Department of Labour v General Public Service Sectoral Bargaining Council and Others (PA3/08) [2010] ZALAC 1; (2010) 31 ILJ 1313 (LAC) (29 January 2010)

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[2010] ZALAC 1
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Department of Labour v General Public Service Sectoral Bargaining Council and Others (PA3/08) [2010] ZALAC 1; (2010) 31 ILJ 1313 (LAC) (29 January 2010)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
Case
Nr: PA3/08
In
the matter between:
THE DEPARTMENT OF
LABOUR Appellant
VERSUS
THE GENERAL PUBLIC
SERVICE
SECTORAL
BARGAINING COUNCIL 1st Respondent
COMMISSIONER
M. FOUCHE 2
nd
Respondent
A.
FERREIRA 3
rd
Respondent
W.
OLIPHANT 4
th
Respondent
Judgment
Tlaletsi
AJA:
Introduction
[1]
This
is an appeal against the judgment and order of the Labour Court
handed down on 28 September 2007, pursuant to an application
which
was brought by the third and fourth respondents (“the respondents”)
in terms of section 158(1)(g) of the Labour Relations
Act 66 of 1995
(“the Act”), to review and set aside second respondent’s award
in the arbitration proceedings which were held
under the auspices of
first respondent pertaining to allegations of unfair dismissal of the
respondents.
[2]
In
the award the second respondent (“the commissioner”) held that
the dismissal of the respondents was substantively fair but
procedurally unfair and made no award for compensation. The Court
a
quo
on review made an order on the following terms:
“
1.
The
arbitration award of the second respondent dated 7
th
June 2004 in this matter is reviewed and corrected.
2.
The
dismissal of the two applicants from the employ of the third
respondent was substantively and procedurally unfair
.
3.
The
third respondent is directed to re-instate the two applicants without
retrospective effect, as from 15 October 2007
.
The
last aspects relates to the cost order. No cost order is accordingly
made
”.
The
appellant applied for leave to appeal and same was granted on 1
September 2008 by the Labour Court.
Factual
background
[3]
The
following facts are either common cause or not in dispute.
During
July 2002 a contingent of the appellant’s employees attended a
training course at an out-of-town venue, namely the Mpekweni
Sun
Hotel, near Port Alfred. They travelled from Port Elizabeth and
arrived at the venue on Sunday 21 July 2002. The course commenced
on
22 July 2002. The two respondents as well as Ms [R] (“the
complainant”) were part of the delegation.
[4]
After
the first day of the course, and whilst the complainant was in her
hotel room, she received a telephone call from third respondent
who
was in the company of fourth respondent. Third respondent enquired
from the complainant whether she was alone in her room and
whether he
and fourth respondent could visit her. The complainant informed third
respondent that they were not welcome to visit her.
Third respondent
then responded by stating that:
“Now
that you are at Mpekweni you will come a lot
”.
These
remarks were understood by the complainant to be intended in a sexual
context.
[5]
After
the aforesaid remark, fourth respondent took the telephone and asked
the complainant who was in her room and, whether it was
a “
black
guy
”.
The complainant was upset and called him a “
pig
”.
The fourth respondent then said to her
“if
you ride in that car you will surely die”
.
This remark in the context in which it was said was understood to
mean that should the complainant sleep with “
the
black guy
”
she would die. She immediately dropped the receiver to end the call.
[6]
Later
in the evening the complainant was in her room with a certain Ms
Carelse who was helping her with her hair. Two other colleagues
joined them. They were Messrs Davids and Bezuidenhout. The two
respondents later entered the room. At that time Ms Carelse was busy
blowing the complainant’s hair with a hair dryer. The third
respondent touched the complainant’s hair and asked her to give him
a “
blow-job
”.
Everybody else laughed except the complainant who got offended. She
did not think that to be a joke.
