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[2011] ZALCJHB 79
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Standerton Mills (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR749/10) [2011] ZALCJHB 79; [2012] 1 BLLR 84 (LC); (2012) 33 ILJ 485 (LC) (31 August 2011)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG
Case no: JR749/10
Reportable
In the matter between:
STANDERTON MILLS (PTY)
LTD
…..................................................................
Applicant
and
THE COMMISSION FOR
CONCILIATION,
MEDIATION AND ARBITRATION
…......................................................
First
Respondent
MTUTUZELI NGQELENI N.O
….......................................................
Second
Respondent
SACTWU O.B.O MKHONDOANE,
VINCENT
…...............................................
Employee
JUDGMENT
BHOOLA J:
Introduction
[1] This is an
application in terms of section 145 of the Labour Relations Act, 66
of 1995 (“the Act”), to review and
set aside the
arbitration award dated 23 February 2010 of the second respondent
(“the commissioner”) issued under case
number MP5710-10.
The application is opposed by the employee.
Background facts
[2] The employee Vincent
Mkhondoane was a Shift Supervisor employed by the applicant and was
dismissed on 12 August 2009 following
a disciplinary enquiry in which
he was charged with sexual harassment and abuse of power. The charges
emanated from complaints
made by an employee, Jessie Twala, about his
conduct. He referred a dispute concerning his alleged unfair
dismissal to the first
respondent. Following an arbitration the
commissioner found that his dismissal was substantively and
procedurally unfair and ordered
his retrospective reinstatement.
Grounds of review
[3] The applicant submits
that the commissioner committed gross misconduct in relation to his
duties, alternatively committed a
gross irregularity. It submits
further alternatively that the award is not reasonably justifiable
having regard to the material
before him and is therefore not one
that a reasonable arbitrator could have reached in the circumstances.
[4] In amplification of
the grounds of review the applicant submits that the commissioner
committed material errors of law in that
he:
Failed to make an
appropriate assessment of all the evidentiary material placed before
him, and particularly that the employee
at no stage contested the
telephone number from which the messages were sent to Hadebe, but
only denied that he was the sender;
Ought to have found that
the SMS messages corroborated the version of Hadebe and were
inappropriate when addressed to someone
which it was common cause he
was not in a relationship with;
Ought to have found that
the evidence of Twala and Hadebe corroborated the version of the
applicant and, weighed together, should
have been sufficient to
constitute proof on a balance of probabilities;
Failed to appreciate
that not to discipline someone who reports to you for absenteeism in
return for sexual favours clearly constitutes
an abuse of power even
if it could also constitute a dereliction of duty since in the
context of sexual harassment a charge of
abuse of power was more
appropriate;
Failed to attach any
weight to the fact that the employee had previously been charged
with sexual harassment. This in itself should
have swayed the
probabilities in favour of the applicant;
Placed undue reliance on
the fact that the disciplinary enquiry chairperson signed the notice
of suspension and conveyed the initial
charges to the employee. Such
conduct does not in itself suggest a lack of impartiality and does
not indicate that the employee
was denied a fair trial;
Failed to take into
account that evidence was led at the internal disciplinary enquiry
which indicated that the video footage
did not show the incident
complained of.
[5] The applicant submits
that the commissioner was grossly negligent in performing his duties
and failed to apply his mind, alternatively
exceeded his powers, in
that he
inter alia
;
(a) failed to make a
proper evaluation of the evidence placed before him, particularly in
respect of the SMS messages which emanated
from the employee’s
phone.
(b)misinterpreted Twala’s
evidence and wrongly criticised her for giving contradictory
evidence. Her evidence remained the
same both in the internal
disciplinary enquiry and the arbitration in that she testified that
on 24 March 2009 the employee came
to her home to persuade her to
return to work and not to propose love to her as found by the
commissioner. Also, he mistakenly
found that Twala was not at work on
the day she alleged the employee touched her buttocks, namely 22 June
2009, when at all times
it was clear that she had been at work on
that day;
(c)placed undue reliance
on the role of the disciplinary chairperson in issuing the notice of
suspension and the charges against
the employee in concluding that
there had been procedural unfairness;
(d) failed to place
appropriate reliance on the uncontested evidence that the employee
had previously been charged with sexual harassment,
when this should
have been relevant to the weighing of probabilities.
[6]
The commissioner made an award that is not rationally justifiable
having regard to the material properly available at the hearing
of
the matter in that he :
Disregarded
material evidence and failed to consider the evidence of the
applicant in its totality;
Failed
to consider and find corroboration in the applicant’s version
given that two women independent of each other raised
the same
complaint against the employee;
Failed
to consider and find corroboration for the applicant’s version
in the SMS messages sent by the employee to Hadebe,
and the fact
that he had previously been charged with the same offence;
[7]
The commissioner, in the weighing up of probabilities, inherent or
otherwise, disregarded or failed to place the appropriate
weight on
the following factors:
that
two women independent of each other raised the same complaint
against the employee;
the
SMS messages sent by the employee to Hadebe;
the
fact that he had previously been charged for sexual harassment.
