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[2011] ZALCJHB 122
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Makoti v Jesuit Refugee Service South Africa (JS 323B/09) [2011] ZALCJHB 122; (2012) 33 ILJ 1706 (LC) (13 January 2011)
Reportable
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT
OF SOUTH AFRICA
(HELD AT
JOHANNESBURG)
Case number: JS
323B/09
In
the matter between:
MAKOTI,
MMATSHWANA EMMA
….................................................
Applicant
and
JESUIT
REFUGEE SERVICE SOUTH AFRICA
…............................
Respondent
JUDGMENT
HEAD NOTES
:(trial-sexual harassment-automatically unfair dismissal-damages
under EEA - delay in reporting harassmENT)
Lagrange J
Introduction
The
applicant has referred a claim that she was dismissed by the
respondent in December 2008 on account of not acceding to the
alleged sexual advances of the respondent's national director at the
time, a Mr G Shivatu. She claims that her dismissal was
automatically unfair, or alternatively simply procedurally and
substantively unfair. She further claims to have suffered unfair
discrimination in terms of section 50 (1)(d) and (e) of the
Employment Equity Act as a result of being subjected to those sexual
advances.
In
respect of her alternative claims of unfair dismissal she seeks
compensation, and in respect of the unfair discrimination claim
seeks damages in the amount of R 150,000-00. At the time of her
dismissal it is common cause that her gross monthly remuneration
was
R 10,051-40.
The
applicant herself gave evidence and also called a former colleague,
Ms F Modise, another social worker who worked with the
applicant in
the respondent's Pretoria office between July 2007 and November
2008. The respondent called Mr T Maphosa, who had
been a project
director based in its Johannesburg office. It also called Ms J M
Lesisa who had been appointed as a project director
in the
respondent’s Pretoria office in September 2008. The alleged
perpetrator of the initial acts of sexual harassment
was the former
national director of the respondent who was appointed to the
position in August 2007, Mr G Shivatu. By the time
this matter was
heard he had resigned under a cloud for issues unrelated to this
matter and Lesisa said it had been unable to
trace him for the
purposes of obtaining his testimony.
The
applicant accepted the onus of commencing to lead evidence, which
was necessary because the respondent denied that the applicant's
termination of services in December 2008 amounted to a dismissal,
but merely the non-renewal of her contract. The onus of proving
her
dismissal lay with the applicant in terms of section 192(1) of the
LRA. Secondly, the applicant bore the evidentiary burden
of
establishing a
prima facie
case of automatically unfair
dismissal relating to sexual harassment under the LRA, and for her
claim of unfair discrimination
under the EEA concerning the direct
acts of sexual harassment in the form of Shivatu’s alleged
unwanted sexual advances.
Synopsis
of Evidence
Like
other employees, the applicant had always been employed on an annual
fixed term contract ending in December each year, since
she started
working for the respondent as a social worker in April 2004. The
parties agree that because the respondent is a non-profit
organisation dependent on donor funding, which is provided annually,
this is a factor which impacted on the decision by the respondent
to
renew employees’ fixed term contracts. The respondent's major
funder is the United Nations High Commissioner for Refugees
(the
‘UNHCR’), and it met with representatives of the
respondent during the second half of each year to discuss budgets
for approval for the following year.
The
applicant's work as a social worker involved her having to assess
cases of unaccompanied minors who came across the border,
placing
them with families or in a shelter and assessing and distributing
grants for adults. She also attended to the needs of
other refugees
under the auspices of the UNHCR.
The
allegations of unwanted sexual advances
The
applicant testified to acts of sexual harassment which she claimed
to have suffered at the hands of the former director, Shivatu,
in
2007 and 2008. In particular, she related four specific episodes. At
the time, the applicant was still working as a social
worker but
since August 2007, had also been performing the duties of a project
director in the respondent’s Pretoria office,
in an acting
capacity. The applicant said that Shivatu’s approaches started
in October 2007.
The
first occurrence took place when she had gone to discuss something
with Shivatu after a finance meeting. He asked her out
for dinner,
but she said she had to go out and asked him what her husband would
think if she went out for dinner with him. She
went to fetch her bag
which was lying on a table in his office and it was then that he
first tried to kiss her. She pushed him
away, grabbed her bag and
left the office. She described the experience as ‘very
horrible’ and it made her very uncomfortable.
The
next day, she had to take cheque authorisation documents to him and
he addressed her by her nickname, saying, “You know
Nonke what
I want”. She took this as a clear reference to his attempt at
intimacy on the previous evening. He also made
another remark
alluding to his supposed attractiveness to women. She told him that
she had been married for 10 years and had
a daughter. She thought
she could stand up for herself and whenever he made similar remarks
she would answer back directly. She
felt that she made it clear she
was not interested in him and that she had the situation under
control.
