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[2011] ZALCD 7
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South African Post Office Ltd v Commission for Conciliation Mediation and Arbitration and Others (D 407/10) [2011] ZALCD 7 (15 November 2011)
35
REPUBLIC OF SOUTH AFRICA
Reportable
Of interest to others judges
THE LABOUR COURT OF
SOUTH AFRICA, DURBAN
JUDGMENT
Case
no. D 407/10
In the matter between:
SOUTH AFRICAN POST OFFICE LIMITED
….....................................................
Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
….............................................................................
First
Respondent
ALMEIRO DEYZEL N.O
…..................................................................
Second
Respondent
FREDDY PILLAY
…................................................................................
Third
Respondent
Heard
: 23 August 2011
Delivered: 15 November 2011
Summary
: Application to review
and set aside an award. Commissioner improperly suggesting to
employee that he was unaware that he had a
touchy mannerism when not
supported by the evidence. Commissioner concluding that the employee
had a touchy mannerism and was unaware
of his actions and therefore
did not have the requisite intention to commit sexual harassment.
Award set aside and substituted
with an award that the employee had
comitted sexual harassment and employee dismissed.
______________________________________________________________________
JUDGMENT
REDDY AJ
Introduction
[1] This is an application in terms of
section 145 of the Labour Relations Act 1995 (the LRA) to review and
set aside an arbitration
award dated 6 May 2010 under case number
KNDB 9796/10 handed down under the auspices of the Commission for
Conciliation Mediation
and Arbitration (“the commission”).
The applicant (“the employer”) seeks to have the award
set aside and
substituted with an award that the dismissal of the
third respondent (“the employee”) was substantively fair.
[2] The application is opposed by the
employee.
Factual background
[4] The employee was employed as a
production engineer at its Durmail operation in Durban.
[5] The employee was charged with
‘
Gross
misconduct in that during the period 2003 to 2008 you abused your
position and powers assigned to you by-
sexually
harassing Noelene Behrmann and Denise Jones,
misappropriation
of Company resources.’
[6] The employee was dismissed on 24
August 2009 on the charge of sexual harassment after an internal
hearing was held. He was given
a final written warning for the
misappropriation charge.
[7] He challenged the substantive
fairness of the dismissal at the CCMA and an arbitration hearing was
duly held on 22 and 23 April
2010.
[8] The commissioner found the
dismissal to be substantively unfair and reinstated the employee with
retrospective effect to 25
August 2009. The backpay portion of the
award is in the sum of R 311 314.22 less lawful deductions.
[9] The two complainants, Denise Jones
(Jones) and Noelene Behrmann (Behrmann) were employed at Witspos Mail
Centre (in Witwatersrand)
and Durmail (in Durban) respectively. Jones
was, like the employee, a production engineer. Behrmann was a data
controller and reported
to the employee. At the time of the alleged
harassment both complainants reported to the employee. Behrmann at
all relevant times
remained a junior employee (at the lowest rank of
employee). There were several levels between Behrmann’s post
and the employee’s
post.
[10] On 4 September 2008, Behrmann was
questioned by investigators in respect of
inter alia
,
allegations of sexual harassment. She informed the investigators of
allegations of harassment at the hands of the employee. Her
version
was recorded in writing. Subsequently and on 8 September 2008, the
employee received a notice of suspension pending a disciplinary
investigation. The suspension was effective from 4 September 2008.
The suspension did not initially refer to allegations of sexual
harassment.
[11] On 19 March 2009, Jones recorded
a statement alleging sexual harassment at the hands of the employee.
Jones
[12] Jones testified that she was
touched by the employee on three different occasions and a total of
four times.
[13] She had begun working with the
employee when she was the acting production engineer. She was
appointed as a production engineer
in December 2003. She and the
employee were on the same level but he had more experience than her
and to her mind he was her senior.
She, like the other engineers,
consulted with him quite often and asked his direction on issues.
[14] Jones was on the hub
rationalisation team with the employee - the purpose of which was to
take work away from some mail centres
and move them to other centres.
After one such meeting of the rationalisation committee, the
committee went to lunch. The employee
sat next to Jones at the lunch
table. He placed his hand on her leg above the knee and rubbed it in
an upward direction to the
mid thigh. His hand was underneath the
table cloth which hung quite low over the table which prevented
anyone else from seeing
these movements.