The review standard
[8] It is by now trite
that the test to be applied in assessing the arbitrator's award is
whether the decision reached by the commissioner
was one which no
reasonable decision maker could reach :
Sidumo
& Another v Rustenburg Platinum Mines Ltd
&
others
(
2007) 28 ILJ 2405 (CC).
The Constitutional Court has confirmed that a commissioner is
required to apply his or her mind to the issues
properly before her,
and that failure to do so will result in an arbitration award being
set aside :
Commercial
Workers Union of SA v Tao Ying Metal Industries & others (
2008)
29 ILJ 2461 (CC) at 2485-2486.
[9] In order to succeed
in a review the applicant must establish that the award was one that
could not have been made by a reasonable
decision maker:
Sidumo
supra
at [110]. An outcome
may be reasonable if there are other reasons besides those advanced
by the decision maker that support it.
These reasons may be evident
from the material before the decision maker and may not always be
expressly stated in the award. There
is no reason why an arbitration
award should be found to be unreasonable simply because the
commissioner failed to identify good
reasons that could have been
used to justify the decision :
Fidelity
Cash Management Service v CCMA & others
(2008)
29 ILJ 964 (LAC) at [102]-[103]. Indeed, it is clear from
Fidelity
Cash
that the
Sidumo
test is a stringent one
that will ensure that arbitration awards are not easily interfered
with. This serves the primary objective
of the Act which is the
“
effective resolution
of labour disputes”
.
It is, accordingly, contemplated that awards issued out of the CCMA
should not be “
lightly
interfered with”
and
will
,
subject
to the requirement of reasonableness, be final and binding:
Fidelity
Cash supra
at [100];
Shoprite Checkers (Pty) Ltd
v Ramdaw NO & others
(2001)
22 ILJ 1603 (LAC) at 1636H-I and
NUM
& another v CCMA and others
(2008)
29 ILJ (LC) 378 at [29]. The applicant must show that the outcome
falls outside the parameters of what is reasonable:
Edcon
Ltd v
Pillemer NO &
others
(2008) 29 ILJ 614
(LAC) at [21];
NUM supra
at [28] and
Ellerine
Holdings Ltd v CCMA & others
(2008)
29 ILJ 2899 (LAC) at 2905-2906. A review application does not afford
the applicant another opportunity to argue its case
afresh in the
hope of a more favourable outcome.
Evaluation
Findings re Twala’s
evidence
[10] The commissioner
found Twala’s testimony to be unreliable as she contradicted
herself in numerous respects and was unable
to explain these
contradictions. She testified that the employee touched her on the
buttocks on 22 June but she had been charged
for desertion for her
absence from work from 22 to 27 June. She also testified that the
employee visited her at her home to propose
love to her, but at the
disciplinary hearing she had testified that he in fact came to
persuade her to go back to work.
[11]
Mr Zondo submitted on behalf of the third respondent that the
commissioner was justified in treating Twala’s evidence
with
caution and is in the best position to make findings in regard to her
credibility. He submitted that the fact that Twala raised
the
allegations of sexual harassment for the first time in her
disciplinary enquiry for desertion on 1 July 2009 is significant
in
that she was on a final warning and knew that a finding of guilty
would have led to her dismissal. Furthermore, although she
claimed
that the harassment began in 2005, and that the reason for her
absence from work was that she was “intimidated and
abused”
by him, she was only able to cite one incident. When asked to explain
the intimidation and abuse she said “the
reason I say that is
because on 22/06/2009 at 09h00, Vincent Mkondoane came to me, touched
my bum and passed me, saying that he
is the one that will laugh last
in the company. I was embarrassed because he is my superior and very
much younger than me”.
In these circumstances Mr Zondo
submitted that her allegations were an afterthought to shield her
from dismissal, and that the
commissioner applied his mind reasonably
and fairly to the evidence when he rejected her version.
[12]
The commissioner’s finding in regard to the second
contradiction is not unreasonable. Twala’s evidence at the
disciplinary enquiry was that the employee had visited her at home on
24 March and 25 March 2009 to tell her to return to work.
However, at
the arbitration she testified that “[h]e came to telling (sic)
me that he loves me and if I can sleep with him
he cannot open a case
against me”. Despite being pressed by the commissioner and the
employee’s representative, she
was unable to explain this
contradiction. Nor was she able to explain why the evidence that the
employee “used to come to
me during lunch time around 02:00pm
asking me if we can [go] to the storeroom and sleep there and I
disagreed with him” only
emerged for the first time in
re-examination. The employee’s representative objected to this
evidence, which had not been
raised at the employee’s
disciplinary enquiry by Twala, nor during her evidence in chief or
cross-examination in the arbitration.
