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[2011] ZALCJHB 5
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Biggar v City of Johannesburg, Emergency Management Services (JS 232/09) [2011] ZALCJHB 5; [2011] 6 BLLR 577 (LC); (2011) 32 ILJ 1665 (LC) (10 February 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD AT
JOHANNESBURG)
CASE NO: JS
232/09
In
the matter between
VICTOR
BIGGAR
Applicant
and
CITY CITY OF
JOHANNESBURG, EMERGENCY MANAGEMENT SERVICES
Respondent
______________________________________________________________________________
JUDGMENT
______________________________________________________________________________
LAGRANGE, J
Introduction
This is a matter
which is brought as an unfair discrimination claim in terms of
sections 6 (1) and (3) of the Employment Equity
Act 55 of 1998 (‘the
EEA’). The matter was enrolled for default judgment on the
unopposed roll.
It is regrettable
the employer chose not to defend this action and the matter had to
be decided on a default basis. The allegations
are of a serious
nature and implicate the City of Johannesburg in being derelict in
its responsibility to try and eliminate racist
conduct by its
employees in the workplace. The employer's failure to engage in the
dispute, apart from suggesting it is indifferent
to the outcome also
makes it more difficult for the court to craft an appropriate remedy
to adequately address the issue.
It is
particularly unfortunate when the matter at hand, like this one,
concerns important constitutional principles such as the
rights to
equality and dignity. It is also a matter of great concern that the
employer in question is an organ of state, which
is accused of
neglecting to uphold such values in the workplace.
Factual issues
The applicant
claims that during his time at the fire station he and his family
have been exposed to severe racism, which, in
his own words he
describes as being "…
so bad it almost feels like a
religion
”. The racism he complains of has been directed at
him and his family not by the employer itself but by certain white
colleagues
and their families living in the same fire station
complex. However, the applicant complains that despite his efforts
to bring
matters to the attention of his employer, the problem has
not been adequately addressed by the employer. The most detailed
exposition
of his litany of complaints in this regard is set out in
a letter written by the applicant to the Human Rights Commissioner
on
14 February 2007.
History of the
matter
When the applicant
was first employed at the fire station, his station commander was
Mr. Clark. After the applicant’s family
relocated from Durban
to the Brixton fire station, his children were subjected to various
forms of racial abuse by the children
of his white colleagues who
also resided in the complex. Thus, for example, when the applicant's
went swimming in the communal
pool, some white residents brought
dogs to the pool and even threw the dogs into the pool to scare the
children. This harassment
continued even after the applicant
complained to Mr. Clark about it.
Mr Clark’s
successor as station commander was Mr. G. J. Lues. It appears that
the harassment of the applicant's family in
the complex persisted.
At some point the applicant’s wife reported matters to the
director of operations, Mr. D Tembe.
According to the applicant,
Tembe did reprimand his white colleagues by warning them that if
they or their children did not stop
their behaviour he would suspend
them and they could possibly be dismissed. He also reportedly
instructed Mr. Lues that whatever
happened at the fire station was
his responsibility and he had to sort matters out. This seems to
have been the high watermark
of preventative action taken by the
employer. During Lues’s term of office a petition was launched
by the applicant’s
white colleagues seeking to have him
removed from the station. An inquiry into the grievance was chaired
by Mr. Kay of the employer's
Labour Relations section. According to
the applicant, the complaint by his colleagues was dismissed.
Subsequently, Lues was transferred
elsewhere.
The next station
commander was Mr. Gqiba, who was still in charge of the station at
the time this matter was referred to court.
It appears that the
pattern of abuse by some of the white residents towards the
applicant's family and towards other black residents
in the complex
continued. In another incident which is also illustrative of the
prevailing environment towards black residents,
a wife of a white
colleague had to be restrained by a court order to keep away from a
flat occupied by a black female traffic
officer who had moved into
the complex. Verbal racial abuse hurled at the applicant’s
wife by the same person caused his
wife to open an intimidation case
against the woman at the Brixton police station.
