intimated by counsel for the department that the
photographs, messages, the winking emoji
and the description of the
trip as “amazing” might be construed as inconsistent with
her claim of harassment, the complainant
said she was trying to
normalise the situation. She clarified that she wanted to maintain
cordial relations until the appellant
signed off her logbook, which
she required to complete her internship. She explained that the
winking emoji was her standard signature
in messaging that she used
at the end of all her messages, thus implying that nothing
flirtatious could be made of it.
[27]
While the appellant’s counsel was exploring the photographs
taken at Stilbaai and Vleesbaai,
the complainant was prompted to
comment more generally about the appellant’s attitude towards
her. She reiterated her view
that the sexual harassment was of an
ongoing nature. Counsel referred her to a passage of her testimony at
the disciplinary enquiry,
which read:
‘
The
whole time during that time he would tell me that I looked really
good, I dress very well and I’m very attractive. We
went to
Stilbaai for dinner and we went to the harbour, where he took photos
of me and told me that I would make an excellent model
and that I was
really a beautiful girl.’
She explained what she
meant by that statement as follows:
‘
So
I was saying we went to Stilbaai for dinner, but the whole way, on
the way, the whole Stilbaai excursion he would tell me
about…(indistinct)
and that I was very attractive……And
then he took photos of me and told me that I would make a beautiful
model.’
[28]
The complainant reported her experiences of the Riversdale trip
immediately on her return to George
to her friend and colleague, Dr
Francois Roos. She discussed the matter with other colleagues, one of
whom, Dr. Smith, then wrote
to Dr North, the manager of medical
services. On the following Monday, the complainant was approached by
Dr North who asked her
to accompany her to her office. There she was
asked to explain what had happened with the appellant in Riversdale
and to make a
statement.
[29]
On 28 October 2016, before a formal complaint was made against the
appellant, the complainant worked
with the appellant in theatre at
the George Hospital. She alleged that on that day, the appellant came
into close physical contact
with her while showing her a medical
procedure and inappropriately pushed his pelvis against her. This is
the event that formed
the basis of Charge 3 which the arbitrator held
was not established by sufficient reliable and credible evidence.
[30]
Disciplinary steps were subsequently taken against both the appellant
and another senior doctor, Dr
Nel. The proceedings against Dr Nel
have acquired some relevance, and I will return to the evidence in
that regard when discussing
the award of the arbitrator.
The other witnesses
[31]
Thirteen other witnesses testified at the arbitration hearing. Much
of their evidence related to the
first reports of sexual harassment
by the complainant, similar fact and character evidence about the
appellant, the problem of
sexual harassment by senior doctors at
George Hospital and the most serious allegation of sexual harassment
by the appellant, being
the alleged inappropriate contact in theatre
on 28 October 2016 (charge 3), which the arbitrator held was not
sufficiently proved.
For reasons that follow, there is no need to
canvass that evidence in any detail. Two points deserve mention.
[32]
Firstly, Mr Vonk, the CEO of George Hospital, testified that in the
past he had received complaints
from female doctors about sexual
harassment by the appellant and other senior doctors. He had spoken
to the appellant about this.
He was also approached by Prof Reid from
the University of Cape Town about reports of sexual harassment in the
anaesthetics department.
Prof Reid was concerned about medical
students who were undertaking their rotations at George Hospital. The
outcome of his discussions
with Prof Reid was that “other
doctors… should take a leading role in the supervision of the
medical students rather
than Dr McGregor”. That evidence is
unchallenged.
[33]
Secondly, Dr North confirmed that the first report of the sexual
harassment came to her from Dr Smith
who intervened on behalf of the
complainant. It is clear from the evidence that some of the female
doctors at George Hospital banded
together to seek disciplinary
action against the appellant. This evidence, and the evidence
overall, indicates convincingly that
there was an ongoing problem of
inappropriate sexual conduct by some senior doctors at the hospital.
It is common cause, for example,
that Dr Nel, a senior doctor in his
sixties, was in the habit of regularly sending pornographic images
and videos to the complainant.
The arbitrator’s
award
[34]
The arbitrator correctly pointed out that the only direct evidence of
the events on the outreach trip
was the testimony of the complainant
and the appellant. He accordingly framed his task as the weighing of
the probabilities of
the two versions against each other without
having to make specific findings of credibility of all the
witnesses.
[1]
He then, somewhat
sweepingly, ruled that the evidence of all the witnesses on behalf of
the department except that of the complainant
was irrelevant and
inadmissible. His ruling is not correct. The evidence related to the
first report, similar fact and character
was both admissible and
relevant. However, in the final analysis, nothing turns on the error.
