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[2006] ZALCJHB 8
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Mostamai v Everite Building Products (Pty) Ltd and Others (JR1250/05, JR3100/05) [2006] ZALCJHB 8 (14 December 2006)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO
: JR1250/05 & JR3100/05
In the matter between:
THEMBA
PRINCE
MOTSAMAI
Applicant
and
EVERITE
BUILDING PRODUCTS (PTY) LIMITED
1
st
Respondent
S
MTHETHWA
(Commissioner)
2nd
Respondent
THE COMMISSION FOR
CONCILIATION
MEDIATION
AND ARBITRATION
3
rd
Respondent
RECONSTRUCTED
ex tempore
JUDGMENT
NEL,
AJ
What
follows is an attempt by me to reconstruct the
ex
tempore
judgment I gave in these
matters on 14 December 2006. The reason why I have been
approached to reconstruct my
ex tempore
judgment is that on the day that the matter was argued before me an
electrical outage had occurred, causing the Court to adjourn.
On the Court reconvening, the hearing proceeded and I delivered my
reasons for my judgment and the order to the effect that the
relevant
award was set aside and substituted with an award to the effect that
the applicant’s dismissal was procedurally
and substantially
fair. I am advised that unfortunately the recording device used
on the day did not record the proceedings
after lunch. Leave to
appeal was unsuccessfully applied for and presently the applicant
wishes to petition the Judge President
for leave to appeal and for
that reason I have been asked to reconstruct my judgment. As I
did not keep any notes, the following
will not strictly speaking be a
reconstruction, but rather a restatement of what I, to the best of my
recollection believe were
the reasons for the order I granted at the
time.
[1]
The first respondent filed an application for review under case
number JR1250/05 in May 2005. In November 2005, the applicant
filed a counter application for review under case number 3111/05.
In April 2006, the two matters were consolidated.
[2]
During or about June 2004, the first respondent received complaints
from three of its female employees to the effect that the
applicant
had sexually harassed them. The applicant was suspended pending
the outcome of the first respondent’s investigations.
Following a disciplinary enquiry, the applicant was dismissed for
misconduct. This dismissal was upheld on appeal.
An
unfair dismissal dispute was referred to the third respondent by the
applicant and an arbitration hearing took place on 14 March
2005,
which was presided over by the second respondent. The second
respondent found that the dismissal had been procedurally
fair and
that the first respondent had proved the allegations against the
applicant. In his award the second respondent,
inter
alia
, stated that:
“
The
(first) respondent has in my view succeeded in showing that the
applicant probably did behave in an inappropriate way.
However,
I am of the opinion that the (first) respondent’s management
should at least have convened an informal meeting to
discuss the
applicant’s conduct. It may then have been more
appropriate to embark upon a formal approach (if the informal
did not
yield any results). I am however mindful of the fact that the
complainants chose to go the formal route.”
[3]
It would appear as if the second respondent did not find that the
dismissal was substantively unfair, but merely stated that:
“
I
have decided that dismissal was not an appropriate sanction in the
matter before me.”
The
Commissioner then proceeded to say that he aimed to send a message
that sexual harassment, “however minor”, would
be dealt
with harshly”. This, it would appear, the Commissioner
was of the view he would achieve by ordering that the
applicant be
re-employed on new terms and conditions of employment as opposed to
being reinstated. The Commissioner specifically
in his award
stated that the first respondent must not pay the applicant any
arrear wages which he might have been entitled to.
The
Commissioner further ordered that the applicant, in addition, be
given a final written warning valid for a period of 12 months.
He directed that should the applicant be involved in another act of
sexual harassment (one must assume during this period of 12
months)
the first respondent may dismiss him. The first respondent was
further directed to arrange a counselling session (again
one assumes
for the applicant) at least once a week and should the applicant fail
to attend these sessions, the first respondent
may dismiss him.
[4]
It is apparent that the Commissioner found that the first respondent
had proved that he applicant had committed sexual harassment.
The applicant’s conduct in this regard, as testified to by Ms
Msibi, was that the applicant had been her foreman. On
the day
of the first incident, the applicant had called her into his office
and had shown her pornographic material on his computer.
She
stated that she had laughed and left. The applicant, however,
followed her and mentioned that the size of the man’s
penis was
similar to that of a colleague of theirs. She further testified
that on a different occasion she had entered the
office to fetch a
key when the applicant had called her over to show her a female
condom and he had asked her to come and give
it to him. She
advised the applicant that she did not like what he was doing and
that she would tell the first respondent’s
plant manager, Mr
Tsokodibane, about it. She had asked the applicant what he was
doing and he had said that he had a lust
towards her. He
further stated that he could see by the look of her mouth and lips
that she would “be nice”.