After a year-end
function in December 2006, the applicant’s wife was assaulted
by one Mr. Venter, a colleague of the applicant.
Venter’s
sister, who happens to be married to another colleague also residing
in the Brixton complex, also participated
in the attack on the
applicant’s wife. Following this incident, the applicant’s
wife fled to the fire station where
the applicant was on duty at the
time. He then escorted her back to their residence. On the way there
they were confronted by
Venter who directed racist insults and
threats at them. The applicant decided to go back to the police
station to report the
incident. He also complained to his station
commander, who in turn sent out the standby station commander, Mr.
Malan. Malan found
the applicant at his residence and advised him to
return to work or he would discipline him for absconding. Initially,
the applicant
was not prepared to leave his family alone at their
residence, but he was eventually persuaded to go back to his duties.
The following day
another clash occurred when the applicant was entertaining guests at
his flat. The applicant’s version
is that one of his
colleagues drew a firearm and another made threats with racist
overtones, after which a van of armed white
individuals arrived at
the premises. This prompted the applicant to call on other friends
of his own to support him in the event
of any confrontation.
Malan was again
sent to the station and told the applicant his visitors must leave.
Later, when Malan reported the incident to
Gciba, he blamed the
applicant for what had happened, despite having previously confided
in the applicant that he viewed the
applicant’s white
colleagues as the cause of the problem.
A meeting was
called by the station commander to address the matter. The applicant
was not happy that two of his white colleagues
attended the meeting,
but none of the people who had been present at his flat were asked
to attend. The applicant suggested that
the station commander refer
the matter to his superior. Gciba refused to do this because someone
else had previously complained
that he could not manage the station.
It
appears that nothing was resolved, because a more serious incident
took place early in January 2007. According to the applicant,
it
began with another instance of violent harassment this time directed
at his son. Subsequently, a violent clash ensued between
the
applicant, two of his sons and two of his white colleagues. The
applicant alleges he was beaten by one of his colleagues
with a
sjambok, but defended himself with a knife which resulted in a minor
injury being inflicted on Venter. Soon after this
incident, the
applicant requested to be transferred to the Disaster Management
Department of the respondent. The applicant claims
he has a
qualification in the field of Disaster Management, which made such a
transfer feasible. Nothing came of this request.
Arising
from the incident in January, the applicant was charged with
fighting with colleagues and of bringing the reputation of
the
employer into disrepute. Neither of this two white colleagues who
were participants in the fracas were charged even though
on the face
of it it would have been reasonable to expect they would have been.
The applicant also referred to a separate incident
in 2005 when two
of his white colleagues were involved in a fight in full view of
other employees but no disciplinary action
was taken against them.
The
applicant was only charged with misconduct in October 2007, some
nine months after the event. Before the disciplinary enquiry
was
held he and his sons were put on trial facing criminal charges
relating to the same incident. Ultimately, in November 2007,
they
were acquitted of all charges. In passing, it is noteworthy that the
magistrate expressed his outrage that an incident of
the kind
described could take place at the fire station premises, and was
highly critical of both the applicant’s and his
white
accusers’ conduct.
The applicant's
disciplinary enquiry was held during March 2008. At the end of the
enquiry he was found guilty on the charge of
fighting with
colleagues and issued with a warning. In February 2008, shortly
before the enquiry began, the applicant referred
a complaint to the
Human Rights Commission relating to the abusive treatment he and his
family had suffered at the hands of his
colleagues. It appears that
nothing concrete resulted from this referral. On 6 March 2008, the
applicant referred two disputes
to the South African Local
Government Bargaining Council. The first dispute was an unfair
labour practices dispute over the failure
of the employer to promote
him to its Disaster Management department despite many requests to
do so and despite his competence
in that field. The second dispute
concerned a complaint of unfair discrimination arising from the
racist harassment by his fellow
employees which the employer had
failed to eliminate.
Analysis
It
is an unavoidable and undesirable feature of a default judgment that
the matter has to be decided on the evidence presented
by one party
only. Be that as it may, I am faced with a situation where the
employer has chosen not to defend its actions and
consequently the
matter falls to be decided solely on the applicant’s account
of his experiences at the Brixton Fire Station
complex.
