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[2008] ZALCD 13
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South African Post Office Ltd v Commission for Conciliation Mediation And Arbitration and Others (D257/06) [2008] ZALCD 13 (19 November 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE
NO
: D257/06
DATE:
19 NOVEMBER 2008
Reportable
In
the matter between:
THE
SOUTH AFRICAN POST OFFICE
LIMITED
APPLICANT
And
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
FIRST RESPONDENT
COMMISSIONER
P GOVINDSAMY
SECOND RESPONDENT
M
I
SHAIKH
THIRD RESPONDENT
JUDGMENT
PILLAY
D, J
1.
Since the decision of the Constitutional Court in Sidumo and Another
v Rustenburg Platinum Mines Limited and Others 2007 [28]
ILJ 2405 CC,
the Labour Court is slow to interfere in decisions of commissioners,
especially when credibility of witnesses at arbitration
is in issue.
2. In
Fidelity Cash Management Service v Commission for Conciliation,
Mediation and Arbitration and Others 2008 [29] ILJ 964 LAC
at 977A –
E, the Labour Appeal Court expatiated as follows:
“
In
many cases the reasons which the commissioner gives for his decision,
finding or award will play a role in the subsequent assessment
of
whether or not such a decision or finding is one that a reasonable
commissioner could or could not reach. However, other
reasons
upon which a commissioner did not rely to support his or her decision
or finding but which can render the decision reasonable
or
unreasonable can be taken into account. This would clearly be
the case where the commissioner gives reasons A, B and C
in his or
her award but, when one looks at the evidence and other material that
was legitimately before him or her, one finds that
there were reasons
D, E and F, upon which he did not rely but could have relied which
are enough to sustain the decision.”
3. The
third respondent employee in this review was the postmaster for
Pietermaritzburg district. Following a disciplinary
inquiry on
8th and 9 September 2004, the applicant employer dismissed him
for sexually harassing two employees, Cynthia Xoliswa
Makathini and
Tiny Precious Zondi. The employee had engaged these
complainants via a labour broker, Midway Two [Pty] Ltd.
Zondi
worked in the back office of the post office in Pietermaritzburg and
Makathini worked as a teller in Willowton.
4.
Both complainants alleged that the employee engaged them for three
months. According to the employees, their services terminated
on expiry of their fixed term contracts. In the case of
Makathini, the fixed term contract was from 6 October 2003
to 24 October 2003. In the case of Zondi, her contract was from
9 June to 2 August 2003. Their services were terminated
prematurely a few weeks after their employment. The duration of
their contracts and the reasons for its termination were
in dispute.
5. The
employee’s defence was that Anita Swanepoel, who acted as
postmaster when the employee was on leave, conspired to have
him
dismissed. The commissioner preferred the conspiracy defence of
the employee over the evidence of the employer’s
witnesses in
the following circumstances. The employee did not raise the
conspiracy defence at his disciplinary inquiry.
He raised it
for the first time at arbitration.
6. The
employee insisted that the complainants were engaged on fixed term
contracts, the duration of which would, he said, be manifest
from the
contracts. When the employer produced the contracts they
reflected the dates on which the employment began.
Termination
dates were not filled in.
7.
Realising that the written contracts did not bear out his version,
the employee claimed that the contracts produced were forged.
He did not make this claim when the documents were first produced or
at the pre-trial conference when they were discussed. He raised
this
objection for the first time at the arbitration when he testified in
chief. The employer was therefore taken by surprise.
8. The
second respondent commissioner was aware that the employee could not
explain why his counsel did not put it to Zondi that
her documents
were forged. The commissioner called for the original contracts of
employment but the employer could not produce
them as it did not have
them. The employer alleged that they were last given to the
employee. They might have been
sent to the labour brokers but
as the employer had been taken by surprise, it had not checked with
the labour brokers. The
employee put the authenticity of the
contract in dispute at the arbitration.
9. The
employee’s version was that the contracts he received when the
complainants were engaged were not the same as the ones
produced to
the arbitrator. On that version, the inference he wanted the Court to
make was that the documents were forged. The
employee could not
explain why he forwarded them and the identity document of the
complainants to the labour brokers if the contracts
of employment
were forged. However, as the documents produced to
Court were the very documents that the employer
obtained from the
labour broker, the employee must have sent them. As the employee sent
them, they could not have been forged.