[35]
The arbitrator found that the evidence of what happened in theatre on
28 October 2016 (charge 3) while
perhaps demonstrating that the
appellant had not respected the complainant’s personal space
was insufficient to conclude
that the appellant had sexually harassed
the complainant on that occasion. As discussed earlier, that finding
is not in contention
on appeal. However, he was satisfied that the
other charges had been established.
[36]
The arbitrator accepted as probable that the appellant hinted at an
affair while discussing the rumours
of his extra-marital affairs and
discussing a “pseudo date. He was also satisfied that the
appellant inappropriately touched
the complainant’s leg on the
way to Stilbaai on the basis that i) the touch was not disputed; ii)
the uncontested evidence
that the appellant was discussing the
“pseudo date” when the touch occurred; and iii) the
complainant had turned away
in discomfort. He accordingly concluded
that the touch was intentional and had sexual undertones.
[37]
The arbitrator found that the comments about a swim in the nude
constituted sexual harassment on the
following basis:
‘
Conversations
about nudity with one’s colleagues whom you are not
acquaintances are wholly inappropriate (sic). Expecting
a junior
colleague to be nude and/or making a joke about nudity is deplorable.
The power relations between the applicant and Smook
are such that the
applicant should have known that he could not have a conversation
with Smook, whatever the label he seeks to
attach to it, about
nudity. The applicant should have known that such comments were
unacceptable and unwelcome.’
[38]
Thus, the arbitrator accepted that the misconduct forming the basis
of three of the four charges had
been proved. He, however, held that
the dismissal of the appellant was substantively unfair on grounds
inconsistency in that the
appellant had not been disciplined equally
to Dr Nel. The complainant had complained also about Dr Nel who had
sent her several
pornographic images. Nel was subject to a
disciplinary enquiry two days after the appellant’s
disciplinary hearing. The record
of the Nel hearing forming part of
the appeal record is incomplete. However, a document related to the
hearing reflects that the
complainant acknowledged that although
Nel’s behaviour was inappropriate she had not communicated that
she regarded it as
offensive. Moreover, Dr Nel had made no sexual
overtures to her. Nel was acquitted at his disciplinary enquiry
because his conduct
was found not to have been unwelcome. Clause
7.2.3 of the policy provides that “the complainant’s
perception and experience
of the alleged conduct/behaviour will
largely determine whether the conduct was offensive and unwelcome”.
[39]
The arbitrator’s finding that the dismissal was substantively
unfair for inconsistency was as
follows:
‘
The
respondent did not favour me with any reliable evidence and /or
reasonable explanation why Dr Nel was not disciplined or dismissed
despite being similarly placed as the applicant and committing the
same, if not more serious misconduct. In the absence of that
evidence
the conclusion is inevitable that the reason for the distinction is
motivated by bias and/or ulterior motives. Accordingly,
the dismissal
of the applicant while no disciplinary action and/or Dr Nel was
acquitted of the same misconduct is unfair (sic).
Thus, the dismissal
of the applicant was substantively unfair.’
[40]
The arbitrator, as mentioned, also found that the dismissal was
procedurally unfair. That finding is
also not in contention on
appeal.
[41]
Having found the dismissal to be unfair, the arbitrator exercised his
discretion under section 193(2)
of the Labour Relations Act
[2]
(“the LRA”) to award compensation rather than the primary
relief of reinstatement. Although he did not explicitly say
so, it is
clear from his reasoning that he declined to award reinstatement
because he believed that the circumstances surrounding
the dismissal
were such that a continued employment relationship would be
intolerable.
[3]
He reasoned that
the appellant’s blameworthiness, and the fact that he had been
found to have contravened the rule against
sexual harassment,
militated against ordering reinstatement or re-employment. He noted
that had there not been inconsistency the
dismissal would have been
substantively fair. After considering all relevant factors, he
awarded compensation in the amount equivalent
to six months
remuneration.
The Labour Court
proceedings
[42]
The appellant’s application to review
the award focused not only on the decision not to reinstate him but
also the findings
in relation to the charges. The department brought
a cross-review in respect of the arbitrator’s findings of
unfairness and
the award of compensation.
[43]
The Labour Court accepted that the arbitrator’s findings in
relation to the charges were reasonable
and not reviewable. However,
it held that the arbitrator had misconstrued the evidence and
misapplied the principles in relation
to inconsistency with the
result that the finding on substantive fairness was unreasonable
because it
ignored the seriousness and nature of
the misconduct and the circumstances under which the misconduct took
place. To conclude that
the dismissal was substantively unfair
despite the appellant being guilty of three charges was not a
decision to which the arbitrator
could reasonably come.
