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[2021] ZALAC 30
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Cape Peninsula University of Technology v Mkhabela (CA12/2020) [2021] ZALAC 30; (2021) 42 ILJ 2384 (LAC); [2021] 12 BLLR 1187 (LAC) (27 September 2021)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN)
Reportable
Case
no: CA 12/2020
CAPE
PENINSULA UNIVERSITY OF
TECHNOLOGY Appellant
and
OCTAVIA
MKHABELA Respondent
Heard:
02
September 2021
Delivered:
27
September 2021
Coram:
Davis
JA, Coppin JA and Kubushi AJA
JUDGMENT
DAVIS
JA
Introduction
[1]
The
dispute which gave rise to this appeal began before the court
a
quo
on the basis of
a claim brought by the respondent that she had been “constructively
dismissed”, as that term is defined
in
s 186(1)
(e)
of the
Labour
Relations Act 66 of 1995
. Regrettably, the statement of case was
drafted with an exquisite lack of precision which rendered it
difficult to precisely determine
the respondent’s exact cause
of action. After submitting that this was a case of constructive
dismissal, the statement of
claim reads as follows:
‘
The
dismissal of the Applicant constitutes an automatically unfair
dismissal in terms of
s 187(1)(f)
of the LRA and/or
s 6(1)
of the EEA
in that, among others:
1.
The
respondent automatically unfairly dismissed the applicant due to
harassment or conduct relating to harassment.
2.
No
valid and/or fair reason existed for the respondent not to convene a
hearing to deal with the grievances of the applicant;
3.
That
the arbitrary discrimination suffered by the applicant was based on,
inter alia,
her conscience, as far as it relates to conducting herself in
accordance with the respondent’s policy framework and/or her
belief and/or political opinion or a combination of any of these.
’
[2]
To
some extent there was a belated attempt to clarify the issues which
the court
a quo
was required to decide in the pre-trial minute in which the key
issues are set out thus:
‘
Whether the
respondent created or allowed an environment that was unbearable
and/or intolerable for the applicant.
Whether the applicant was
constructively dismissed.
Whether the applicant was harassed in
terms of s 6 (3) of the Employment Equity Act.
Whether the applicant’s
dismissal, if it is found that she was constructively dismissed,
constituted an automatically unfair
dismissal.
Whether the applicant is entitled to
any relief and, if so, the nature of such relief.’
[3]
Sitting
in the court
a quo
Rabkin-Naicker J held, insofar as the alleged dismissal dispute was
concerned, that no dispute had been referred to conciliation,
and
there was no evidence that the true nature of the dispute was an
automatically unfair dismissal, constructive or otherwise.
Accordingly, the learned judge found that she did not have
jurisdiction to decide the dismissal claim. However, she found that
the respondent had suffered unfair discrimination within the meaning
of s 5 and s 6 of the Employment Equity Act 55 of 1998 (the
EEA) and
that the respondent should thus be awarded in an amount
equivalent to 13 months of her salary.
[4]
It
is against this finding that the appellant has approached this Court.
Given that there was no cross-appeal with regard to the
unfair
dismissal claim, the only issue before this Court is whether the
finding of unfair discrimination in terms of s 5 and s
6 of the EEA
should be set aside on appeal.
The facts
[5]
Most
of the facts which are relevant to the disposition of this appeal are
common cause. The respondent commenced employment with
the appellant
on 1 August 2015 in the position of Executive Director: Office of the
Vice Chancellor in terms of a fixed term contract
for a period of
five years. This contract provided that she was required to report to
Dr Nevhutalu, the Vice Chancellor of the
appellant. In May 2016, she
was requested to act in the position of Executive Director: Human
Capital Portfolio and commenced her
duties in this position on 1 July
2016. On 31 October 2016, Professor John Volmink was appointed as the
Acting Vice Chancellor
of the appellant.
[6]
During
the latter of 2016, there was considerable unrest on the campus.
A meeting, which was referred to in the papers as
having taking place
at the Sanlam Centre, was convened in which the respondent, Professor
Volmink and the Deputy Vice Chancellor:
Knowledge Information
Technologies Services, Professor Louie Fourie were all present.
Fourie made a presentation concerning,
inter
alia
, the safety
and security on the appellant’s campuses during this period of
unrest which had flowed from the Fees Must Fall
campaign.