The
next distinct recollection the applicant related concerned events at
the staff Christmas party at the end of 2007, which took
place at
Hartebeespoort. When they were leaving the venue Shivatu said he was
drunk and therefore could not drive the respondent’s
vehicle.
She replied that as long as he could walk he could drive. She then
told him she was going home and went to her car.
He left in his car
but when she exited the venue he tried to stop her. He approached
her and asked her to give him a hug. She
wanted to escape the
situation and drove off going through a red traffic light in the
course of her flight from her harasser.
The
third instance of direct harassment the applicant mentioned took
place early in 2008. She had to go to Kalafong hospital to
see a
Somali refugee who had been stabbed at the time of xenophobic
attacks which were taking place in the country. Shivatu went
with
her and on the way told her about an alleged former girlfriend of
his, who was now married and who came back to him “for
more”
because he was like a "tiger in bed". He also told her
about a new project that was to be opened in Limpopo
and asked her
if she would be interested in running it. The post would have been a
promotion for her, but she told him that she
couldn't leave her
family to work in Limpopo province. She believed this was an attempt
on his part to win her affection.
The
last incident she recounted also occurred when she had occasion to
go to his office to ask him to sign various financial documents.
He
told her that she “had an effect on him” and that she
“turned him on”. While he made these utterances
he
emphasised his remarks by tugging the elastic of his underpants and
releasing it with a snapping sound. She responded sharply
and firmly
saying that was “too bad” and that he must not think
that she was a “toilet for him to dump his
filth in”.
She also told him that her husband knew about his advances.
This
last remark obviously surprised him. From then on, Shivatu became
distinctly offhand towards the applicant and would not
greet her. He
no longer held meetings with her either. In one act of pettiness he
instructed her, through another staff member,
to remove her car from
her usual parking place and to park it underground. The applicant
attributed his change in attitude to
the fact that previously he
never thought she would tell her husband about his behaviour.
His
spiteful attitude towards her persisted. Even though she was acting
as a project director in Pretoria he did not advise her
when the
permanent post was advertised. She only heard about it indirectly
when she was sent a copy of the advertisement by someone
working at
UNHRC. She sent an application for the post to head office and
Shivatu queried why she had sent it there. He told
her that he would
“show her” because he would draw up the shortlist of
suitable candidates. She was not shortlisted
for the post despite
being interviewed. When she asked for reasons for being turned down
for the post, she never got any response.
All she got was a letter
in July 2008 advising her that her application was unsuccessful.
Although
other persons including Sister V Hasson and Maphosa had formed part
of the interviewing panel, the applicant believed
that Shivatu had a
decisive influence on the final choice. The person appointed to the
position was Ms J Lesisa, an outside candidate.
The
applicant never reported these incidents to the respondent when they
occurred, though she testified that she did recount the
experiences
to her colleague Modise. They laughed about it because Shivatu’s
ludicrous offensive behaviour was at odds
with the image of himself
he liked to present. She also said she had mentioned Shivatu’s
sexual harassment to Maphosa at
a meeting in the Pretoria offices.
After Shivatu’s advances ceased following the last incident,
the applicant just focused
on her work and believed she had dealt
with and resolved the problem in her own way, hence she never
reported it at the time.
This changed when she was told that her
contract would not be renewed.
The
non-renewal of the applicant's contract
The
gist of the applicant's evidence was that the normal procedure for
the renewal of contracts was that the respondent would
ask employees
to re-apply for their posts for the following year some time around
October the preceding year. She was also told
at the time she was
employed that the renewal of contracts was dependent on the
availability of donor funding. Apart from this,
the applicant
herself participated in drawing up budget proposals which were
discussed with the UNHCR, but this did not happen
in 2008 because
Lesisa attended the meeting with Shivatu.
The
first time the applicant heard that her contract would not be
renewed for 2009 was when she was summonsed to a meeting with
Shivatu and Lesisa on 11 December 2007. She was told by them that
her contract would not be renewed the following year. When
she asked
for reasons she was told that she was incompetent, insubordinate and
not compassionate. She asked for this to be put
in writing so that
she could study it further.
After
the meeting she was given a letter confirming that she had been
advised that her contract would not be renewed at the end
of the
month and that the reason was as a result of her ‘continued
poor performance’. Attached to the letter was
a termination
agreement in terms of which she was offered the opportunity to
resign by the following day. The letter was headed
“without
prejudice”, as was the applicant’s reply, in which she
characterised the non-renewal of the contract
as an unfair labour
practice and an act of constructive dismissal.
Although
the respondent raised an objection in its pleadings that its letter
was privileged, it did not persist with the objection
when the
letters were referred to in evidence at trial. In any event, it is
very doubtful at that early stage of events, that
the mere
invocation of the phrase was sufficient to cloak the correspondence
with the privileged status of communications without
prejudice.