10.
The documentary evidence before the arbitrator showed that in the
case of Makathini, the space provided in the contract of employment
for a termination date was left blank. Although Zondi’s
contract did not provide a space for a termination date, it
did not
stipulate the period of her contract. Both contracts provided
for termination on two weeks’ notice.
11. It
was common cause that the employee did not give two weeks’
notice of termination either in writing, as he should have,
or orally
to the complainants. He therefore terminated the complainants’
contracts unlawfully.
12. It
was common cause that he had engaged the complainants as substitutes
for full-time employees who went on leave. The
documents showed
that the employee requisitioned additional staff on 19 May 2003 to
replace permanent employees who went on leave
from 2 June to 13
September 2003. Malcolm Wright, the administrative control
officer, approved this requisition which resulted
in the applicant
employing Zondi. Wright approved a similar requisition dated 19
May 2003 on 25 August 2003 for employees
going on leave between 9
September and 24 October 2003, which resulted in the applicant
employing Makathini.
13.
The documentary evidence proves that the employee sought and obtained
approval for employing Zondi and Makathini timeously.
The
employee’s evidence that Makathini’s employment was
delayed until 6 October 2003 because he did not get approval
on
time conflicts with the documentary evidence.
14.
Two further irregularities with the employees’ requisition for
staff emerged from the documentary evidence. The
employee
requested an extension of the contract of two service providers for 8
September to 24 October 2003. The applicant
had not
employed Makathini yet, so her contract could not have been an
extension but a new contract. Furthermore, although the
requisitions
were for staff at Pietermaritzburg, the employer instructed Zondi to
work at Pietermaritzburg and Makathini to work
at Willowton.
15. In
Zondi’s case, her version that the employee told her that she
was employed for three months corresponds with the requisition
for
temporary staff for three and a half months. He employed Zondi
from 9 June and terminated her services on 2 August 2003.
He
employed Makathini on 6 October and terminated her services on
24 October. He terminated their services well before
the dates
approved in response to his requisition. The employee needed to
continue filling the position left vacant by Makathini;
to that end
Thandi Myeza took over Makathini’s post when the employee
terminated Makathini’s services. It was therefore
not a
situation where Makathini’s employment terminated because there
was no work for her.
16.
Despite acknowledging the employee’s inability to explain these
contradictions adequately, the commissioner preferred
the employee’s
version.
17. In
addition to the documentary evidence corroborating the complainants’
testimony, other witnesses of the applicant also
corroborated the
complainants. Stanley Michael confirmed Makathini’s
evidence that on the employee’s instructions,
he telephoned
Makathini to inform her that her contract was terminated for reasons
he was unaware of. When Mr Blomkamp, who
appeared for the
employee, put to Michael that the employee would deny that he
telephoned to instruct Michael to contact Makathini,
Michael declined
to comment because as far as he knew, he did what he was instructed
to do. Either Michael or the employee was
lying on this issue.
18.
Purity Zuma testified that the employee also instructed her to
inform Makathini that her contract was terminated.
She
confirmed that she understood the difference between “terminate”
and “expire”. She understood
that that the employee
was terminating Makathini’s services illegally. She also
confirmed that after she informed Makathini
that the employee
terminated her services, Makathini reported to her that the employee
had told her that he wanted to spend the
evening with her. Zuma
recalled an occasion when she called Makathini to the telephone when
the employee wanted to speak to her.
Makathini told her that
the employee telephoned her to call her to the area office. Makathini
informed her that when she went to
the area office the employee
propositioned her.
19.
Emmanuel Gumbi, the acting area manager, confirmed receiving a report
from Makathini that the employee wanted to see her after
hours.
Gumbi approached her complaint with caution because she raised it
only after Gumbi reported to her that the employee
had informed him
that her contract had expired. Makathini had said that he had
laughed when she related her complaint to
him. Gumbi testified
that he smiled. Irrespective of whether he laughed or smiled, he was
manifestly sceptical of her complaint.
His reaction is hardly that of
a co-conspirator.
20.
Vuyo Kazi Ndima confirmed that Makathini cried when she reported to
her that the employee wanted to take her to lunch.