Accepting that the dismissal was procedurally
unfair, the Labour Court did not interfere with the award of
compensation and declined
to order either party to pay costs.
The
Labour Court therefore dismissed the application for review but
varied the arbitration award to provide that the dismissal was
substantively fair but procedurally unfair.
[44]
The appeal to this court is limited to a challenge to the Labour
Court’s finding of substantive
fairness. The appellant seeks
retrospective reinstatement, the costs of the arbitration, costs of
the review application and costs
of the appeal.
The submissions and
considerations on appeal
[45]
The appellant argues that the arbitrator erred in finding that there
was evidence to support the charges
of sexual harassment and in not
granting reinstatement. He claims the award was unreasonable
principally because the arbitrator
premised his finding upon too
narrow an enquiry, ignored material evidence and failed to test the
conflicting versions of the appellant
and the complainant. A
fundamental flaw in the award, counsel submitted, was the failure of
the arbitrator to even consider the
credibility of the witnesses, let
alone test their reliability. The arbitrator was presented with
mutually irreconcilable and contradictory
versions on key aspects of
the charges and failed to do a proper assessment of the versions.
Moreover, the appellant contended
that t
he arbitrator
disregarded “crucial evidence” and set out in his heads
of argument a list of 21 instances of such evidence.
[46]
Counsel submitted further that the arbitrator’s finding that
the complaint in respect of the
theatre incident necessarily implied
that the complainant had been untruthful in her evidence
that
the appellant had pressed his whole body against her back. From this
he should
have
made an adverse credibility
finding
when assessing the conflicting versions in respect of
the other charges. The failure to do that, counsel submitted, led to
an unreasonable
award.
[47]
The appellant maintained further that there was insufficient evidence
that his behaviour was unwelcome
or perceived as offensive, and thus
it could not constitute sexual harassment. Additionally, even if the
charges satisfied the
requirements for such harassment, it should not
have
resulted in dismissal, considering the policy
requires progressive discipline.
[48]
The appellant’s submission about the findings on charge 3 is
misleading and does not provide
a basis for rejecting the credibility
of the complainant. The arbitrator did not “acquit” the
appellant on charge 3
on the basis that the complainant was
untruthful. He found (probably incorrectly) that the complainant had
not alleged that the
appellant sexually harassed her on that occasion
but only testified that he did not respect her personal space. The
department
failed to prove sexual harassment on a balance of
probabilities. There is no reason to conclude that the complainant
lied about
what happened.
The submission that the arbitrator
ignored “crucial evidence” is also unfounded. Of the 21
listed examples, 19 of them
relate to charge 3. The arbitrator’s
ignoring of that evidence, if he indeed ignored it, would not have
affected the outcome
on charge 3 which was favourable to the
appellant.
[49]
The other evidence the arbitrator is alleged to have ignored is that
the appellant and the complainant
exchanged photographs of the trip
and the complainant used one of these as her Facebook profile
photograph. The contention is not
entirely correct. The arbitrator
referred in passing to the messaging and the complainant’s
explanation for its positive
tone. He most likely did not consider it
sufficiently relevant to his ultimate findings.
[50]
As for the assessment of credibility,
the evidence
in respect of charges 1 and 4 is largely common cause. The appellant
admitted that around the time he referred to a
“pseudo date”
while travelling to Stilbaai he touched the complainant’s leg
thereby causing her visible discomfort.
He vacillated between having
“accidentally” touched her leg and having just touched it
in a “friendly”
manner. He also admitted that he invited
the complainant to swim naked. There too the difference between the
two witnesses was
one of inference and interpretation. The appellant
considered it a joke. Considering the evidence of the first report to
Roos and
later to the other doctors, the complainant clearly did not.
To her it was unwelcome.
It is thus not
correct to say that t
he arbitrator was
presented with mutually irreconcilable and contradictory versions on
key aspects of the charges. He was not. Certainly
in relation to
charges 1 and 4, and to a lesser extent charge 2, the decisive
consideration was whether the proved facts permitted
a reasonable
inference of sexual harassment. That, as the arbitrator correctly
held, is more a question of probability and legal
inference than one
of credibility.
[51]
The question the Labour Court was required to consider was whether
the outcome reached by the arbitrator
was not one that could
reasonably be reached on the evidence and other material properly
before the arbitrator. The relevant outcome
reached by the arbitrator
was that the dismissal was substantively unfair but that
reinstatement was not the appropriate remedy.