1
It would be difficult to seriously
contend that the parties were in the process of settling a dispute
at that time.
The
applicant also disputed the allegation of poor performance. It must
also be mentioned that the applicant said that she had
merely been
told about her ‘poor performance’ in the meeting and the
word ‘continued’ had not been used
to describe it. She
pointed out that Lesisa had barely been three months in the
organisation and had never come to her office.
She questioned how
Lesisa could have reached conclusions about her performance record,
noting also that Lesisa was not qualified
as a social worker. She
suggested that, as such, Lesisa was not able to assess her
performance anyway, which Lesisa disputed.
On
12 December 2008, the respondent advised the applicant in writing to
attend a meeting with the respondent with her lawyer at
a hotel in
Pretoria at 10h00 on 15 December 2008. On the morning the meeting
was due to take place, the applicant sent an e-mail
to the
respondent’s attorneys asking for the agenda of the meeting
and advised that her attorney would not be able to attend
owing to
his other commitments that day. She requested the respondent to
contact him for further arrangements. On the face of
the
correspondence, it appears that the respondent’s attorneys did
try to do so but were unable to make contact with the
applicant’s
erstwhile attorney because the contact details they were given were
incorrect.
Be
that as it may, at approximately 17h00 on 15 December the
respondent’s attorney sent another letter re-scheduling the
meeting for 08h30 on 17 December 2007. In that letter, the
respondent’s attorneys stated:
"
Kindly
further note that the purpose of the meeting is to formally discuss
the renewal of your fixed term employment contract. Our
instructions
are that your performance has been of such a poor standard that our
client does not wish to renew the contract. To
this end, you will be
given an opportunity to discuss the matter and to advance reasons as
to why our client should consider giving
you a further fixed term
contract.
"
On
15 December, the applicant also decided to raise with senior
management of the respondent what she believed lay behind the
non-renewal of her contract allegedly for continued poor
performance. She wrote to Sister V Hasson, advising her that she had
been informed her contract would not be renewed for the reason given
and that she had been asked to resign. She then went on
to say:
"I
wish to inform you that the country director, Shivatu made sexual
advances towards me which I reject it, this happened when
I was the
acting project director. My refusal to heed for the sexual favours
resulted in me being victimised. This strained the
working
relationship between Shivatu and Me. I believe this caused me not to
get the project director’s post and subsequently
my job.
Thabile (Johannesburg project director) and other social workers know
about this issue.”
This
is sexual harassment and cannot be tolerated in the workplace. This
is the reason I do not believe that the nonrenewal of my
contract is
based on poor performance but the lack of sexual favours."
(
sic
)
In
conclusion, the applicant appealed to Hasson to intervene in the
matter. She received a reply from Hasson the following day.
Hasson
advised the applicant that she was on leave in the USA and would
only be returning to Johannesburg on 19 January 2009.
She promised
however to refer her request to Sister J Whitaker. She suggested
that the applicant should not return to the office
after the
holidays but rather meet with Whitaker as soon as possible.
When
questioned under cross-examination as to why she only raised the
allegations of sexual harassment at this stage, the applicant
responded that until then her very employment had not been
threatened. However, she conceded that the respondent’s code
of conduct made it clear that sexual harassment towards fellow staff
members was regarded as dismissible misconduct and that
acts of
sexual abuse by a fellow employee had to be reported in terms of the
code. It was put to the applicant that her claim
of sexual
harassment was improbable given the fact that she failed to report
any of the incidents, despite a clear policy prohibiting
such
conduct and an obligation on her to do so. In answer she confirmed
her earlier testimony that she thought that if Shivatu
no longer
bothered her she could continue working. She said she never
anticipated what happened subsequently.
On
17 December 2008, the applicant’s erstwhile attorney
re-entered the picture and responded to the employer’s
correspondence,
proposing
inter alia
that the meeting
scheduled by the respondent’s attorney should take place on
the 12th and 13th or 14th of January 2009
instead. The letter also
demanded the renewal of the applicant’s contract and disputed
the alleged reason for its nonrenewal.
In a patronisingly sarcastic
reply on the same day, the respondent’s attorney made it clear
that he could only meet the
applicant's attorney in March and that
the question of the renewal of the applicant’s contract would
not be a topic of
discussion then. The letter also called upon the
applicant to provide reasons by 18 December 2008 why her contract
should be
renewed.
On
19 December 2008, the applicant was given a letter issued by the
respondent itself, the introductory paragraph of which read
reads:
“
Further
to our meeting dated 11 December 2008, including correspondence
between us and you on between our attorney and your attorney
regarding renewal of your fixed term contract. We regretfully confirm
that your employment with us is terminated with effect from
19
December 2008.