21. In
rejecting the complainants’ evidence, the commissioner reasoned
as follows:
“
On
the issue of credibility the Makathini’s and Zondi’s
evidence are unsatisfactory in a number of respects. In
each
case there are discrepancies between what they said in evidence in
these proceedings and what they said in evidence at the
disciplinary
inquiry. To a certain extent the account given at these
proceedings echoes very closely the account given at
the disciplinary
inquiry but there are also differences between the two accounts.
Makathini is obviously biased in the sense
that she has an interest
in her evidence being believed. Why she did not report her
encounter with Shaik to anyone soon after
the alleged sexual
harassment is open to question. Why she accompanied Shaik up
the stairs to a room after the first incident
is also questionable.
Her response “On Saturday” to Shaik in regard to his
overture ‘when are we going
to do the thing properly is an
indication that she encouraged and led Shaik on.” (sic)
And
“
Zondi’s
demeanour is not such that it could be said to be free from
criticism. She was not candid and was obviously
biased in that
she had an interest in wanting her evidence to be believed. The
inspection in loco showed that it was entirely
impractical for any
person wishing to touch another person intimately while both of them
are positioned at opposite sides of the
table. She complained
to Gumbi about the termination of her contract yet it should have
been a complaint about sexual harassment.
When she was
requested to offer an explanation as to why her contract was
terminated, only then did she come up with this story
of sexual
harassment. What is equally strange is why, in a busy place
such as the back room in the parcel counter Shaik would
sexually
harass her. The calibre and cogency of the performances of
Makathini and Zondi compared to Shaik is unsatisfactory
and
unreliable. Shaik’s bare denial is manifestly better than
Makathini’s and Zondi’s version.”
22.
The commissioner’s reasoning demonstrates that he could not
make up his mind whether Makathini’s evidence at the
arbitration was substantially consistent with her evidence at the
disciplinary. He could not make up his mind probably because
he
did not undertake any analysis to determine the inconsistencies and
whether they were material. To the extent that there
were
inconsistencies, they were not material, especially given the lapse
of almost two years since the termination of her employment.
23.
The commissioner misconstrued the notion of bias. Every witness
tries to convince an adjudicator of his or her version.
The
complainants were testifying about their subjective experiences.
They were not impartial experts testifying about objective
facts.
24. In
evaluating the conduct of the complainants after the alleged
encounters with the employee, the commissioner failed to take
into
account the special circumstances of victims of sexual harassment.
The Supreme Court of Appeal in S v J 1998 [2] SA
984 summarises the
position of a rape victim thus at 1008E - F:
“
Few
things may be more difficult and humiliating for a woman than to cry
rape: she is often, within certain communities, considered
to have
lost her credibility; she may be seen as unchaste and unworthy of
respect; her community may turn its back on her; she
has to undergo
the most harrowing cross-examination in court, where the intimate
details of the crime are traversed ad nauseam;
she (but not the
accused) may be required to reveal her previous sexual history; she
may disqualify herself in the marriage market
and many husbands may
turn their backs on a ‘soiled’ wife.”
25.
The reaction of the complainants in this case is typical of victims
of sexual harassment. They felt afraid, anxious and
scared.
They were hurt and embarrassed. They were desperate for a job.
They respected their boss. They
were obedient employees.
The complainants’ conduct must be assessed against such a
cocktail of conflicting emotions.
A decision to report sexual
harassment, like a decision to report rape, is not easy for a victim
who has to relive the experience
every time she narrates it.
She must reveal the indignity she endured when the perpetrator
violated her person. She
must be prepared to have her
credibility and morality challenged. She runs the risk of being
disbelieved because society
in general and adjudicators in particular
are not rid of the prejudices against women witnesses.
26.
The arbitrator in this case made unjustifiable inferences. He
inferred that Makathini encouraged the employee without taking
into
account the context in which she replied, “On Saturday.”
Significantly, he ignored her consistent resistance
to the employee’s
overtures and that on that Saturday she had put the telephone down on
him. By drawing inferences
unfavourable to the complainants the
commissioner failed to adopt a context-sensitive approach to
evaluating their evidence taking
account of the trauma they
experienced.
27.
The Supreme Court of Appeal in S v J overruled the automatic
application of the cautionary rule in sexual assault cases.