[7]
It
would appear that the respondents felt unwelcome. They decided to
leave. As they were leaving the room the third respondent said
the
following to the complainant;
“weet jy hoe lyk jy met jou hare wat so in jou oë hang? Jy lyk net
soos ‘n jagse spinnekop”.
By these
Afrikaans remarks he
meant
that the complainant looked like a randy spider because of her hair
that was hanging over her eyes. This time, nobody, including
the two
male persons in the room laughed. The complainant was upset by all
these remarks and she cried. Ms
Carelse told her not to allow the
respondents to speak to her like that.
[8]
Once
the respondents had left, the complainant reported the incident to
her colleague, Mr Mali. She was in tears when she did so.
Mali tried
to calm her down. She also went to her other colleague Mr Alfred
Cakata (“Cakata”) and made a report to him. According
to the
complainant Cakata was “
working
closely
”
with the respondents and she thought that he would speak to them and
also make it clear to them that she was upset about what
happened.
[9]
The
following day the complainant attended the course presentation. She
could not concentrate as she was upset. Ms Carelse had reported
the
incident to the lecturer who presented the course. The lecturer
excused the complainant from attending the course presentation
for
that day. She did however attend lectures for the rest of the week.
She was not in the same lecture as the respondents. She tried
all
means possible to avoid meeting the respondents during her stay at
the hotel. She ignored them and did not greet them whenever
she met
them.
Cakata also reported to her that he had advised the
respondents to apologise to her as they had offended her. It is
common cause that
the respondents did not offer any apology to the
complainant.
[10]
On
Friday 26 July 2002 and on the journey back to Port Elizabeth, the
complainant found herself in fourth respondent’s motor vehicle.
She
had been reluctant to be a passenger in his motor vehicle. She had
endeavoured to secure alternative transport without success.
All the
other motor vehicles travelling back to Port Elizabeth were fully
occupied. In the motor vehicle the complainant was sitting
quietly
between Mali and Ms Marala at the back seat. During the drive, fourth
respondent asked Mali if the complainant was sleeping
on his lap and
what did she have in her mouth. By this he suggested that the
complainant had bowed on to Mali’s lap and had “
something
”
in her mouth. The complainant became disgusted as a result of this
remark. She kept quiet until they reached their destination.
[11]
The
complainant reported the incidents to her superior on her return to
the office. The matter was investigated by the
Department. The
investigation culminated in a disciplinary hearing. The complainant
was granted special leave in order to prevent
contact with the
respondents and also to allow her to undergo counseling. She
consulted her medical doctor who referred her to a
psychiatrist and a
psychologist for further treatment. She received counseling for the
incident.
[12]
It
is common cause that the respondents were charged for misconduct
relating to sexual harassment. Separate enquiries presided by
the
same chairperson were held. The respondents were found guilty. The
chairperson recommended dismissal as the appropriate sanction
to be
imposed for the misconducts.
[13]
On
13 February 2003, the Director- General of the appellant sent
identical letters to the respondents in which the following was,
inter
alia
,
stated .That:
the
chairperson of the enquiry had recommended a sanction of dismissal;
the
department was willing to explore an alternative sanction short of
dismissal being final written warning coupled with suspension
from
duty without pay for a period of three months;
the respondents
should consider the aforementioned alternative sanction with their
union representatives;
should
they agree to the said alternative sanction of dismissal, to
forward their written consents within five days of receipt
of the
letter;
should
they not accept the alternative sanction that they should convey
their rejection in writing and in which event the Director-General
would have to impose the sanction of dismissal as recommended by
the chairperson of the enquiries.
[14]
On
19 February 2003 the respondents responded by each writing identical
letters to the Director-General. In the letters the respondents
expressed their opinion that the proceedings against them were not
substantively and procedurally fair. They based their contention
on
the fact that the charges were not “
correctly
phrased
”;
that their constitutional rights had to be protected and that they
hoped that the decision that would be taken would be in the
interests
of fairness and justice. The letters concluded by stating that:
“
I
finally leave the decision of the sanctioning in the very capable
hands of yourselves, not forgetting the repercussions to myself
as
well as the entire office who also has expectations similar to mine.”