[15] Jones’ immediate reaction
was to move away from his hand. She couldn’t move far because
someone was sitting on
her left hand side. She was very uncomfortable
with the employee’s actions. After lunch, she confided in a
senior manager
without disclosing the employee’s identity and
asked his advice. He said that she could lay charges of sexual
harassment
but she had to be sure that it was not an accident on the
part of the employee. At that time, she did not know the employee
well
enough to determine from that one incident whether he intended
the action to be sexual in nature or whether that action was part
of
an expressive nature he may have ( in her words ‘in line with
his personality’). Due to this lack of knowledge she
decided
not to report it as she did not want to look like a fool.
[16] This first incident occurred just
before her appointment in December 2003 – between June and
December 2003, when she
was still an acting production engineer.
[17] When asked if she believed the
touching was accidental, she said that, whilst she was initially
unsure, she later realised
that it could not have been accidental as
he moved his hand upward from her knee to her mid-thigh. She reasoned
that if his hand
was motionless then perhaps it could have been
accidental. She further reasoned that the table cloth was used to
conceal his actions.
[18] The second occasion was also a
social function – a supper at a restaurant, although she was
not entirely sure but the
supper could have been in Cape Town.
[19] On this occasion, the first
incident occurred during supper and the second incident after supper.
The same procedure was used:
the employee placed his hand on her
thigh and rubbed it in an upward direction half way up her thigh.
[20] She did not react to the first
incident during supper – she just sat there and pretended it
did not happen. She knew
then that the employee’s conduct was
intentional and not friendliness on his part. She said in her
testimony:
‘
I
did not like it, it made me uncomfortable, I decided then I was going
to do something about it…..I have to have a good
relationship,
I decided that I am not going to make a big scene about it, I’ll
do something myself.’
[21] She then spoke to two other male
engineers about the incident and asked that in future they sit on
either side of her. They
initially thought it was a joke, but
‘
after
supper, we moved closer and we started chatting when Mr Pillay
touched my leg again in the same manner, and then after that
the
guys, I explained to the guys I’m serious, this is serious now.
And then it never happened again because the gentlemen
always saw
that they were next to me or with me, so there was never an
opportunity for that situation to arise again.’
[22] The third occasion when he
touched her was during a workshop where he sat on her right facing
her and he placed his left hand
on her back and his right hand above
her knee. He addressed the other colleagues whilst doing this to her.
They were talking business
whilst this happened. In response to a
question from the commissioner as to whether this touching was sexual
in motive she replied:
‘
I
do not know if it was with a sexual motive but because of the
previous occasions I felt uncomfortable.’
[23] At the two social meals he drank
red wine but she was not sure how much.
[24] She did not encourage him in any
way to touch her on any of the three occasions.
[25] The latter three incidents when
he touched her occurred after she was the production engineer perhaps
around March or June
2004 when the three-monthly engineering meetings
would take place.
[26] During the disciplinary hearing,
the employee submitted that he was being charged with sexual
harassment because other engineers
or senior engineers wanted to get
rid of him. He submitted that he was a victim of a conspiracy and
that there was no sexual harassment
by him. This issue was not put to
Jones during the disciplinary hearing. At the arbitration hearing,
this issue was put to her
by the employer’s representative. She
replied that she was not aware of any agenda or conspiracy against
the employee by
the other engineers or senior engineers.
[27] The commissioner asked a further
question in respect of the employee’s personality:
‘
Commissioner:
“Was the employee’s personality such that he was one of
those people who touched people whilst talking
to them? What kind of
personality did the employee have?”
Jones:
“Ja Fred was a very friendly person. I never expected it and
that is still why, I suppose I didn’t really make
a scene. Fred
.speaks with gestures and he would just touch you to say “Listen
to me I am talking to you.”
Commissioner:
“You mean touching your hand?”
Jones:
“Ja.. that’s nothing – it is acceptable.”
Commissioner:
“So he is the kind of person who expresses himself with his
hands and would on occasion while talking to you
touch you on the
hand?”
Jones:
“Yes, but that’s open and short term.”’
[28] Apart from greater clarity in her
evidence at the arbitration hearing, Jones’ evidence during the
arbitration hearing
was largely consistent with the evidence she gave
at the disciplinary hearing. In sum, her evidence was that she was
touched by
the employee several times. She initially did not know
what to think of it. She was not sure if she was overreacting to a
friendly
gesture. She erred on the side of caution and therefore took
not further step after the first incident. After the second incident
she realised that the employee’s actions were not friendly and
innocuous. In any event if they were, she was not comfortable
with
them. She was advised in passing by the human resources manager that
she was being sexually harassed. She was not aware of
the sexual
policy and its protections available to her, however rather than
attract attention to the situation by lodging a harassment
grievance
against the employee, she dealt with the matter intelligently and
discreetly by ensuring that the opportunity for him
to touch her did
not occur after the third incident. In so doing, she avoided
embarrassment to herself and to the employee. Whilst
she may have
applied for his post in Durban, her evidence was not tainted by any
zeal to get rid of him so that she could obtain
his post.