[5]
On the occasion of a third incident, in June 2004, the applicant had
returned from study leave. Ms Msibi entered the office
and
greeted him. She extended her hand but he hugged her in
response. Whilst Msibi allowed him to hug her the applicant
then touched Msibi’s private parts. She testified that she was
very unhappy about the applicant’s conduct and the next
day she
reported the matter to one of her superiors. Msibi further
testified that she was very upset by the ordeal, and that
she had
considered resigning. She explained that she had always made it
clear to the applicant that she did not approve of
his behaviour and
had thought that the applicant would understand that.
[6]
The second person who testified that she was sexually harassed by the
applicant was a Ms Rammilla. She testified that
the applicant
was her superior and that on 10 June 2004 he had approached her and
asked her what the size of her underwear was.
Rammilla refused
to give the applicant the size of her underwear and she told one
Thoko about it. Thoko told her that when
she had asked the
applicant why he had asked Rammilla about the size of her underwear,
the applicant said that he was just kidding.
Rammilla reported
the matter to a superior of hers. She testified that she was
upset, not so much by the question
per
se
but rather the way in which it had
been asked by the applicant. She testified that the thermal clothing
the applicant purportedly
wanted to order were pants, not underpants.
She accordingly stated that the applicant could have asked her what
the size of her
pants was and that the size of her underpants was
irrelevant.
[7]
I turn to first consider the applicant’s grounds for review.
It was apparent, particularly during the argument of
Mr Gobile, who
appeared before me on behalf of the applicant, that the applicant
contended that the Commissioner erred in having
concluded that the
applicant was guilty of the misconduct of sexual harassment with
which he was charged. It is trite that
this being a review and
not an appeal, what the applicant needed to satisfy me on was to show
that the Commissioner had misconducted
himself or had perpetrated a
reviewable irregularity or had exceeded his powers in the conduct of
the arbitration. It is
not good enough for the applicant to
simply contend that the Commissioner was wrong in his conclusion.
[8]
It is apparent from a perusal of the Commissioner’s award that
the Commissioner analysed the evidence adduced on behalf
of the first
respondent and by the applicant himself. A perusal of the
record in effect discloses that the applicant in effect
denied most,
if not all, of the allegations made by the first respondent’s
witnesses during the arbitration.
[9]
Although the Commissioner did not in clear terms reason himself
through to a conclusion why he preferred the evidence adduced
on
behalf of the first respondent to that of the applicant, it is quite
apparent that the Commissioner applied the correct standard
of proof
required in civil cases as being that he had to determine with a
reasonable degree of probability, but not as high as
was required in
a criminal case, whether the applicant had perpetrated the misconduct
with which he was charged. It is further
apparent that on the
probabilities, the Commissioner had concluded that the first
respondent had succeeded, as the Commissioner
put it, in showing that
the applicant probably did behave in an inappropriate way. I do
not believe that the Commissioner
can be faulted in this conclusion
of his as it is one which is supported, in my view, by the evidence
adduced before the Commissioner.
Without intending to traverse
the whole of the evidence adduced at the arbitration, a few aspects
in support of the probabilities
being against the applicant, are that
the applicant conceded that pornographic material was available on
his computer, however
he denied that he had showed same to Msibi.
Likewise, the applicant confirmed that female condoms were available
to him,
yet again denying that he had showed it to Msibi. He
also confirmed that it was not unusual for him to hug Msibi.
Yet
again he only denied the part of her evidence that he had, in the
process of hugging her, also touched her private parts.
[10]
It is further material to the consideration of this part of the
Commissioner’s finding that it is apparent from the record
of
the arbitration proceedings that in a number of material respects the
applicant’s legal representative did not put in
issue parts of
the evidence of the witnesses which he ought to have done in light of
the applicant’s later denial thereof.
It is particularly
relevant to note that when the applicant was asked why witnesses
would give false evidence against him he responded
by stating that
they had been coerced by the employer to do so. This allegation
was never put to any of the first respondent’s
witnesses.
[11]
I was accordingly unpersuaded at the time of hearing this matter that
the applicant had succeeded in satisfying me that the
Commissioner
had perpetrated any reviewable irregularity in respect of his
conclusion that the applicant was guilty of the sexual
harassment
charges. In this regard it is relevant to recall that it would
appear as if the Commissioner only found the applicant
guilty of the
misconduct in respect of the witness Msibi. As far as the other
witness, Rammilla, was concerned, namely that
she felt aggrieved by
the applicant having wanted her to give him the size of her panties,
the Commissioner regarded this conduct
on the part of the applicant
as reasonable.