[13] The abuse of power
charge related to the averment that the employee had abused his
authority as Shift Supervisor in order to
obtain sexual favours from
his subordinates, but the commissioner found that this should more
appropriately have been a charge
of dereliction of duty because the
demand for sexual favours had not been proven. He found that although
Twala testified that the
employee suggested that if she slept with
him she would not be charged for her absence from 11 to 24 March
2009, and although she
refused she was not charged. He however
accepted the employee’s version that he had charged her and
that she had been counselled
by Mathews Thabethe, her section
supervisor.
[14]
The evidence of Twala in relation to the charge of abuse of power was
as follows:
“
MR
MOLOI
:
The question is why she was not charged, because she says she
normally must be charged. But she was not charged for 13 days so
we
want to know why.
ANSWER
NOT INTERPRETED
MR
MOLOI
: And what was your reaction to that?
MS
TWALA
: I told him that I cannot sleep with you because I am not
in love with you”
She
later explains that she gave this answer to what the employee said
when he visited her at home. It was put to her that this
contradicted
her version at the disciplinary enquiry, and she denied this and
explained that there were two visits and he was alone
on the second
visit when he suggested that nothing would happen if she slept with
him. It was then put to her that in the disciplinary
enquiry this was
not her version because she testified that “
when I was at
work
he informed me that nothing would happen to me as I know
what he wants”.
[15]
When Twala was asked at her disciplinary hearing who she had reported
the alleged harassment to, she replied that she had told
a colleague,
Gladys Thanjekwayo. In response to a question why she did not report
the matter to human resources she said that she
believed that the
employee wielded some authority over them and determined which
charges were prosecuted. She believed that “Mkondoane
always
says the HR department only hears him”, because in all the
charges laid against her she had been found guilty. This
version is
improbable since there was no evidence that as a supervisor he
exercised such inordinate power. Furthermore, the fact
that the
employee was charged with sexual harassment immediately after Twala
made the allegations against him negates her version
entirely.
[16]
At the employee’s disciplinary enquiry she testified that she
had reported the incident to Thanjekwayo as well as Jabu
Molefe,
although in cross examination she only mentioned Molefe and not
Thanjekwayo. At the arbitration she said that she reported
the
incident to Molefe. Thanjekwayo was not called to testify at the
arbitration, only at the employee’s disciplinary hearing
and
accordingly Twala’s version on this issue should have been (and
was) properly rejected by the arbitrator. Mr Zondo submitted
that the
failure to call Thanjekwayo at the arbitration to prove that she
witnessed the harassment incident is fatal.
[17]
The applicant’s representative Mr Pretorius, submitted that the
contradictions are more apparent than real. Twala said
she
confided
in Gladys and
reported
the matter to Jabu. This should have
been seen as simply the manner in which she spoke and there was no
discrepancy. Even in regard
to the visits to her home her evidence
confirms there were two visits and this is what was put to her. Her
evidence was therefore
not inconsistent. Furthermore in regard to the
fact that she gave evidence in re-examination when she should have
given that in
chief – she was simply responding to a question
put to her in re-examination about the incident at lunchtime. It
places too
high on onus on her if the evidence construed together is
understood to mean that she said what she did in re-examination as an
afterthought, and in making this finding the arbitrator misconstrued
the evidence.
[18]
The adverse credibility findings against Twala appear to have been
justified and reasonable given that her evidence was contradictory
on
a number of material aspects. Credibility issues are indeed difficult
to determine in motion proceedings such as these. The
commissioner is
undoubtedly in a better position to make a finding on this issue. In
Moodley v Illovo Gledhow & others
(2004) 25 ILJ 1462 (LC)
at 1468 C-D Ntsebeza AJ observed in this regard as follows :“Sitting
as I do as a review judge, I
fail to understand, in this case, how I
could decide to set aside an award given by an arbitrator who sat at
the hearing, observed
the witnesses, their demeanour and the manner
in which they came across. I cannot see that I can interfere merely
on an assessment
of whether she misdirected herself by reason of the
fact that she considered whether the witnesses were credible before
determining
what the probabilities were in the light of their
testimonies…I should be extremely reluctant to upset the
findings of the
arbitrator unless I am persuaded that her approach to
the evidence, and her assessment thereof, was so glaringly out of
kilter
with her functions as an arbitrator that her findings can only
be considered to be so grossly irregular as to warrant interference
from this court”.