[15]
On
18 March 2003 the Director-General replied by sending identical
letters to the respondents in which he informed them that:
15.1 he
had decided to concur with the sanction pronounced by the chairperson
of the disciplinary hearing;
15.2 they were
discharged from the Public Service with effect from the date of
receipt of the letter; and
15.3 they
had the right to appeal to the Departmental Appeals Authority within
five working days of receipt of the letter.
[16]
Indeed
the respondents lodged their appeals on 18 March 2003. On 26 March
2003 the chairperson of the Appeals Authority wrote letters
to them
informing them that a hearing was held on 9 May 2003 and that it was
decided that the appeals be dismissed on the basis that
the grounds
of appeal were found to be irrelevant.
Arbitration
proceedings
[17]
Aggrieved
by the said decision, the respondents referred a dispute of unfair
dismissal to the first respondent. The dispute was conciliated
on 8
August 2003 and could not be resolved. A certificate to the effect
that the dispute remained unresolved was issued and the matter
was
subsequently referred to arbitration.
[18]
At
the arbitration the complainant as well as Ms Carelse, Mali, Ms
Marala and Ms Julia Kenyane who was the chairperson of the
disciplinary
enquiries, testified on behalf of the appellant.
The
respondents also testified and called Messrs Davids and Bezuidenhout
as their witnesses.
[19]
In
brief, the complainant’s evidence was corroborated by the other
witnesses. Most of the appellant’s version of the event was
unchallenged. The defence put up by the respondents was the denial
that they were guilty of misconduct and accused the complainant
of
fabricating a case against them and attempting to falsely implicate
them in sexual harassment. They admitted to making what they
referred
to as innocent jokes which according to them did not have a sexual or
any other inappropriate content.
[20]
The
commissioner rendered a detailed award in which she recognized that
the parties had conflicting versions of the events and considered
the
probabilities and improbabilities in the respective versions as well
as the credibility of the respective witnesses. The chairperson
found
the dismissal of the respondents for misconduct to be substantively
fair. She however found the procedural component of the
decision to
be unfair due to the delays encountered from the date of the
complaint up to the stage of communication of the outcome
of the
investigations. It shall not be necessary to refer to the analysis of
the evidence by the commissioner in relation to her
finding the
respondents guilty of misconduct in view of the concessions made on
behalf of the respondents on appeal.
Labour
Court Proceedings
[21]
Once
again the respondents were aggrieved by the award of the commissioner
and launched review proceedings to the Labour Court. The
initial
grounds of review relied upon were that the commissioner failed to
apply her mind to the necessary inferences to be drawn
from the
evidence presented; that she took into account irrelevant
considerations in arriving at her determination; the decision
arrived
at is grossly unreasonable both on facts and in law and that her
decision is not justifiable in relation to the reasons given
for it.
[22]
The
founding affidavit was later supplemented to include the averments
that the commissioner should have found that the respondents
did not
consider their conduct to be offensive or unacceptable to the
complainant; that the dismissal was substantively unfair; and
further
that the sanction imposed induces a sense of shock and alarm, and
finally, that the sanction is not justifiable in relation
to the
reasons given for it.
[23]
The
Court
a
quo
found as follows with regard to the misconduct:
“
If
you look at the utterances themselves, you look at how she reacted,
indeed her demeanor was enough to show, when everybody was
laughing
and she is sitting there in a very upset condition, she was
demonstrating to them that she was unhappy with what they did.
In my
view therefore, the Arbitrator produced an award in terms of the
infraction, she produced an award which is justifiable an
award in
terms of the infraction, she produced an award which is justifiable
an award, which is rational when it is seen against
evidential
material that was before her. Notwithstanding the fact that the
complainant did not verbalise her denunciation her demeanor
was more
than good enough to show them. It must be borne in mind that when she
so acted she was in her room. What else could she
do? If she was in
another person’s room perhaps one would speculate and say she
should have walked out. She should have done this
and that but this
as within her own comfort zone, she was with her own friend and she
reacted in a way that her friend saw what was
going on and they
similarly should have seen the upset condition in which she was and
that clearly was a reaction to utterances to
sexual nature and
therefore in my view the award was defendable to the extent that it
relates to the infraction.”