[12]
I am accordingly satisfied that the Commissioner’s conclusion
that the applicant made himself guilty of sexual harassment
only in
respect of the incidents to which Msidi had testified is not
reviewable and accordingly should stand.
[13]
I turn to consider the applicant’s attack on the Commissioner’s
conclusion, that the applicant’s dismissal
was effected in a
procedurally fair manner. During his argument before me I asked
Mr Gobile to refer me to specific instances
in the arbitration record
where it was alleged by or on behalf of the applicant that the first
respondent had conducted itself
procedurally unfairly. From Mr
Gobile’s argument as well as the record of the arbitration
proceedings it would appear
that what the applicant did raise before
the Commissioner in respect of the procedural fairness of his
dismissal related more to
the employer’s conduct prior to the
disciplinary enquiry. In this regard it would appear that the
applicant relied
on the fact that after he had received his
suspension letter the employer at no stage interviewed him. He
further felt aggrieved
by the fact that the employer at no stage
convened a meeting between the applicant and the complainants where
the employer tested
the allegations of the complainants in question.
The applicant also clearly complained before the Commissioner about
the
fact that he was never handed any statements of the witnesses in
order for the applicant to prepare himself for his disciplinary
hearing, notwithstanding the fact that the applicant appears to have
asked his employer for such statements. It is apparent
to me
that the applicant did not attack the procedural fairness of the
disciplinary enquiry itself.
[14]
Turning to the Commissioner’s award, it is apparent that the
Commissioner did consider the applicant’s complaints
relating
to the process followed by the employer prior to the applicant’s
dismissal. In this regard it is clear that
the Commissioner
concluded that the first respondent’s management should at
least have convened an informal meeting with
the applicant to discuss
his alleged misconduct. After such a meeting it may then have
been more appropriate to embark on
a formal approach, if the informal
one did not yield any results. The Commissioner’s
reasoning appears to be that he
was, however, mindful of the fact
that it was the complainant who had chosen to go the formal route.
It is accordingly apparent
that the Commissioner considered the
conduct of the employer prior to the actual disciplinary enquiry
itself and, for the stated
reasons, the Commissioner had concluded
that he had no problem with the process followed by the employer
prior to the dismissal
of the applicant. What the Commissioner
expressly stated was important to him was that the applicant had been
afforded an
opportunity to state his case during the disciplinary
hearing.
[15]
I am of the view that the Commissioner had reasoned himself through
to a conclusion. Whilst the conclusion is possibly open
to some
criticism in light of the evidence adduced, the Commissioners conduct
in arriving at his conclusion cannot in my view be
said to constitute
a reviewable irregularity. The Commissioner was clearly mindful
of the fact that the employer may have
first followed an informal
procedure. On the other hand, it is apparent that the
Commissioner was equally alert to the fact
that the complainants had
elected, as the Commissioner stated, to go the more formal route.
Under these circumstances, I
was unpersuaded that, as far as the
Commissioner’s conclusion that the employer had acted
procedurally fairly herein is concerned,
that I am at liberty to
interfere with this conclusion. It is a rational one having regarding
to the evidence adduced and the reasons
given by the Commissioner for
his conclusion.
[16]
The applicant also attacked the Commissioner’s award on the
basis that it was ambiguous and could be understood in two
different
ways. On behalf of the applicant the complaint was further, so
I understood it, that the Commissioner had exceeded
his powers as the
Act did not empower the Commissioner to order the employer to
re-employ an employee on new terms and conditions
of employment.
[17]
Mr Gobile, in argument before me, referred me to Section 193(b) of
the LRA. This section reads as follows:
“
(1)
If the Labour Court or an Arbitrator appointed in terms of this Act
finds that a dismissal is unfair, the Court
or the Arbitrator may –
(a)
…
..;
(b)
order the employer to re-employ the
employee either in the work in which the employee was employed before
the dismissal or in other
reasonably suitable work on any terms and
from any date not earlier than the date of dismissal; or …..”
[18]
The Commissioner herein in my view ordered exactly that which he was
entitled to do in terms of the LRA, namely re-employment
of the
employee on new terms and conditions of employment. For this
reason this ground of review on which the applicant relied
failed.
[19]
For these reasons I accordingly arrived at the decision in respect of
the applicant’s review application under case number
JR3100/05
that;
1)
The application in JR3100/05 is dismissed.
The applicant and the Union who assisted him are ordered to pay the
first respondent’s
cost of suit, the one paying, the other to
be absolved.