[7]
It
appears that the respondent was disturbed by the security strategy
which had been outlined by Fourie, including the use of dogs
to curb
the unrest on the campus. She responded by asking a series of
questions including “how could we in 2016 be talking
of the
security strategies of 1976?” and “who would be
responsible for implementing a strategy that was developed outside
of
the line function as IDFM was not involved and whether the applicant
could present a IT strategy which is not in the applicant’s
portfolio.”
[8]
According
to the respondent, her comments enraged Fourie who “came to me
like a raging bull pointing at me and gesticulating
and the Acting
Vice Chancellor (Professor Volmink) sat there and did nothing. This
harassing trend on the part of Professor Fourie
continued unabated
and he continued to behave as the anointed chief barking instructions
and interfering with the HC portfolio
that has nothing to do with
him. I felt abused and harassed by Professor Fourie and given the
time of his behaviour I cannot but
attribute this to the Acting Vice
Chancellor as it never manifested in the previous regime.” She
also testified that, as
Fourie moved aggressively towards her, she
had push her head backwards in order to prevent his finger from
reaching her forehead.
She considered that she was now working in
hostile environment and had been degraded by this experience.
[9]
As
a result of this meeting, she complied a detailed report headed
“Situation that makes managing human capital portfolio
unbearable” which was directed to the Acting Chairman of
Council and copied to Professor Volmink. Apart from documenting
her
experience at the Sanlam meeting, she also referred to the difficulty
which she encountered in executing the duties of the
human capital
portfolio “due to the tendency of the Acting Vice Chancellor to
make decisions without any consultation or
reference to policy”.
She also complained that a whole range of matters which concerned
employees represented by NEHAWU had
been dealt with by the Acting
Vice Chancellor without any notification to her, as the officer
responsible for human capital, and
that no attempt was made by Prof
Volmink to involve her in issues which fell within the scope of her
human capital portfolio. She
also noted that “I have on
numerous occasions raised the issue of full financial impact of
insourcing and this has been ignored
and I have heard in various
council sub-committees that insourcing is going to be within contract
costs. From the HC perspective
that is not feasible as the insourced
workers would have to progressively enjoy the same benefits as
everyone else.’
[10]
The
respondent also referred to a letter generated by Fourie to a range
of members of staff including student and union representatives
of 30
May 2017 in which he said the following:
‘
It is with a
deep concern in my heart that I am writing this e-mail. Over the past
few months it has become incredibly difficult
for the committee to
make any progress, especially because Dr Octavia Mkhabela does not
agree with the insourcing process and do
not recognize the RRTT or
sub-committee as legitimate structures of CPUT. This has led to
numerous disappointments, slowing of
the process, lack of cooperation
and even conflict. The latest development was her recent refusal to
recognize my leadership of
the management insourcing team as
nominated at the insourcing workshop or to report to me in this
regard.
In the light of the
above I thus hereby request you as VC and the RRTT to appoint a new
Chair of the RRTT insourcing committee as
I do not see my way forward
to continue in this capacity under these negative and hostile
circumstances that is putting CPUT at
serious risk.
’
[11]
The
respondent testified that in her view the contents of this email “set
the stage for the attack on her on 24 July 2017”
at an
emergency meeting had been called in the light of the unrest on the
campus. Students then gained entry to the meeting and
when she looked
at her mobile phone a student said “are you taking pictures”.
The students had become increasingly
aggressive, particularly when
they were asking “which one is Mkhabela.”
[12]
Following
her letter of complaint, she received a response from the Chairperson
of the Council on 28 June 2017 in which the chairperson,
Ms Nojozi
wrote:
‘
This serves
to inform you that your letter of complaint on the situation in Human
Capital and the subsequent reports and letters
were brought to the
attention of the Council at its meeting held on 24 June 2017 via the
EXCO and the Deputy Chairperson’s
report. Council carefully
considered this matter and decided on a totally new path and process
for dealing with your complaint
by mandating the Chairperson of
Council to reconsider this matter with a fresh approach. We therefore
request you to ignore and
discard all other communication in response
to your letter pending the finalisation of this matter by the
Chairperson of Council
and final report to all those affected.
We assure you that
your matter will be dealt with the governance principles and values
and in the best interests of the University.