The method to be
followed in reviewing arbitration awards was enunciated in
Herholdt
v Nedbank Ltd
(Congress
of SA Trade Unions as Amicus Curiae)
[4]
as
follows:
‘
That
test involves the reviewing court examining the merits of the case
“in the round” by determining whether, in the
light of
the issues raised by the dispute under arbitration, the outcome
reached by the arbitrator was not one that could reasonably
be
reached on the evidence and other material properly before the
arbitrator…The reasons are still considered in order to
see
how the arbitrator reached the result. That assists the court to
determine whether that result can reasonably be reached by
that
route. If not, however, the court must still consider whether apart
from those reasons, the result is one that a reasonable
decision-maker could reach in the light of the issues and the
evidence.’
[52]
The arbitrator’s finding in relation to inconsistency was not
rationally connected to the evidence.
Nel was acquitted of the
charges against him because the evidence was insufficient since the
complainant had conceded that her
interactions with Nel did not
amount to sexual harassment. The parity principle does not require
guilty offenders to be treated
in the same way as those found not
guilty of a similar offence because the employer could not prove the
alleged misconduct. In
so far as the arbitrator held that the
dismissal was substantively unfair only because of inconsistency, and
would otherwise have
been substantively fair, the result reached by
the route he followed was not reasonable. The Labour Court did not
err in reaching
that conclusion. However, in accordance with the
method in
Herholdt
, that is not the end of the enquiry. The
court must still consider whether apart from those flawed reasons,
the result remains
reasonable in light of the issues and the
evidence.
[53]
The evidence in relation to charge 4 (the leg touching) laid a sound
basis to reasonably conclude that
the appellant had committed sexual
harassment. The manner in which the appellant sought to explain the
leg touching, equivocating
between a friendly and accidental touch;
the common cause fact of the complainant’s discomfort and
evasion; and the contemporaneous
discussion of a “pseudo date”,
cumulatively provided a sufficient evidentiary basis for the
arbitrator to conclude
that the touch was unwelcome physical conduct
with sexual undertones.
[54]
The appellant’s “joking” proposal that the
complainant swim naked (charge 1) was
likewise inappropriate conduct
on the part of a head of department in conversation with a young,
attractive female intern for whose
supervision he was responsible.
The remark crossed a boundary by conjuring an image of the intern
naked and the possibility of
sexual appreciation and connotation. All
the more so when it was preceded by the appellant’s other
behaviour, including the
inappropriate leg touching and his supposed
setting of the boundaries of a “pseudo date” at dinner in
Stilbaai in which
he evoked the possibility of sexual interest,
purportedly only to dismiss it. Jokes and unwelcome graphic comments
are verbal conduct
of a sexual nature which may be sexual harassment.
[55]
The appellant baldly denied that he made an innuendo about having an
affair. The evidence most favouring
the complainant’s version
is the appellant’s admission of the discussion he initiated
about extra-marital affairs on
the journey between George and
Riversdale.
The appellant’s tactless
discussion about his personal sex-life with a junior colleague gives
some credence to the allegation
that he was hinting at an affair. As
the arbitrator correctly observed, the complainant’s
interpretation of the appellant’s
intentions is further
bolstered by his repeated refrain about a “pseudo date”
later that day. The arbitrator’s
conclusion on this charge was
accordingly reasonable.
[56]
In the final analysis, therefore, the appellant committed three
counts of sexual harassment, which
admittedly at first glance were
not gross in nature. However, when assessed cumulatively, with regard
to the surrounding circumstances,
the appellant’s position and
responsibilities, and the appellant’s behaviour throughout the
trip, the misconduct is
nonetheless serious.
[57]
The charges against the appellant were narrowly drawn. He was not
charged with the ongoing or continuous
sexual harassment to which the
complainant alluded in her evidence. The issue remains though whether
the findings on the three
charges provide a sufficient basis to
conclude that dismissal was the appropriate sanction. When deciding
whether or not to impose
the penalty of dismissal, the employer may
in addition to the gravity of the misconduct consider factors such as
the employee’s
position in the organisation, the nature of his
job and the circumstances of the infringements.
[5]
In other words, when determining the substantive fairness of the
dismissal, the three proven instances of misconduct fall to be
construed within the context of the appellant’s behaviour
overall. An
arbitrator
is generally required to examine the circumstances surrounding the
dismissal and to make a judgment on whether the totality
of those
circumstances, including but not limited to the proven misconduct
with which the employee was charged, has rendered a
continued
employment relationship intolerable. The question of intolerability
generally addresses trust relationship issues between
the employer
and employee.