The
Court
a
quo
concluded thus:
“
This
therefore brings me to the conclusion that to the extent that the
award relates to the infractions, to the misconduct, the Arbitrator
produces an award, which indeed is justifiable.”
[24]
With
regard to the sanction of dismissal, the court
a
quo
held that since the Director-General had made an offer of alternative
sanction, the only inference that can be drawn is that the
“[appellant]
decided that [respondents] be kept in its employ.”
The Labour Court then reasoned that had the respondents decided to
accept the alternative sanction “
they
would certainly have been kept in the
employ
”
and found the sanction to be that
“a
reasonable employer would not have in the circumstances have imposed
it”.
The
Labour Court, on this ground alone “
reviewed
and corrected
”
the award and made the order referred to in paragraph [2] above.
The Appeal
[25]
In
this Court, the appellant relied on the following grounds for the
appeal:
25.1
that
the Labour Court erred in setting aside and correcting the award made
by the commissioner and not by concluding that the decision
reached
by her was one that a reasonable decision-maker could have made;
25.2
the
finding that the dismissals were substantively unfair is a
misdirection in that no or proper consideration was given to the
seriousness
of the misconduct and its effect on the trust
relationship rendering reinstatement an inappropriate remedy;
25.3
that
the Labour Court erred by overlooking the fact that the appellant was
obliged to follow the procedure provided for in the Public
Service
Code and that the respondents made an election not to accept the
alternative sanction and that their election was binding
on them.
[26]
The
Disciplinary Code and Procedures for The Public Service (PSCBC
Resolution no:2 of 1999) in terms whereof the disciplinary process
pertaining to the misconduct was conducted provided as follows with
regard to sanction:
“
7.4
Sanctions
a. If
the chair finds an employee has committed misconduct, the chair must
pronounce a sanction, depending on the nature of the case
and the
seriousness of the misconduct, the employees’ previous record and
any mitigating or aggravating circumstances. Sanctions
consist of:
i. counseling;
ii. a written
warning;
iii. a final
written warning;
iv. suspension
without pay, for no longer than three months;
v. demotion;
vi. a combination of
the above; or
vii. dismissal
b. With the
agreement of the employee, the chair may only impose the sanction of
suspension without pay or demotion as an alternative
to dismissal. If
an employee is demoted, after a year she or he may apply for
promotion without prejudice.
c. The
employer shall not implement the sanction during an appeal by the
employee”.
[27]
Also
applicable in this matter is the appellant’s “
Sexual
Harassment
Policy
”.
The policy provides for
inter
alia
,
the forms of sexual harassment and the procedure to be followed in
sexual harassment cases. It makes provision for the informal
procedure to be used for “
subtle
”
forms of sexual harassment and specifically excludes cases that
involve sexual assault, rape, strip search by or in the presence
of
the opposite sex,
quid
pro quo
or
persistent forms of sexual harassment, unless the aggrieved party
chooses to follow an informal procedure. The formal procedure
is the
one referred to in the PSCBC Resolution NO: 2 of 1999. The formal
procedure is used to address sensitive and serious sexual
harassment
complaints. The policy provides further that the appellant should be
guided by the Code of Good Practice as contained
in Schedule 8 of the
Labour Relations Act.
[28
]
It
is perhaps apposite to state that there is no challenge against the
finding of the Court
a
quo
that
the conduct of the respondents constituted sexual harassment. The
formal procedure adopted, which relate to the sensitive and
serious
forms of sexual harassment is also not an issue in this appeal. Put
differently, it is not the respondent’s contention
that the
appellant should not have followed the formal procedure in dealing
with the complainant’s sexual harassment complaint.