"
(
sic
)
The
letter noted that the applicant did not avail himself of opportunity
to meet to discuss the renewal of the contract nor had
she provided
any reasons why it should be renewed. The letter then provided some
details of her alleged poor performance, a failure
to maintain
professional standards of behaviour and insubordination. In short,
the complaint was that: the applicant had been
verbally warned on
three occasions about her poor performance in relation to her
service delivery; she asked police to remove
clients from the
premises in April 2008 instead of assisting them; she failed to
report for work on time on 4, 10, 13 and 17
March 2008, which was
part of a trend until August; she declined to sign the attendance
register from September to December 2008;
she failed to report for
work on 16 December without a valid reason and her timekeeping was
poor despite discussions and complaints
from management. Her failure
to maintain professional standards of behaviour was based on a claim
that she had not “bought
into” the “core values”
of the respondent nor had she displayed a professional standard of
behaviour. No factual
details of this complaint were provided. The
allegation of insubordination appeared to be based on a statement
that she told
Lesisa she would not come to work whether or not
Lesisa authorised her leave of absence or not. The letter was signed
by Shivatu
and co-signed by Lesisa.
The
applicant denied that any of these details were discussed in the
meeting on 11 December 2008. No further evidence in support
of any
of these claims was put to the applicant under cross examination,
apart from the issue of whether or not she was supposed
to be at
work on 16 December 2008. The applicant pointed out that none of the
alleged misconduct before September 2008 could
have been within
Lesisa’s knowledge as she did not work for the respondent
until September 2008. She specifically denied
that any of these
issues have been raised with at the time the alleged
under-performance occurred, and was emphatic that her
performance
had not been an issue until it was first raised with her at the
meeting of 11 December 2008. When Lesisa gave evidence
she agreed
that she was unable to comment on any of the allegations prior to 1
September 2008. Her own recollection of alleged
instances of poor
performance after that date was vague at best. Lesisa could not
recall when the applicant had allegedly taken
leave contrary to her
refusal to grant her leave, but said that she thought it had been
for one day. She also testified that
the applicant's alleged poor
attendance had been discussed with her on several occasions and when
the applicant left work early
she never made arrangements with
herself beforehand. Apart from the vagueness of Lesisa’s
account, little effort was made
to put this version of her alleged
poor performance and insubordination to the applicant during her
cross-examination.
Regarding
the timing of the decision not to renew the contract, Lesisa
conceded more than once under cross-examination that the
decision
not to renew the applicant’s contract had been taken by 11
December 2008. She also agreed that the respondent
had not followed
a proper procedure "in the true sense of the word" in the
way it had dealt with the applicant's alleged
poor performance.
Although the respondent had spoken of the applicant advancing
reasons why her contract should be renewed, Lesisa
agreed that the
subject matter of any meeting would have dealt with the issue of
poor performance and not the renewal of the
contract as such.
Even
though Lesisa stated in her evidence in chief that the applicant’s
poor performance had been discussed in the meeting
on 11 December
2008, she agreed that the information on which the allegation of
poor performance was based had still not been
conveyed before the
meeting which the respondent had tried to schedule on 15 December
2008. Further, Lesisa eventually conceded
that the opportunity
afforded to the applicant to be heard was only offered after the
decision not to renew her contract had
already been taken by 11
December 2008.
While
acknowledging the importance of Shivatu’s input on the claims
of poor performance prior to her appointment, Lesisa
claimed that
she made her own assessment of the applicant's performance and was
not reliant on his views in concluding that the
applicant’s
contract should not be renewed.
The
respondent claimed the applicant never provided any reasons for the
renewal of her contract, but this claim is not accurate.
In her
correspondence in December 2008, the applicant contended that there
was no basis for making allegations of poor performance.
She
emphasised that she had worked under two project co-ordinators
previously without any criticism of her performance being
levelled
against her. There was also no standard to which she had previously
been referred as the basis for measuring her performance.
In
the letter from her attorney on 17 December 2008, it was also
mentioned that: the applicant’s contract had been renewed
on
four previous occasions without any complaints about her
performance; the issue of her performance was only raised with her
at the time that the contract was about to be renewed; there was
never any assessment of her performance before previous renewals,
and no support had been offered to allow her to improve on the areas
of alleged poor performance.
The
applicant’s colleague, Modise could not claim any direct
knowledge of the alleged incidents of sexual harassment related
to
her by the applicant. The gist of her evidence was that the
applicant had told her that Shivatu wanted to sleep with her and
they had laughed about the way he was performing in the office when
he was supposed to be a leader. Under cross-examination it
was
suggested to her that her recollection of what Shivatu allegedly
said to the applicant was at odds with the applicant's own
version.
However, from her reply it was clear that Modise was drawing an
inference about Shivatu’s intentions from what
the applicant
had told her. She also recounted the episode of Shivatu tugging at
his pants to demonstrate his supposed potency.