Section 6
of the
Employment Equity Act number
55 of 1998 (‘the EEA’)
provides that:
“
(1)
No person may unfairly discriminate, directly or indirectly, against
an employee, in any employment policy or practice, on one
or more
grounds, including race,...
(3) Harassment of
an employee is a form of unfair discrimination and is prohibited on
any one, or a combination of grants of unfair
discrimination listed
in subsection (1).
”
On
the evidence available, there can be little doubt that the applicant
and his family were the direct objects of sustained racial
harassment at the hands of his fellow employees at the residential
premises provided by the employer. The harassment of the applicant’s
family was also indirectly affected him.
Section 60
of the EEA
states:
"
(1)
If
it is alleged that an employee, while at work, contravened any
provision of this act, or engaged in any conduct that, if engaged
in
by that employees 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 the provision
.
(4) Despite
subsection (3), an employee is not liable for the conduct of an
employee
if that employer is able to prove that he did all
that was reasonably practicable to ensure that the employee
was not act in contravention of this act.
"
(emphasis added)
This is not the
type of case in which it is necessary to first determine whether
there was discrimination and secondly whether
it was unfair. The
conduct the applicant complained of was overtly racist in character
and could never be fair.
It
cannot be said the employer took no steps to try and address the
racial hostility which manifested itself in the residential
quarters
at the station. On the applicant's own account, a warning was issued
to two of his antagonists and initially senior
staff did attend to
matters when incidents occurred. However, the respondent did not
follow through on any of these initiatives
to try to achieve a
lasting solution, and it is remarkable that no disciplinary action
was ever instituted against the perpetrators
of the racial abuse
directed towards the applicant and his family. The only reasonable
conclusion that can be drawn is that the
employer was essentially
reluctant to deal with the real issues and matters were allowed to
fester unresolved. When the employer
did take more forceful action
by initiating disciplinary steps arising from the fracas in January
2007, it did so by selectively
instituting an enquiry into the
applicant’s conduct alone. The employer's inconclusive and ad
hoc responses to such a systematic
pattern of racial harassment
cannot be considered adequate in the circumstances. Also, its
mysteriously one-sided approach to
the incident in January 2007 was
unjustifiable, especially when the proceedings were only held at a
time when it should have
been well aware of the trial magistrate’s
findings which portrayed the applicant’s white accusers in an
equally bad
light.
In short, the
employer did not take all necessary steps to eliminate the racial
abuse that was being perpetrated by some of its
employees at its
residential premises and it cannot be said that it did everything
that was reasonably practicable to prevent
the continued harassment.
It might be argued that, in the strict sense, the harassment by the
applicant's fellow employees did
not take place when they were at
work. However, in my view, it would be an extraordinarily narrow
interpretation of the provisions
of
section 6
of the EEA if it were
to exclude conduct between fellow employees committed at the common
residential premises provided by the
employer and attached to their
workplace merely because they were not on duty at the time the
particular incidents occurred.
It would also mean that whereas an
employer would be entitled to take disciplinary action against an
employee for such discriminatory
misconduct taking place outside the
strict confines of the workplace and having a bearing on the
employment relationship, an
employee who was the target of such
unfair discrimination would not have a remedy where the employer
decides not to act. Such
an anomaly could not have been intended in
my view, especially where the wrong is one affecting an employee’s
constitutional
rights to dignity and equality
It
should be noted that the labour courts have long acknowledged that
disciplinary action may be taken against an employee for
conduct
committed outside the workplace if it has a bearing on the
employment relationship.
1
In
this instance, the animosity directed towards the applicant by some
of his colleagues could not have boded well for their working
relationship in emergency situations.