[20]
This left me to consider the first respondent’s review
application brought under case number JR1250/05 seeking to have
the
award reviewed and set aside, particularly with reference to the fact
that the Commissioner had concluded that the applicant
was guilty of
some of the misconduct of sexual harassment with which he was charged
but that the sanction of dismissal was too
harsh and that he
substituted it with the sanction which I have referred to earlier
herein.
[21]
Miss Tolmay, who appeared before me on behalf of the first
respondent, in this regard drew my attention particularly to the
fact
that the Commissioner, having found that the first respondent had
succeeded in showing that the applicant did behave in an
inappropriate manner, continued to state that “sexual
harassment, however minor, will be dealt with harshly.”
She argued that it was a misdirection of the Commissioner,
particularly against the background of his statement that sexual
harassment,
however minor, would be dealt with harshly, to then
proceed to order the applicant to be re-employed and be given a final
written
warning.
[22]
Very extensive heads of argument had been presented to the Court on
behalf of the first respondent. In Court the essence
of the
first respondent’s argument was that in terms of the Supreme
Court of Appeal judgment in
Rustenburg
Platinum Mines Limited (Rustenburg Section) v Commission for
Conciliation, Mediation and Arbitration
2007(1) SA 576 (SCA) a Commissioner who found that the employer had
established that the employee had indeed committed the conduct
for
which he had been dismissed could not interfere with the sanction
imposed by the employer as long as the discretion to dismiss
had been
fairly exercised by the employer.
[23]
The argument before me was to the effect that the Commissioner
arrived at an irrational conclusion (that the sanction of dismissal
should be substituted with one of re-employment) against the
background of him having stated how serious sexual harassment was.
[24]
It was argued on behalf of the first respondent that with the
Commissioner having found that the applicant had been guilty
of
sexual harassment, and that it was a serious offence which needed to
be dealt harshly, that it was irrational to then proceed
to order
that the applicant be re-employed. In this regard it was
further submitted on behalf of the first respondent that
it was also
irrational for the Commissioner, against the background of his
findings, to have expressed the view that the first
respondent ought
to have convened an informal meeting with the applicant to discuss
the matter.
[25]
During oral argument, Mr Gobile was invited by me to persuade me why
the Commissioner was justified to interfere with the exercise
of the
discretion of the employer in having imposed the sanction of
dismissal on the applicant. Mr Gobeli was invited to
show me
what it is that the employer had done in imposing the sanction of
dismissal which could be regarded as the employer having
acted
irregularly, or that the employer had considered material which was
improper to consider or that the employer, in the exercise
of its
discretion in imposing the sanction, had acted improperly.
[26]
Having considered the arguments adduced as well as the record of the
arbitration proceedings and the Commissioner’s reasoning,
I
arrived at the conclusion that the Commissioner did not provide any
reasons for his conclusion that the sanction imposed by the
employer
was too harsh. It accordingly drove me to the conclusion that
the Commissioner had merely disagreed with the employer
as the
Commissioner felt the sanction was too harsh. This conclusion
of the Commissioner was irrational and not justifiable
having regard
to the fact that he did not provide any reasons for this conclusion.
I also arrived at this conclusion having
had regard to the evidence
which was adduced before the Commissioner. I accordingly was
driven to the conclusion that the
Commissioner had perpetrated a
reviewable irregularity, having found the applicant guilty of what
the Commissioner had correctly
described as a serious form of
misconduct, namely sexual harassment, but to have nevertheless
decided to substitute the employer’s
sanction with that of the
Commissioner’s. For those reasons I accordingly concluded
that in respect of matter JR1250/05,
the following order should be
issued:
1)
The arbitration award made by the second
respondent under case number GA25798-04 on 16 February 2005 is
reviewed and set aside.
2)
The said arbitration award is substituted
by the following award:
“
The
dismissal of the applicant is found to have been procedurally and
substantively fair. No order as to costs.”
3)
The first respondent and the Union who
assisted him are jointly and severally ordered to pay the applicant’s
costs, the one
paying the other to be absolved.
[24]
I wish to reiterate that the aforegoing is not so much a
reconstruction of my judgment. It is more a matter of me having
again reviewed the written heads of argument together with the parts
of the oral argument, which were transcribed. I as well again
traversed the record of the arbitration proceedings as well as the
arbitration award herein. I then, to the best of my recollection,
reconstructed my reasoning which formed part of my original
ex
tempore
judgment and which led to the orders which I recorded
above.
__________________
DEON NEL
ACTING
JUDGE OF THE LABOUR COURT
Date
of hearing and Judgment: 14 December 2006
Appearances:
For the applicant: Mr D
Gobile, Union Official.
For the first respondent:
Advocate E Tolmay instructed by E A Potgieter Attorneys.