Counsel for
the respondents also submitted in argument before us that the conduct
of the respondents was not acceptable and that
they have been
correctly found guilty of the misconduct.
[29]
It is
evident from the judgment of the Labour Court that the only
“
misdirection
”
found in the award of the commissioner is with regard to the sanction
of dismissal. The finding of misdirection itself is only
limited to
the narrow fact that if the appellant was prepared to consider
another sanction short of dismissal, then it cannot be
said that the
employment relationship had irretrievably broken down. It is for this
finding that the Labour Court reasoned that had
the respondents
decided to accept the alternative sanction they would still have been
in the employ of the appellant. The corollary
to the reasoning of the
Labour Court is that had the Director-General simply imposed the
recommended sanction of dismissal without
considering suspension
without pay, then the dismissal would have been fair. It therefore
means that the consideration by the Director-General
of a sanction
short of dismissal has rendered what would have been a fair sanction
an unfair sanction. I doubt the correctness of
this reasoning.
[
30
]
One
must be careful not to consider the conduct of the employer in this
matter in isolation without taking into account the prescribed
procedures in dealing with disciplinary matters of this nature. It is
evident from the judgment of the Labour Court that it did not
take
into account the prescribed procedures as well as the obligations
they imposed on the appellant as the employer.
[
31
]
The
respondents contended that the finding of the Labour Court that the
sanction of dismissal is harsh under the circumstances is
a correct
finding. It was submitted on their behalf that the appellant should
have adopted a progressive approach and applied corrective
discipline. This submission is premised on item 3(2) of the Code of
Good Practice as well as on clause 2.1 of the Disciplinary Code
and
Procedures which provides that discipline should be viewed as a
corrective measure and not as punitive.
[
32
]
It
is to be noted that the Director-General, when offering the
respondents to consider an alternative sanction short of dismissal,
was in effect complying with the provision relating to the purpose
and object of discipline. By giving the respondents an option
of
accepting a sanction other than dismissal, the Director-General was
offering them an opportunity to correct their behaviour and
to
rehabilitate themselves. The Director-General could not impose a
sanction of suspension without pay, demotion or both without
the
consent of the respondents. This process was prescribed by the
collective agreement which was binding on the appellant as well
as
the respondents and their union. The Director-General went further to
advise the respondents to consult with their union in making
a
decision whether to accept or reject the offer made to them. The
respondent failed to take advantage of the offer and instead adopted
an obstructive approach to the implementation of a process that they
are now complaining that it was not followed. The respondents
can
therefore not claim to have been unaware of the consequences of their
decision because they were expressly informed that should
they not
agree with the said alternative sanction the Director- General would
have no option but to proceed with the sanction as
recommended by the
chairperson of the disciplinary enquiry. The appellant also told the
Director-General not to forget the repercussions
of the sanction left
to him to impose on themselves. Their dismissal could not have come
as a surprise to them under the circumstances.
[33
]
In my
view, the respondents only have themselves to blame for frustrating
attempts made by the appellant to implement corrective discipline.
The submission by their counsel that on hind sight the respondents
should have taken the advantage of the opportunity offered is
in my
view well founded. Considering the letters of response to the offer,
it makes it clear that their rejection or failure to accept
the offer
was based on their insistence that they were not guilty of
misconduct. It would have therefore served no purpose for the
appellant to insist on imposing other forms of sanction aimed at
correction and rehabilitation when the respondents themselves
believed
that they did nothing wrong. For rehabilitation to be
effective the incumbent must acknowledge the wrongfulness of his or
her conduct
and be prepared and willing to rehabilitate. Forced
rehabilitation would not achieve its desired result unlike what
forced physical
exercise would do to the body.