[6]
There must be a
rational connection between the factual circumstances and the
conclusion of intolerability or a breakdown in the
trust
relationship.
[58]
The arbitrator held that despite his finding of substantive
unfairness the appellant’s blameworthiness
and contravention of
the rule against sexual harassment militated against ordering
reinstatement or re-employment because a continued
employment
relationship had become intolerable. The trust relationship was
irretrievably damaged. The arbitrator erred in not concluding
that in
such light dismissal was in fact the appropriate sanction. His error
on this issue was material and led to the unreasonable
outcome that
the dismissal was substantively unfair. As the Labour Court correctly
held, the arbitrator unreasonably ignored the
seriousness of the
misconduct and the circumstances in which it was committed. The
conclusion of the Labour Court is fortified
by additional
considerations that it did not mention, but which appear in the
record and of which it and the arbitrator were evidently
aware.
[59]
One thing that can be said with certainty is that the appellant had
sex on his mind during the outreach
trip he took with the complainant
to Riversdale. On the first leg of the journey, he talked about his
extra-marital affairs and
hinted at having one with the complainant;
on the trip to Stilbaai he spoke of a “pseudo date” and
inappropriately
touched the complainant’s leg; at dinner, he
gave a little speech advising the complainant to restrain any sexual
interest
she might have in him; at the guesthouse, he stood in front
of her bedroom door, took her by the shoulders, looked deeply into
her eyes and suggestively hoped for a kiss which was unforthcoming;
the next day he spoke of a grand finale; he invited her
to swim naked
in front of him, conjuring the image of her naked body; he made
repeated references to her attractiveness, her body
and her hair; and
subsequently engaged in a flirtation on “whatsapp”
describing her as “a perfect lady”.
[60]
The appellant’s own account of his cautioning the complainant
at dinner in Stilbaai to maintain
a professional distance and avoid
any sexual designs on him, besides its pathos, is especially
revealing. As counsel rightly asked,
one has to wonder what prompted
the appellant to say such a thing. The complainant is a young woman.
She testified that she did
not find the appellant attractive and had
not communicated otherwise. The assumption in his “pseudo date”
speech that
she might have any sexual interest in him, in respect of
which he, the more mature protagonist, had to impose professional
boundaries,
discloses an unconscious projection that surely would
have propagated an embarrassing and uncomfortable experience for the
complainant;
and adds credence to both the complainant’s
account of what occurred outside her bedroom door a few hours later
and her testimony
regarding his comments about a grand finale and her
shoes the next morning.
[61]
Conduct of this order on the part of a consultant anaesthesiologist
and head of department, with responsibility
for supervising young
female interns and medical students, has undoubtedly compromised the
substratum of trust required for the
continuation of an employment
relationship. The appellant’s disrespectful behaviour reflects
a lack of insight into the power
dynamic or imbalance and is
demeaning of the relationship between superior and subordinate. The
department, the George Hospital
and the University of Cape Town
justifiably would prefer not to have such a man in charge. As
employers and educators, they have
a duty to provide a safe and
healthy work environment for their employees and students, including
protection from senior employees
of predatory disposition.
[62]
In the premises, the arbitrator’s decision that the dismissal
was substantively unfair was unreasonable
and the Labour Court did
not err in modifying the award on that basis.
[63]
This is a matter in which costs fairly should follow the result.
[64]
In the premises, the appeal is dismissed with costs.
_________________
JR Murphy
Acting Judge of Appeal
I
agree
I agree
_________________
DM Davis
Judge of Appeal
__________________
R Sutherland
Judge
of Appealt
APPEARANCES:
FOR THE APPELLANT:
Adv R Steltzner SC
Instructed by: Brand &
Van der Bergh Attorneys
FOR THE FIRST RESPONDENT:
Adv J
van der Schyff
Instructed
by the State Attorney
[1]
Assamang
Ltd (Assamang Chrome Dwarsrivier Mine) v CCMA and others
[2015]
6 BLLR 589
(LC) para 49.
[2]
Act
66 of 1995.
[3]
As
contemplated in section 193(2)(b) of the LRA.
[4]
[2013]
11 BLLR 1074
(SCA) para 12.
[5]
Item
3(4) of Schedule 8 of the LRA.
[6]
Potgieter
v Tubatse Ferrochrome & others
(2014)
35 ILJ 2419 (LAC) para 37.