It was put to her in cross-examination
that if she were uncomfortable with the employee touching her she
should have said to the
employee: ‘Please do not do that.
Fred.’
She replied that it was embarassing
and uncomfortable to do so.
It was also put to Jones during
cross-examination that it would be difficult for the employee to
remember if he placed his hand
on her thigh in 2004.
Behrmann
[29] Behrmann worked with the employee
for the last eight to ten years. She reported to him as her senior.
[30] She worked in an open plan office
with her colleagues and the employee worked in his office which was
partitioned off the open
plan office. In her office, the desks were
arranged around partitioning which if she and her colleagues were
seated, they would
not be able to see what is happening at each
other’s desks.
[31] The touching started with him
touching her hand and shoulder – which she thought nothing of.
The touching escalated to
inappropriate touching which she took
offence to.
[32] The touching occurred on numerous
occasions and at her desk or in his office. The exact dates of the
touching were not clear
but Behrmann could link certain touching
incidents to events and thereby ascertain some of the dates when the
touching occurred.
[33] She had discussed the touching
with her shop steward, Lionel Munsami (Munsami), who being male
thought it better if she discussed
the matter with a woman. He
referred her to Phoebe Naude (Naude), a senior administrative
officer. Both Munsami and Naude confirmed
in writing that she had
discussed the touching with them. They did not advise her to report
the matter to senior management.
[34] She could not recollect the
precise dates of all the incidents but they happened quite often. It
got to the stage that when
she had to hand in reports, she would wait
until he left his office to place the reports on his desk rather than
hand them to him
and face being touched inappropriately.
[35] She did not report the matter to
the employee’s superiors because she was afraid that of
victimisation in the event of
them covering up the matter.
[36] She had not written the entire
statement herself as she had difficulty describing the details of the
incidents. The written
statement was recorded from questions she
answered when asked by the two investigators. The statement was typed
by one of the investigators
from the answers she gave to the
questions they asked her. She did feel uncomfortable describing the
touching to the two investigators
who were male.
Her evidence of the various types of
touching is set out hereunder.
In the employee’s office
[37] She explained that if she went
into his office with other colleagues, he would not call her to his
side of the desk. She would
remain with the colleague on the other
side of the desk. If, however, she went in alone, he would call her
to his side of the desk
to show her something on his computer which
was at right angles to him and on his left side. She would be
standing to his right
hand side and bending to look at his computer
screen. Whilst she was on this side of the desk he would make much of
swivelling
on his chair between his computer screen and her and in
the process touch her on her body. She would be bending down to look
at
his computer screen when this happened. He would touch her on her
hip, her thigh and her pelvic area.
[38] On one occasion she remembered
that, in early 2008, she had applied for leave at year end to go to
London. He invited her into
his office to show her on his computer
screen sites of London and suggested various places to visit. She
stood to his right with
the left hand side of her body closest to
him. In so doing, she said,
‘
He
would touch me with his hand…Touch me on my hip and leg. He
would swivel between his screen and you. I would keep pulling
back.
.. he would touch me in the top part of my pants – he would put
his hand in like that.
’
[39] Behrmann went on to describe the
manner in which the employee placed his fingers inside her jeans and
just past her underwear.
She pulled back immediately.
[40] She did not accept that any of
the touching was mistaken or erroneous as he never apologised and he
repeatedly touched her.
She never encouraged him to touch her
inappropriately.
[41] If he touched her on the hip
whilst she was bending to look closer at his computer screen she
would pull back and straighten
up.
[42] The evidence of his hand down her
pants was not raised by her until the arbitration hearing. It was put
to her during cross-examination
that this was not recorded in her
written statement or in her evidence at the disciplinary hearing. She
replied that her testimony
that he touched her on the seam line /
waist area was broad enough to cover this issue. She referred to her
first language being
Afrikaans and during cross-examination was asked
to translate the English statement into Afrikaans. She then referred
to the ‘
maag
’ which means stomach and proceeded
during further cross-examination to use the words stomach, waist and
hip interchangeably
to describe the area the employee touched.
[43] On being questioned by the
commissioner on this issue, she explained that the seam line area was
either the left side of the
top end of her pants or the zip area in
front.