Although she said
that she was told of many instances of sexual harassment by the
applicant, when pressed under cross- examination
she recalled
hearing of at least two instances of the director’s behaviour
towards the end of 2007 and at least two occasions
in 2008. Her
recollection broadly accords with the four specific incidents
highlighted by the applicant in her testimony.
Maphosa
was reluctant to confirm that he had been advised by the applicant
of Shivatu’s sexual advances, but did not deny
that she might
have mentioned it. Nevertheless, he insisted that if she had raised
the issue in the form of a formal complaint
he would definitely have
taken it up and would have remembered it.
Maphosa
agreed that he was part of the panel which had interviewed the
applicant for the project director’s post, but said
that he
had not taken part in the decision to appoint Lesisa. What he did
say was that there were conflicts in the Pretoria office
and the
regional office wanted to appoint a new person, though none of this
had been put to the applicant.
Analysis
Was
the applicant dismissed?
In
the cross-examination of the applicant and Lesisa, much was made of
the significance to be attached to the wording of the respondent’s
letters of 11 and 19 December 2008 in deciding whether the applicant
was effectively dismissed prior to the expiry of her contract
or
not. There was sufficient evidence to have concluded that the
respondent's letter of 19 December 2008 could only have meant
that
the applicant’s services were being terminated immediately,
but the applicant did not persist in claiming that her
services had
been terminated before the expiry of her contract at the end of
December 2008. Instead, Mr Voyi, who represented
the applicant,
argued that there was sufficient evidence to conclude that she had a
reasonable expectation that her contract
would be renewed in 2009,
and that the failure to do so in those circumstances amounted to a
dismissal in terms of section 186
(1) (b) of the LRA.
I
am inclined to agree. On four previous occasions her contract had
been renewed without any evidence of any performance assessment
being conducted as a pre-requisite for a renewal. Provided there was
a proper motivation for the continuation of the post, and
if funding
was available, then incumbents could reasonably expect they would be
employed for another year. It is true that the
practice of the
existing employees applying for the renewal of their contracts at
the end of each year was not followed without
exception before 2008,
but there was nothing that would have alerted a reasonable person in
the position of the applicant that
there was even a possibility that
her contract would not be renewed for any reason, let alone her
alleged poor performance.
Although
Lesisa testified that the respondent had not replaced anyone in the
applicant's position after she left, the possibility
that her post
was not required would not have been obvious to anyone in the
applicant's position towards the end of 2008. She
had testified that
she had already motivated a budget for her project for the following
year. No feedback was provided by the
respondent suggesting it was
based on an incorrect premise about staffing requirements for 2009.
The applicant could also not
have anticipated that her contract
might not be renewed by reason of her alleged poor performance. If
there had been poor performance
of the kind described in the
respondent’s letter of 19 December 2011, there is every reason
to suppose that it would have
been raised with the applicant soon
after the supposed incidents occured. Lesisa could not offer
reasonable explanation for the
delay in raising the issues, though
she made vague claims that there had been previous discussions with
the applicant about her
performance. Moreover, no evidence was
tendered to suggest that the work performed by the applicant was no
longer required. The
two social work posts in the Pretoria office
advertised by the respondent in January 2009 are also difficult to
dissociate from
the fact that both the applicant and Ms Modise’s
positions at that office were vacant at the end of 2008, and the
broad
job description in the advertisement would not have been at
odds with the applicant’s job functions. I do not believe it
is coincidental that the advertisement called for applicants who
could start immediately. The inference to be drawn from this
is that
both the need for the job the applicant performed still existed and
the funding was available.
In
the circumstances, I am satisfied that there is sufficient evidence
to conclude, on a balance of probabilities, that the applicant
had
more than a reasonable basis for believing that her contract would
be renewed as it was in previous years. As such I am satisfied
that
the failure to do so amounted to a dismissal within the meaning of
section 186 (1)(b) of the LRA.
Was
the applicant’s dismissal automatically unfair?
Essentially
what must be determined here is firstly whether the respondent’s
account of the alleged sexual advances of the
national director
should be believed or not. If it should be believed, the next
question is whether the applicant’s failure
to respond
favourably to those advances was the proximate cause of her
dismissal.
The
applicant’s testimony of the specific acts of sexually
aggressive behaviour of the director aimed at her was relatively
detailed, plausible and could not be directly contradicted by the
respondent. Understandably, the respondent sought to suggest
that
her account ought not to be believed because she never raised any
grievance about it at the time. It is true, that the applicant’s
failure to make an issue of a deeply felt grievance at the time when
it was suffered calls for a plausible explanation, which
must be
carefully assessed.