Findings
re Hadebe’s evidence
[19] The commissioner was
unable to determine the allegations of indecent exposure made by
Hadebe because he was faced with her
word against that of the
employee without “any inherent probabilities favouring either
of the versions”. Although he
was not required to even
determine the evidence of Hadebe or the SMS evidence, he did make
findings and specifically discounted
the evidence of Hadebe that she
had received inappropriate SMS messages from the employee and had
forwarded them to Jabu Molefe.
He found that perusal of the print-out
of the SMS messages shows that they were received from +27769267615
but did not show to
which number they were sent to. He found that no
evidence was led that this was the employee’s cell phone
number.
[20]
The applicant’s case in the arbitration was based to a large
extent on the SMS messages. The employee denied that he
had sent any
messages to Hadebe, although Mr Pretorius submitted that his cryptic
remark to the effect that “I still wonder
why” when it
was put to him that his number appeared on Hadebe’s phone
should have been understood as an admission.
Hadebe however failed to
produce her cell phone, to which the SMS messages had allegedly been
sent. Her explanation that she had
“forgotten it at home and
..was not aware that we were going to sit for the hearing”, was
highly improbable. She failed
to use the opportunity to produce the
phone despite the fact that she lived two minutes away. The next day
she again failed to
bring her phone to the hearing. Although it would
appear that the messages were sent from his phone, the applicant fell
short of
proving that the recipient was Hadebe. It was therefore not
possible to establish whether the SMS messages were sent to Hadebe or
even forwarded by her to Molefe’s phone. Apart from the missing
phone, the SMS messages were not authenticated at all. In
any event
even if the evidence related to the phone messages had been accepted
they seem to suggest that on the probabilities there
had been a
relationship between Hadebe and the employee and which had ended. In
the context of this evidence it is reasonable for
the commissioner to
have been unable to make a conclusive finding on the probabilities.
[21]
Hadebe was called as Twala’s main witness but then made her own
allegations of sexual harassment against the employee.
In her
evidence at the arbitration she testified about being touched on the
buttocks, about indecent exposure and SMS messages
from the employee.
However the employee had not been charged with any of these offences
and this was the first time this evidence
emerged. Hadebe moreover
appeared to have held a grudge against the employee for having
orchestrated her mother’s dismissal
from the employ of the
applicant. She refused to comment when it was put to her that the
reason for her levelling the harassment
allegations against him was
that he had terminated his sexual relationship with her sister. This
implies that she had an improper
motive and the commissioner appears
to have had regard to this in reaching his conclusion.
[22] In regard to
procedural fairness the commissioner found that the disciplinary
enquiry chairperson had played a significant
role in the matter prior
to chairing the disciplinary enquiry, and that his failure to allow
viewing of video footage placed a
question mark over his objectivity
in this role. This rendered his dismissal procedurally unfair.
The
commissioner cannot be faulted for this finding given that it is a
fundamental tenet of natural justice that there should be
no bias or
perception of bias. However he appears to have disregarded the
evidence led at the disciplinary enquiry that the video
footage did
not record the incident. This in itself would however not justify the
review. In playing the role he did the chairperson
was both player
and referee and this, Mr Zondo submitted, cannot be countenanced in
the context of procedural fairness requirements.
[23]
The last issue is the question of whether the applicant was denied a
fair trial given that the arbitrator failed to direct
the parties in
the conduct of the proceedings and in respect of proving material
aspects of their case.
In supplementary heads of
argument the applicant sought to raise a new ground of review based
on the failure of the commissioner
to assist the parties in regard to
technical legal issues such as the leading of evidence, proof of
documents and problems of cross-examination.
The applicant cited a
number of authorities applicable to the conduct of proceedings
involving laypersons. However I do not consider
these to be of
relevance given that Moloi, the Human Resources officer of the
applicant cannot be said to have been in the position
of a layperson
unfamiliar with arbitration proceedings.
He
simply failed to lead the evidence necessary to meet the evidentiary
burden on a balance of probabilities, and the commissioner
cannot be
faulted for this.
[24]
In these circumstances the applicant has not succeeded in
establishing that the commissioner
committed gross
misconduct in relation to his duties, alternatively committed any
gross irregularity, either by failing to apply
his mind properly to
determining the issues before him or otherwise. Nor can it be said
that he failed to take material facts into
account in weighing the
probabilities. For these reasons the review stands to be dismissed
and there is no reason in law or fairness
why costs should not follow
the cause.
[25]
Therefore, I make the following order :
The
review is dismissed with costs.
_____________
Bhoola J
Judge of the Labour Court
of South Africa
Date of hearing: 23
August 2011
Date of judgment: 31
August 2011
Appearance:
For the Applicant: Mr D
Pretorius from Fluxmans Inc
For the Employee:
Advocate Zondo instructed by Cheadle Thompson & Haysom Inc.
11