[44] At the disciplinary hearing, she
referred to the hipster seam line area. Paragraph 3 of written
statement refers to ‘on
my waist near my private area.’
The J88 form shows two crosses on the front pelvic area – which
could be near or below
the panty line. The J88 form was not placed in
dispute. She referred to the J88 form in both hearings.
[45] The incident of the employee’s
hand in her pants was not contained in her written statement
(although she testified that
she did inform the two investigators
about it as she marked the area the employee touched with crosses on
a J88 diagrammatic form).
She did not raise it during the
disciplinary hearing. Although she had discussed the matter with
Munsami and Naude she did not
tell them explicit details of the
touching and she had not described to them the incident of the
employee’s hand in her pants.
Breasts
[46] She also testified that when she
sat at her desk he would approach her from behind on her left hand
side and hold her left
upper arm with his right hand and press his
fingers towards her breast in such a way that the outside of his
fingers would be touching
the side of her breast. The greatest amount
of pressure from his hand would be on her breast. She would move her
chair back if
she was sitting or pull back from him if she was
standing. He would do this while giving her instructions – it
was never
done playfully. Again she did not accept that this was
mistakenly done by him as he never apologised to her and he kept
doing it.
[47] During cross-examination, it was
put to her that the employee would not deliberately touch her in the
open plan office in the
presence of other workers as they would see
what he was doing. It emerged that if she sat down her colleagues
would not see what
is happening to her as there were partitions in
front and to her right and a three/four drawer filing cabinet to her
left. Her
colleague to her left sat approximately two to three metres
away from her would not be able to see what was happening to her as
the filing cabinet blocked his view. Her colleagues on the side of
the partitions at her desk also would not be able to see what
was
happening.
[48] Questions from the commissioner
were put to her regarding her evidence in the disciplinary hearing of
being touched on her
breasts. She explained that this type of
touching would occur when she would be standing at his desk and he
would move past her,
for example as if to pour water to drink. The
water decanter and his glass were both on his desk and he would have
to pass Behrmann
to get to the water. He would walk past her in such
a way that he was close enough for his elbow to brush against her
breasts.
Other women
[49] She testified that she saw him
touching other women on their hands and shoulders in the open plan
office. She did not see them
being touched in his office but assumed
from the squeaking of the wheels on his chair that he was touching
them as he touched her
by swivelling between his screen and them. She
heard the same squeaking sound of the wheels as when he touched her
in his office.
She conceded during cross-examination that her
speculations could be incorrect as no other woman came forward from
her office to
allege that she had been inappropriately touched.
The swing
[50] At a year end function at Umbilo
park, Behrmann had recorded in her written statement that the
employee had invited female
colleagues to sit on his lap whilst he
sat on the swing. She conceded during the arbitration hearing that
she did not see him inviting
women to sit on his lap, she had assumed
that he invited them. She conceded that the women sat on his lap of
their own accord.
She was encouraged to sit on his lap by another
female worker but she did not go as it was not acceptable behaviour.
It was put
to her that it was a game – which she denied. To her
it was still a work function and she was not brought up to sit on her
manager’s lap. No alcohol was consumed at the park.
[51] The employee submitted during the
disciplinary hearing that she was fabricating all the allegations.
This was not put to her
in the disciplinary hearing. At the
arbitration hearing, the issue was put to her. She denied inventing
the situation. She also
denied allegations by the employee that she
was unco-operative at work and had difficulty in taking instructions
from another superior,
Mr Lembede. She clarified that she did not
like him raising his voice at her. She denied complaining bitterly
about not being promoted.
She was not vindictive towards the
employee, she just did not like him touching her.
[52] She did concede that she did not
want to share her computer with other workers. And she admitted to
falsely filling in a leave
form, for which she was not disciplined.
The employee had given her the leave she requested.
[53] She would feel uncomfortable
working with the employee again as she had testified against him. She
did not want to work with
him again. She would rather resign than
working with the employee.
[54] She regarded all the touching as
a personal invasion, the most serious of which was the placing of his
hand in her pants. She
felt there was a sexual motive behind the
touching and it did not feel right. Although he never said anything
inappropriate whilst
touching her or anything that could explain why
he was touching her in the way that he did, the touching had the
effect of making
her feel worthless and cheap.
[55] It was put to her in
cross-examination that she could have told him not to touch her. She
replied that she pulled back every
time he touched her. She did not
verbally tell him not to touch her. She explained that she was
shocked and scared and described
the experience as similar to that of
being hijacked – one can conceive of how to react in a
hijacking and all the necessary
things one can do, however it is only
being hijacked, as she was, that one realises that you actually
cannot do anything.