’
[13]
On
31 October 2017, she resigned with immediate effect from her
employment with the appellant. In her letter, she wrote thus:
‘
I returned
to CPUT with a great deal of trepidation following personal attacks
on my person, both figuratively and literally as
a result of
malicious rumours spread about me that led to the events of July 24
2017. I believe this could have been avoided, had
Council not chosen
to ignore my grievance.
My stay in the institution in the past
6 weeks has proven to be detrimental to my safety and psychological
and emotion wellbeing.
I therefore have no choice but to tender my
resignation with immediate effect.’
The court a quo
[14]
Rabkin-Naicker
J considered that two events were critical to the determination of
the respondent’s case; the meeting which
had taken place to
respond to campus unrest in which the respondent had been threatened
by students and the behaviour of Professor
Fourie and others at the
so-called Sanlam meeting. She also placed considerable emphasis on
the email which had been generated
by Fourie in arriving at the
following conclusion:
‘
It is not
necessary to deal with the issues of whether the email was the
proximate cause of the harassment in determining the unfair
discrimination claim. The applicant was harassed in the Boardroom and
in the building that day. She was singled out and was the
target of
threatening behaviour by students and workers on that day. On the
Court’s finding above, she was also the subject
of harassment
at the Sanlam meeting. This harassment was directed at her because of
her views on the policy direction the University
was taking which was
not being undertaken in line with the precepts governing the
institution. It seems to me that this arbitrary
ground of
discrimination on which she relies is palpably one that can be
understood as one which has attributes which can demean
the dignity
of an individual. Experiencing harassment for her views, in the
academic environment can be seen as an aggravating
factor.’
[15]
On
the basis of this finding, Rabkin-Naicker J found that the respondent
had been subjected to unfair discrimination within the
meaning of s 5
and s 6 of the EEA and consequently an award of compensation was
justified. It is against the justification of this
finding that the
appellant has brought this appeal before this Court.
The applicable law
[16]
In
her claim, the respondent submits that her “dismissal”
contravened s 6 of the EEA in that:
‘
[
t]he
arbitrary discrimination suffered by the applicant was based on,
inter alia
,
her conscience as far as it relates to conducting herself in
accordance with the respondent’s policy framework and/or her
belief and/or political opinion or a combination of these
.’
(my emphasis)
[17]
Section
6 (1) of the EEA provides that no person may unfairly discriminate,
directly or indirectly, against an employee, in any
employment policy
or practice on one or more grounds, including race, gender, sex,
pregnancy, marital status, family responsibility,
ethnic or social
origin, colour, sexual orientation, age, disability, religion, HIV
status, conscience, belief, political opinion,
culture, language and
birth.’ To the extent relevant, s 6 (3) provides that
harassment of an employee is a form of unfair
discrimination that is
prohibited on any one, or a combination of the grounds of unfair
discrimination listed in subsection (1).
[18]
It
appears from the statement of claim that the respondent relied on
three grounds listed in s 6(1) of the EEA, namely, conscience,
belief
and political opinion. It is instructive that she did not rely on any
unlisted ground of discrimination. To the extent that
an analogous
ground of discrimination was relied on in argument it is relevant to
note, as was held by the Constitutional Court
in
Harksen
v Lane N.O.
[1997] ZACC 12
;
1998
(1) SA 300
(CC) at para 43, that discrimination on an unspecified
ground arises “if it is based on attributes or characteristics
which
have the potential to impair the fundamental dignity of persons
as human beings or to affect them in a comparably serious manner.”
[19]
The
concept of belief does find some parallel in s 15(1) of the
Constitution of the Republic of South Africa, 1996 which guarantees
a
right of everyone to freedom of conscience, religion, though, belief
and opinion. The combination of these rights in one section
appears
to signify the protection of the right to hold the religious belief
of a person’s choice together with the right
to entertain
agnostic or atheist views and other beliefs. The fact that the right
extends beyond religion indicates that the scope
of its protection
extends beyond protecting the right to belief in a supreme being. See
De Vos and Friedman eds
South
African Constitutional Law and Context
(2ed) at 614 – 615.
[20]
The
phrase “political opinion” cannot be extended to apply to
any and every opinion in any matter whatsoever. Its scope
must be
read within the context of conscience and belief which appear in the
same section. Read thus the term rather refers to
a broad category of
attitudes that a person might hold on matters of concern to her
concerning
the state, government or society. I have in mind as the contours of
‘opinion ‘
a
view that is (1) a matter of public concern, (2) expressed in a
way that makes it hard to prove whether it is true or false,
and (3)
cannot be reasonably interpreted to be a factual statement about
someone or something.