On
the evidence I am satisfied that she has provided one. Firstly, it
is clear from the evidence that on all of the occasions
when the
director made his advances on her she successfully resisted him. Her
attitude was that if she remained firm and unyielding
he would
eventually give up. It is true that he was not easily deterred,
despite her obvious hostility and his failure to overcome
it. But
eventually, apparently because he was put off by the knowledge that
the applicant had informed her husband about his
behaviour, he did
stop harassing her. His behaviour then changed from attempting to
win her over to shunning her.
Moreover,
even though Modise had no direct knowledge of what transpired
between applicant and the director, I am satisfied that
the
applicant had told her of his behaviour around the time when the
applicant had said it took place. Whatever other corroboratory
value
Modise’s testimony might have, it does tend to support the
applicant's version that the events she related were not
something
she concocted in desperation to save her livelihood when it was
threatened at a later stage. Further, even though Maphosa
equivocated about whether or not he would have remembered a formal
complaint made to him by the applicant as opposed to merely
being
told informally about the director's antics, he would not go so far
as to say that the applicant could not have related
the issue to
him.
Another
woman in the applicant's position who was less self assured than the
applicant might have sought the intervention of a
third party
sooner, but the applicant not unreasonably believed that she was
strong enough to deal with the situation herself.
However, she
miscalculated in believing that, once the acts of direct harassment
had ceased, the matter would end there.
Was
the reason for the applicant’s dismissal her failure to succumb
to the director’s sexual advances?
What
is clear from the evidence is that there was a sea change in the
director’s demeanour towards the applicant once he
accepted
his campaign of sexual conquest had come to naught. From being an
object of desire she became an object of contempt
in his eyes. There
was the direct evidence that he stopped communicating with the
applicant. Modise also felt that her association
with the applicant
led to a deterioration in her working relationship with the
director.
The
applicant was occupying the post of a project director in an acting
role, yet when the post was advertised she only learnt
of this fact
from an external source. The failure of Shivatu to notify her of
this is difficult to construe in any other way
than an attempt to
minimise the prospect of her applying for the post. His comments to
her about his role in short listing candidates
also indicated his
hostility towards her advancement in the organisation. The director
was also the principal signatory on the
letter confirming the
non-renewal of her contract mainly on grounds of poor performance
much of which only he could have verified.
It was suggested to the
applicant in cross-examination that if he had wished to get rid of
her because she had rebuffed him,
her contract would not have been
renewed for 2008. However, this is easily explained when one takes
into account the fact that
he had not yet given up his sexual
ambitions by the end of 2007: it was only in 2008 that he accepted
defeat.
It
seems quite plausible, given the director’s conduct described
above, that he was capable of vindictive action against
the
applicant. Lastly, the fact that the issue of the applicant's
alleged poor performance was only raised at the eleventh hour
before
the contract fell due for renewal, at a point when there was little
the applicant could have done to rectify any genuine
performance
shortfalls, suggests that an element of bad faith underlay the
ostensible reason for her dismissal. This inference
is strengthened
when one considers how long it took for the respondent to articulate
in writing its alleged complaints about
the applicant's performance.
The
respondent did not make any concerted effort in these proceedings to
substantiate the allegations of poor performance to demonstrate
it
had a legitimate reason for dismissing her. Moreover, it cannot be
seriously disputed by the respondent that it had already
decided not
to renew the applicant's contract even before she had been given an
opportunity to respond to any detailed account
of her supposed
shortcomings.
The
respondent tried to demonstrate through Lesisa’s evidence that
the decision not to renew the applicant's contract was
one that
Lesisa had a major role in. However, it was apparent even from
Lesisa’s own evidence that she would have been
heavily reliant
on what Shivatu related to her about the applicant’s alleged
poor performance prior to September 2008.
Consequently, there is
good reason to believe that his views on the matter would have
played a dominant role. Moreover, he remained
the national director
and was the primary signatory of the letter of 19 December 2008.
Not
only was the applicant’s repulse of the director’s
sexual advances one of the reasons for her dismissal, but it
is also
the most probable explanation for the dismissal. It is trite law
that so-called quid pro quo acts of sexual harassment
amount to
unfair discrimination. The Code of Good Practice on the Handling of
Sexual Harassment Cases
2
defines the forms taken by sexual
harassment as follows:
“
4.
Forms of Sexual Harassment
(1)
Sexual harassment may include unwelcome physical, verbal or
non-verbal conduct, but is not limited to the following examples:
(a) Physical
conduct of a sexual nature includes all unwanted physical contact,
ranging from touching to sexual
assault and rape, and includes a
strip search by or in the presence of the opposite sex.
(b) Verbal
forms of sexual harassment include unwelcome innuendoes suggestions
and hints, sexual advances, comments
with sexual overtones,
sex-related jokes or insults or unwelcome graphic comments about a
person's body made in their presence
or to them, unwelcome and
inappropriate enquiries about a person's sex life, and unwelcome
whistling at a person or group of persons.