The
fact that the employer warned the perpetrators about the conduct and
took disciplinary action against the applicant in relation
to the
January fracas, which both took place at the residential premises,
demonstrates that it understood it was entitled to
take action
against them as employees. The very presence of those individuals as
residents at the fire station complex is directly
linked to their
employment as emergency fire personnel. It cannot be credibly argued
that, as resident employees, their conduct
on those premises whilst
off duty was beyond the remit of the employer's disciplinary powers,
especially where such conduct clearly
could have repercussions for
the working relationship. I am also satisfied that the residential
circumstances of the alleged
perpetrators and the applicant were so
closely linked to their employment as emergency fire personnel that
for all intents and
purposes they remained at the workplace when
they were off duty at their residences on the employer's premises
situated at the
fire station. In the circumstances of this case, it
would be artificial to treat the relevant individuals’ conduct
towards
each other at their residential quarters as conduct which
did not occur while at work, because of the close relationship
between
the workplace and the residential arrangements which applied
to them.
Remedy
Section 50
(2) of
the
Employment Equity Act provides
inter alia
that:
"If the
Labour court decides that an employee has been unfairly discriminated
against, the court may make
any appropriate order that is
just and equitable in circumstances
, including-
(a) payment of
compensation by the employer to that employee;
(b) payment of
damages by the employer to that employee;
(c) an order
directing the employer to take steps to prevent the same unfair
discrimination or a ;..."
(emphasis added)
This provision makes
it clear that the ambit of the type of relief the court can award is
wide and the listed remedies are not mutually
exclusive, nor are
other unspecified forms of relief excluded provided they are
appropriate, just and equitable.
The
primary relief that the applicant seeks in this matter is to be
transferred to another department, which presumably would
result in
him moving from the premises at Brixton fire station, though he also
seeks compensation. His attempts to persuade his
employer to
implement such a transfer have to date been unsuccessful. It is not
apparent from the evidence before me why it has
not been possible to
transfer the applicant to the Disaster Management Department of the
respondent. Equally it is not clear
what specific post the applicant
might be suitably qualified for. If such a transfer took place, and
had the effect of the applicant
escaping the hostile racist
environment he finds himself in, that would resolve the applicant’s
personal problem. In another
sense though it would avoid dealing
with the root cause of the problem by removing the victim of
harassment rather than dealing
with his antagonists. It would not
provide any assurance that other black residents of the Brixton fire
station premises would
not become the targets of similar acts of
racial hostility. The applicant provided evidence that he was not
alone in being targeted
by racist colleagues: at least one other
black resident was compelled to take legal action to halt harassment
by other residents.
In
the circumstances, it seems that a combination of different remedies
with different aims might alleviate the situation. A more
tailored
remedy, which might be more appropriate is difficult to devise
because of the lack of detailed evidence on matters such
as the
existence of suitable alternative posts which the applicant might be
capable of filling. Nonetheless, the employer ought
to take more
proactive steps to place the applicant in another appropriate post
in a different department. Secondly, the employer
must take more
decisive measures to eliminate acts of racial harassment between
employees residing on its premises. There is
no reason why the
employer's disciplinary code should not be adequate to deal with
instances of racial harassment. What appears
to be lacking is the
will to follow through in giving effect to the code. Accordingly, it
seems that some degree of compulsion
is required which impels the
employer to initiate an investigation and, if necessary, take
disciplinary action when circumstances
indicating racial hostility
arise. Regarding the question of compensation, I accept that the
applicant suffered the racial hostility
of his colleagues over an
extended period of time and some kind of compensation for the past
negative impact on his dignity caused
by the systematic racial
harassment would be appropriate. Likewise some compensation is
justified for the employer’s partial
approach to initiating
disciplinary measures against him alone and not against the two
white colleagues who were involved in
the fracas. This must be
balanced against the fact that the employer did take some action on
an ad hoc basis
The
applicant's narrative of events prior to 2006 is not specific as to
dates when certain harassment took place which might have
been
directed more at the applicant’s children than at him as such,
but it is fair to say on the evidence that the applicant
was the
object, directly and indirectly, of racially hostile acts in 2006
and 2007. In the circumstances, it seems that a payment
of
compensation in the form of a
solatium
of one month's remuneration for each year during which such actions
occurred would be appropriate.