As
the cautionary rule was based on outdated perceptions of
complainants, “it was particularly unreliable”. In
coming to this conclusion, Olivier JA relied on research that
revealed the following: 1. There is no evidence to substantiate the
cliché that the danger of false accusations is likely to exist
merely because of the sexual character of the charge; 2.
There is no
evidence that complainants in sexual cases are more untruthful than
complainants in other cases.
28.
Taking together the evidence of the complainants, the corroboration
in the documents and the evidence of all the other witnesses
of the
employer, the only finding that a reasonable commissioner could come
to was that the complainants were honest and the employee
was
dishonest. He began his web of deceit by insisting that the
written contracts of employment would bear out his version.
When this did not happen, he entrapped himself deeper and deeper as
he tried to cover up lie upon lie.
29.
The net result was his resort to a plea of conspiracy. That
plea, conjured at the arbitration, was never tested by
cross-examination
of the employer’s witnesses, despite the
employee having the benefit of counsel at the arbitration. The
employer’s
witnesses were not told who the members of the
conspiracy were, what the role of each conspirator was, whether every
witness who
testified for the employer was a conspirator, when the
conspiracy was formed and why the complainants would involve
themselves
in such an elaborate plot when there stood good prospects
of succeeding in claims for unfair dismissal.
30.
Even if the evidence of the employee’s witnesses, Bongiwe Zondi
and Njabulo Khumalo were true, their evidence firstly,
does not give
rise to conspiracy as being the only reasonable inference. The
employee alleged that Anita Swanepoel, who was the
central figure in
the conspiracy, disliked him. Bongiwe Zondi and Khumalo alleged that
Swanepoel questioned them about the employee.
Swanepoel might have
questioned them about the employee for any number of reasons.
Even if she did conspire to get the employee
dismissed, nothing in
the evidence of Bongiwe Zondi and Khumalo suggests that the
complainants were party to the conspiracy.
If the employee
genuinely believed in his conspiracy defence, he would have raised it
at the first opportunity; that was at the
disciplinary inquiry, if
not before.
31.
Two applications for condonation prefaced this review. The
overwhelming prospects of success on the merits, the period
and
partly weak explanation for the delays are sufficient to warrant the
Court granting condonation.
32.
The applications for condonation are granted with no order as to
costs.
33.
The application for review is granted with costs.
_____________
Pillay
D, J
Date
of Judgment: 17 November 2008
Date
of Editing: 5 January 2009
APPEARANCES:
For
the Applicant: Adv Dirk Vetten instructed by Mohsina Chenia (Nkaisang
Chenia Baba Pienaar & Swart Inc)
For
the Respondent: Adv P J Blomkamp instructed by Cajee, Setsubi and
Chetty Inc
TRANSCRIBER’S
CERTIFICATE
This
is, to the best abilities of the transcriber and proofreader, a true
and correct transcript of the proceedings,
where audible
,
recorded by means of a mechanical recorder in the matter:
SA
POST OFFICE
v
M
I SHAIK
CASE
NO
:
D257/06
COURT
OF ORIGIN
:
DURBAN
TRANSCRIBER
:
MRS M D MOODLEY
DATE
COMPLETED
:
3 DECEMBER 2008
PROOFREADER
:
MRS M D MOODLEY
DATE
COMPLETED
:
3 DECEMBER 2008
NO
OF CDs
:
1
NO
OF PAGES
:
13
CONTRACTOR
Sneller
Recordings
(Pty) Ltd. Durban
–
103 Jan Hofmeyr Road
–
Westville 3630
Tel
031 2665452
–
Fax
031 2665459
IN
THE LABOUR COURT FOR
THE
DISTRICT OF DURBAN
HELD
AT DURBAN
CASE
NO
:
D257/06
DATE
:
19 NOVEMBER 2008
BEFORE
:
PILLAY J
APPLICANT
:
SA POST OFFICE
RESPONDENT
M I SHAIK
ON
BEHALF OF APPLICANT
:
?
ON
BEHALF OF RESPONDENT
:
?
INTERPRETER
:
NOT REQUIRED
REPORT ON
RECORDING
Clear Recording.
CONTRACTOR
Sneller
Recordings
(Pty) Ltd. Durban
–
103 Jan Hofmeyr Road
–
Westville 3630
Tel
031 2665452 –
Fax 031 2665459