(c) Non-verbal
forms of sexual harassment include unwelcome gestures, indecent
exposure, and the unwelcome display
of sexually explicit pictures and
objects.
(d)
Quid pro quo harassment occurs where an owner, employer, supervisor,
member of management or co-employee undertakes
or attempts to
influence or influences the process of employment, promotion,
training, discipline, dismissal, salary increments
or other benefits
of an employee or job applicant in exchange for sexual favours.”
The
obverse of granting employment benefits in exchange for sexual
favours, is when an employee is disadvantaged for not granting
them.
Clearly this is an impermissible criterion for differentiating in
the treatment of employees and will constitute unfair
discrimination. An employee dismissed on such basis is clearly
dismissed for an impermissible reason and one that is unfairly
discriminatory within the meaning of section 187(1)(f) of the LRA
read with section 6(3) of the EEA. The former provision forbids
dismissal on any unfairly discriminatory ground and the latter
provision identifies harassment as a form of unfair discrimination
if it is based on one or more of the impermissible grounds of
discrimination. In this instance, the applicant was clearly targeted
by Shivatu because she was a woman.
The
claim of unfair discrimination in terms of section 50(2) of the EEA.
This
claim, as I understand it, relates essentially to the improper
sexual advances of the director as such, which he made late
in 2007
and early in 2008. Although there was a suggestion that there may
have been an element of
quid pro quo
harassment relating to
the director's suggestion that the applicant apply for a post in
Limpopo province, the gravamen of the
applicant's complaint in
relation to those incidents she was subjected to unpleasant,
aggressive and clearly unwanted sexual
harassment by him. Although
the director's actions in dismissing the applicant are connected to
these earlier incidents, even
if nothing further had happened after
his antics had ceased, those actions still amounted to acts of
sexual harassment.
As
such, his conduct on those occasions could render the respondent
liable for a separate claim for damages and compensation in
terms of
section 50(2) of the EEA. For the reasons stated below I do not
think it would be appropriate on the facts of this case.
Relief
It
was common cause that the applicant was able to obtain employment
within two months of her dismissal, so the direct financial
loss she
suffered is limited to her salary for those months. However, that is
not necessarily the limit of an award of compensation
for an
automatically unfair dismissal as the reasoning of the court in
Colliers
case
illustrates.
In
Christian v Colliers
Properties
(2005)
26
ILJ
234 (LC)
an
employee who was dismissed after a couple of days in her new job as
a secretary after refusing to succumb to her superior’s
sexual
advances was awarded 24 months compensation in view of the
calculating and callous manner in which she was treated.
3
In this matter, the applicant made it
clear during her testimony that she had not embarked on the
litigation with the object of
obtaining a large amount of
compensation, but mainly with a view to clearing the slur on her
professional reputation by removing
the stigma attached to being
dismissed for alleged poor performance. However, she was also angry
that her director had been able
to prejudice her so severely because
she had not responded favourably to his aggressive sexual behaviour.
I
am also mindful of the fact that in this case the respondent
organisation is dependent on donor funding and performs an important
service to a vulnerable section of the community for whom limited
support services exist. Nevertheless, the respondent did have
an
opportunity to rectify matters before the litigation started to run
its course in earnest.
From
the evidence it appears that once it became known that the applicant
had referred her dispute to the CCMA, the respondent’s
senior
management was not willing to intervene in the matter. There is
nothing to suggest that the opportunity of conciliation
afforded by
the CCMA process was utilised to try and address the serious
allegations levelled against the director by the applicant
before
the matter escalated. It is also regrettable that respondent’s
senior management had not seen the need to act with
greater urgency
in dealing with the applicant's complaint, instead of simply
advising her to act in compliance with the non-renewal
of her
contract and postponing any intervention until the following year.
Further,
no evidence was presented that any internal investigation into the
director’s alleged conduct was undertaken by
the respondent.
It might have been so that by the time this matter came to trial the
former director was unobtainable as a witness,
but it is also
striking that there was no evidence of any action being taken to
probe such a serious allegation of impropriety
committed by a senior
management figure, even if the respondent’s senior management
had believed at the time that the applicant's
performance did not
warrant the renewal of her contract.
Given
all these considerations, I think that an award of eight months’
remuneration for the applicant’s automatically
unfair
dismissal would be appropriate.
The
applicant's claim of unfair discrimination under the EEA
In
Colliers’
case the applicant also claimed
compensation for sexual harassment in terms of section 50 of the
EEA. In that instance she was
awarded an amount equivalent to
approximately five month’s remuneration. In the same
judgement,
a number of other
decisions are cited in which varying amounts of compensation were
awarded in terms of this provision. The learned
judge in the matter,
Oosthuizen AJ, observed, correctly in my view that amount awarded in
other judgements could only serve as
a guideline.