To
facilitate a more proactive and decisive approach by the employer to
the problem of racial harassment, I believe that an investigation
by
the station manager must be conducted as a matter of course whenever
there is a complaint of conduct of a racially discriminatory
nature
directed by one employee against another. Any investigation of this
nature ought to include a recommendation whether or
not disciplinary
action should be instituted against any employee and, in the event
that no disciplinary action is recommended,
the reason for such a
recommendation should be provided to the complainant in writing.
Moreover, any instance of alleged violence
or threatened violence
between employees ought to be the subject of a formal disciplinary
enquiry in which all those allegedly
participating should be
charged.
In order to try and
curb racial hostility at the employer's residential premises at the
station, the employer might also examine
the conditions under which
employees are entitled to occupy residential accommodation and the
conduct which is expected of tenants
and their co-habitants.
However, as it is unclear to what extent conditions governing the
tenancy of emergency fire personnel
are set out in the resident
employees’ contracts of employment as opposed to being set out
in separate lease agreements,
there is an insufficient factual basis
for the court to issue any binding directive in this regard.
Costs
The applicant’s
grievances should have been addressed with greater seriousness and
purpose by the employer. It should not
have been necessary for the
applicant to bring this matter to court in order to achieve a
resolution of the dispute. If the respondent
accepted it had no
defence for its inaction to place before the court, it ought to have
tried to settle the matter with the applicant.
In the circumstances,
he has been compelled to incur unnecessary legal costs and
notwithstanding the ongoing relationship between
him and his
employer I see no reason why he should be prejudiced in this regard.
Order
In summary, I find
that the respondent unfairly discriminated against the applicant in
failing to take adequate steps to prevent
him being subjected to
racial harassment by certain colleagues who were also accommodated
in residential premises at the fire
station. The employer also
unfairly discriminated against him when it only took disciplinary
measures against him for fighting
with other employees but failed to
charge his white colleagues who were also involved.
Accordingly, an
order is made in the following terms:
The respondent is
ordered, within 14 days of the date of this judgment, -
to pay the
applicant an amount of two month’s salary at his current
rate of earnings for failing to take necessary and
reasonably
practicable steps to prevent the applicant being subjected to
racial harassment by colleagues in 2006 and 2007,
and
to pay the
applicant one month’s salary at his current rate of earnings
for unfairly discriminating against him in taking
disciplinary
action against him alone, without charging the white complainants,
arising from a fight between the applicant
and other employees
which occurred in January 2007.
The respondent is
further directed –
to review all
currently vacant posts for which the applicant is qualified, to
which he might be transferred on the same or
equivalent
remuneration package to that which he presently receives, and to
offer him an opportunity to apply for such posts;
to investigate
any new complaint of alleged racial harassment involving its
employees arising at its premises at Brixton Fire
Station and to
initiate disciplinary action against any alleged perpetrator if
justified, provided that if no disciplinary
enquiry is initiated
the employer must provide the complainant with written reasons for
not doing so, and
in the event of
any alleged violence occurring between employees at its premises
at Brixton fire station, to institute disciplinary
proceedings
against all those who are alleged to have taken part in the
violence.
The respondent
must pay the applicant’s costs on an attorney and own client
scale.
In the event that
the parties cannot agree on the applicant’s current rate of
earnings, any party may refer the matter
back to this court for
determination.
ROBERT LAGRANGE
JUDGE OF THE
LABOUR COURT
Date of hearing : 24
February 2010
Date of judgment: 10
February 2011
Appearances:
For the Applicant: G
Wilks instructed by Bezuidenhout Van Zyl Attorneys
Unopposed
1
See
Hoescht
(Pty) Ltd v Chemical Workers Industrial Union
(1993) 14
ILJ
1449 (LAC)
at 1459B-I
and the cases cited thereat. See also
Mould
v Roopa NO & Others
(2002)
23
ILJ
2076 (LC)
at
2087, par [49], and
National
Education Health & Allied Workers Union obo Barnes v Department
of Foreign Affairs
(2001)
22
ILJ
1292
(BCA)