[21]
In
the light thereof, it is important to emphasise that the respondent’s
case was based upon the conduct of Professors Fourie,
and to an
extent Volmink, as constituting harassment, in that students and
workers’ representatives were abusive towards
the respondent
and neither Fourie, nor Volmink, came to her assistance. In addition,
Fourie’s aggressive behaviour at the
Sanlam meeting constituted
a form of harassment, as was the statement of Professor Volmink that
there was “a pocket of resistance
that needs to be dealt with”
which the respondent regarded as having been targeted at her conduct,
and thus constituting
discriminatory conduct in terms of s 6 (1) and
(3) of the EEA. Significantly, the court
a
quo
held that ‘the
emails sent to students and workers by Professor Fourie make the
issue of where “the pockets of resistance
statement was made of
minor importance”.’
[22]
In
the final analysis the core finding of the court
a
quo
was that
Fourie’s conduct at the management committee meeting held at
the Sanlam Centre in November 2016 constituted harassment.
There is
no question on the papers that Fourie had taken aggressive issue with
the respondent’s suggestion that he was motivating
for the use
of apartheid era security measures, particularly the use of dogs as
part of the safety and security plan during ongoing
student protest.
The email which Fourie generated on 30 May 2017 referred to the
respondent contained the following: “It
has become increasingly
difficult for the committee to make any progress especially because
Dr Octavia Mkhabela (respondent) does
not agree with the insourcing
process and do not recognise the RRTT or subcommittee as legitimate
structures of CPUT.”
[23]
Regrettably
the court
a quo
failed to examine whether this conduct constituted harassment under
the EEA, particularly the conduct that was linked to the three
listed
grounds on which the respondent had based her case, namely
conscience, belief or political opinion.
Conclusion
[24]
The
essence of the claim brought by the respondent in terms of the
ill-drafted statement of claim was that her claim was predicated
on
the existence of a constructive dismissal. This component of her case
was not upheld by the court
a
quo
and there was
no cross-appeal in respect of this finding. On its own and based on
the case set out in the statement of claim, there
is a sufficient
ground to dismiss the appeal. The evidence upon which the court
a
quo
made its
finding of harassment were based essentially on the Sanlam meeting
and the contents of Fourie’s email. As indicated,
neither of
these pieces of evidence would justify a finding of discrimination on
one of the three grounds pleaded by the the respondent,
namely,
belief, conscience or political opinion. Even though an analogous
ground was not pleaded the court
a
quo
strayed into
this area. As indicated on the strength of
Harksen
v Lane
, however,
there would be no basis by which to extend the category of analogous
grounds to any opinion, belief or aspect of conscience
outside of
that which I set out earlier in this judgment.
The reinstatement of
the appeal
[25]
Rule
5(8) of the Rules of this Court requires an appellant to deliver the
record of appeal within 60 days of the order granting
leave to
appeal, failing which the appeal is deemed to be withdrawn. Leave to
appeal was granted by the court
a
quo
on 4 September
2020 and the record was delivered on 9 December 2020; that is 7 days
outside of the prescribed period. The appellant
duly applied for the
reinstatement of the appeal which was opposed by the respondent. An
explanation was provided for this delay
in an affidavit provided by
the appellant’s attorneys; in essence the transcribers only
managed to obtain the correct audio
files on 30 November 2020 and
completed the task on 8 December 2020 causing the record to be
delivered 7 days outside of the prescribed
period. Given the approach
that I have adopted to the merits of this case together with the
short delay which is explained, there
is no basis by which to refuse
the application to reinstate the appeal which therefore is
reinstated.
[26]
For
all of these reasons therefore the order of the court
a
quo
of 15 June 2020
is set aside and replaced with the following:
‘
The
application is dismissed with costs.’
[28] As
no costs order was sought on appeal there is no order as to costs
insofar as the appeal is concerned.
Davis
JA
Coppin
JA and Kubushi AJA concur.
APPEARANCES:
FOR THE
APPELLANT: GA
Leslie SC
Instructed
by Mcaciso Stansfield Inc.
FOR THE
RESPONDENT: RA Arcangeli
Instructed
by Ranthako Attorneys.