4
In
Colliers
’
case there was no meaningful
opportunity for the applicant to raise a grievance even if a channel
had existed, because matters
happened so fast. In this instance, the
applicant was aware that she could take the matter further even
though she had doubts
about the ability of the more senior
management to attend to such matters because of their regular
absences from the country.
She had therefore decided to deal by
herself with the incidents of harassment which she related in her
evidence. At least for
a time it seemed that she had effectively
brought unpleasant episode to an end.
That
does not mean that the director’s conduct can be condoned: it
was completely unacceptable and crude behaviour which
no employee
ought to be subject to. Nevertheless, because the applicant took
matters completely into her own hands the respondent
was never
afforded an opportunity to address the director's improper behaviour
itself when it took place. Moreover, the applicant
was a
professional person and had occupied positions of responsibility
within the organisation and was aware of the respondent's
code of
conduct in such matters.
While
I can understand the applicant’s motivation for dealing with
the matter herself thereby avoiding the complication
and
unpleasantness of involving third parties, once she had done so and
consciously decided not to pursue a grievance at the
time, it would
be unduly onerous to now saddle the respondent with the burden of a
compensatory award, when it could not reasonably
have anticipated
the director's actions, nor could it be said that it had any
opportunity to address his conduct at the time.
On the facts of this
matter therefore I do not believe a separate award of compensation
for the original acts of sexual harassment
would be justified. In
arriving at this conclusion I have also taken into account Section
60 of the employment Equity Act, which
states:
“
60 Liability
of employers
(1)
If it is alleged that an employee, while at work, contravened a
provision of this Act, or engaged in any conduct that, if engaged
in
by that employee's employer, would constitute a contravention of a
provision of this Act, the alleged conduct must immediately
be
brought to the attention of the employer.
(2)
The employer must consult all relevant parties and must take the
necessary steps to eliminate the alleged conduct and comply
with the
provisions of this Act.
(3)
If the employer fails to take the necessary steps referred to in
subsection 2, and it is proved that the employee has contravened
the
relevant provision, the employer must be deemed also to have
contravened that provision.
(4)
Despite subsection (3), an employer is not liable for the conduct of
an employee if that employer is able to prove that it did
all that
was reasonably practicable to ensure that the employee would not act
in contravention of this Act.
”
For
the purposes of this judgement it is not necessary to analyse the
nuances of this provision because it is clear that senior
management
would not have been aware of the alleged misconduct, which was
clearly contrary to its stated policy, until the applicant
raised
the matter in her letter to Hasson in December 2008,.
Costs
There
is no ongoing relationship between the parties. Even if I consider
that the respondent is a completely donor funded institution,
the
applicant was only able to obtain any redress by incurring
unnecessary legal costs and in the circumstances it would be
inequitable that she should not obtain some recompense for these.
Consequently this is a case in which the respondent should pay
the
applicant's costs in my view.
Order
The
respondent is ordered to pay the applicant an amount of R 80, 411-20
(eighty thousand, four hundred and eleven rands and twenty
cents)
being the equivalent of eight months’ remuneration of the
applicant at the time of her automatically unfair dismissal
at the
end of 2008.
No
order of compensation is made in respect of the sexual harassment of
the applicant in late 2007 and early 2008.
The
respondent is ordered to pay the applicant’s costs.
ROBERT LAGRANGE
JUDGE OF THE LABOUR
COURT
Date of hearing: 2 -4
August 2010
Date of judgment: 13
January 2011
Appearances:
For the Applicant: N P
Voyi of Voyi attorneys
For the Respondent: ESJ
Von Graan, SC instructed by Rudolph Kuhn Attorneys
1
In
this regard see
Jili
v South African Eagle Insurance Co Ltd
1995
(3) SA 269 (N)
,
per Combrinck J at 275B, also cited with approval in
Lynn
& Main Inc V Naidoo and Another
2006
(1) SA 59
(N)
at
65,[22], viz
:
“
No
conclusive legal significance attaches to the phrase 'without
prejudice'. The mere fact that a communication carries that phrase
does not per se confer upon it the privilege against disclosure, for
example where there exists no dispute between the parties
or it does
not form part of a genuine attempt at settlement (Merry v Machin
1926 NPD 236
; Schmidt Bewysreg 2nd ed at 552-3); nor is a
communication unadorned by that phrase always admissible in
evidence, for it will
be protected from disclosure if it forms part
of settlement negotiations (Gcabashe v Nene
1975
(3) SA 912 (D)
at
914E-G, and see Cross on Evidence 5th ed at 300).
”
2
Published
under GenN 1367 in GG 19049 of 17 July 1998
3
At
240A-C
4
At
242I-J