[
34]
The
argument that because the appellant considered an alternative
sanction in compliance with the Disciplinary Code, it meant that
the
employment relationship itself was not intolerable and that the
appellant showed some trust on the respondents is in my view,
illogical. One of the answers to this argument is that the
alternative sanction itself was a form of punishment which had its
own
conditions which would, if successful, repair the respondents’
relationship with the appellant. The respondents were required to
subject themselves to suspension from duty for a period of three
months without pay. It is perhaps for this reason why the collective
agreement provided that the employee who is to be suspended for a
period without remuneration has to consent to such an alternative
sanction as a measure of cooperation. It is clear from the judgment
of the Labour Court that these factors were not considered when
it
made an order to review and correct the award rendered by the
commissioner.
[35]
When
the respondents rejected the offer of a sanction short of dismissal,
they were quite aware that they were facing dismissal as
they were
warned already by the employer. They made an election not to accept
an alternative dismissal. It is only fair that they
be bound by their
election and the consequences flowing there from. Their decision
left the appellant with no option but to impose
the sanction
recommended by the chairperson of the disciplinary enquiries. Their
rejection of the offer was unreasonable when regard
is had to the
circumstances of this matter. An offer of alternative sanction could
not have meant that the dismissal of the respondents
could never have
been fair because of the seriousness of the appellant’s misconduct.
[36]
The
Labour Court in making an order of reinstatement without
retrospective effect but to a future date of 15 October 2007 when the
judgment itself was delivered on 28 September 2007 reasoned that
“[
t
]
hat
which
would have been initially seen by the employer to be an appropriate
sanction appears now to have been served
”
because four years had since elapsed from the date of dismissal. By
this reasoning as well as the decision not ot order retrospective
reinstatement, the Labour Court seems to have accepted that the
sanction of suspension without remuneration was fair and that the
appellant should have imposed such sanction. However, had the Labour
Court been alive to the fact that the appellant was prohibited
from
imposing the alternative sanction without the consent of the
respondent it would not, in my view, have held that the respondents
should not have been dismissed. This is because the conclusion by the
Labour Court that the dismissal was harsh was only based on
the fact
that the respondent had considered an alternative sanction which
would still have kept the respondent in employment and
not on the
fact that the misconduct itself did not warrant dismissal. The effect
of the order of the Labour Court is that the Labour
Court has imposed
a sanction of suspension without pay, in excess of three months,
without the consent of the appellants, in contravention
of
Disciplinary code.
[37]
The
commissioner when considering the sanction of dismissal remarked that
an employer is required to eliminate sexual harassment in
the
workplace and to create a working environment where employers and
their employees respect one another’s integrity, dignity,
privacy
and right to equity in the workplace. She mentioned that the employer
must take action against perpetrators of sexual harassment.
This
approach by the commissioner is a proper one in considering cases of
sexual harassment. The employer is obliged to keep a sexual
harassment free workplace.
[38]
Having
said what I have said above, the question that remains to be answered
is whether the decision made by the commissioner that
the dismissal
of the appellants was fair is a decision that a reasonable decision
maker could not reach. In my view, the answer to
this question is
that the decision by the commissioner is not a decision that a
reasonable decision maker could not reach. The appeal
should
therefore succeed.
[39]
What
remains is the issue of costs. In my view this is one of those cases
where it would be in accordance with the requirements of
the law and
fairness that costs should follow the result. Both counsel agreed
that a successful party should be awarded costs.
[40]
In
the result the following order is made:
The appeal succeeds.
The
order of the Labour Court is set aside and substituted with the
following:
“
The
application for review is dismissed”.
The
third and fourth respondents are to pay the costs of the appeal.
___________________
TLALETSI
AJA
I
AGREE
____________________________________
WAGLAY
ADJP
I
AGREE
____________________________________
KHAMPEPE JA
On
behalf of the Applicant:
Advocate
P.N. Kroon
Instructed
by:
State
Attorney
On
behalf of the Respondents:
Advocate
M. Grobler
Instructed
by:
Brown
Braude and Vlok Attorneys
Delivered:
29 January 2010