[56] It was further put to her that
the employee did not know that he was doing anything wrong and that
had she verbalised her revulsion
it perhaps could have stopped. Her
answer was that the employee as manager, out to know the sexual
harassment policy and should
have complied with it.
[57] She did not know the policy and
did not have access to the detailed version. She did get herself a
copy of the policy.
[58] She conceded that the employee is
a touchy person but he touched her in personal places. She responded
as follows to the question
from the commissioner:
‘
Commissioner:
“Would he do the same to other colleagues whether male or
female?”
Behrmann:
“I’ve never seen him to do it to males but in women, I
saw him, yes, but on their hand or on their shoulder.
Not too often –
not every day.”’
[59] That above response is telling of
his intention. If he’s being touchy is accepted as a mannerism
that he is not aware
of, he would touch all people he spoke to
whether male or female, and not just the females.
[60] Under cross-examination, she
testified that the last time the employee harassed her was just
before he was suspended in September
2008. She did not record this in
her written statement as she did not want to remember it.
[61] Further questions from the
commissioner revealed that she did not recall testifying at the
disciplinary hearing that that whilst
she was at her desk the
employee would touch her on her lower abdomen. She said ‘I do
not think I said that not at my pc.’
The employee
[62] During the disciplinary hearing,
the employee denied touching the complainants. He said Jones was
motivated to get rid of him
as she wanted his post in Durban.
Behrmann he said was a bad person, vindictive and difficult to work
with. Both complainants and
the two investigators had conspired
against him to get him out and he was being victimised. It would be a
‘triumph’
for them to get him, a manager, out. The
employee explained that he did not put these allegations to the
complainants during the
disciplinary hearing because it was an
oversight on his part.
[63] During the arbitration hearing,
he testified that he had a clean disciplinary record and sought
reinstatement. He said he had
a good relationship with Behrmann but
she did not like him or his management style. He did not recall
touching Jones in the manner
she described.
[64] He denied touching Behrmann on
her breasts or putting his hands down her pants. He heard the
allegation regarding his hands
down her pants for the first time in
the arbitration hearing. About touching her in his office his
evidence was ‘ I never
touched her in my office.’
[65] He also denied putting his hand
under her left upper arm and pressing against her breast.
[66] He said it may have been a
possibility that he placed his hands ‘over on her shoulder’.
He denied doing anything
that he would regard as sexual to Behrmann.
He did not speak dirty to her and he was ‘cautious’ about
the way he spoke
to his staff. He also did not make any sexual
advances to her.
[67] On the swing issue, he considered
it a game and he did not encourage anyone to sit on his lap. He made
no sexual advances on
the swing and had no intention of doing so.
[68] He stood by his version as to why
Behrmann would lie.
[69] He denied ever calling Behrmann
to his side of the desk and denied calling her to see the London
sites on his computer screen.
He testified that he downloaded the
information onto a flash drive and handed it to her. This version was
not put to Behrmann.
[70] The commissioner enquired why
would Behrmann fabricate her evidence in this regard and his response
was to describe Behrmann
as a troubled employee. He referred to an
email from Behrmann to Munsami about learners receiving greater
preference than permanent
staff. The email further recorded that
Behrmann found it hard to perform her best as a result of her being
isolated by managers.
In so referring he said:
‘
Noelene
.is not a team player, would complain about my management style, she
feels that she’s getting isolated, does not come
to speak to me
but writes an e-mail and chooses to speak to the CW rep, Lionel, Mr
Commissioner, has been in the same position
for years, for many
years.’
[71] The commissioner asked the
employee further questions about his conspiracy theory to which no
substantive answer was forthcoming.
[72] Under cross-examination, it was
put to him that the email from Behrmann does not create the necessary
motivation for her to
fabricate a sexual harassment allegation
against him. It was put to him that he was lying about her so that he
could create some
motive on her part. There was no substantive
response to this question.
[73] The following extract from the
cross-examination covers his restrained personality. It was earlier
put to him that he testified
that he was a very restrained person and
he was cautious when speaking to staff.
‘
The
employee: “Ja I am very restrained person when it comes to
touching people unnecessarily.”
Mr
Maeso: “And yet at the park year end function there was no
problem when staff members sat on your lap?”’
The
employee: “No.”
The following testimony by the
employee also confirm this
:
‘
Mr
Purdon: “Did you ever intend to do anything offensive to
Noelene?”
The
employee: “Mr Commissioner, I have never intended to do
anything of that sort to Noelene Behrmann.”
Mr
Purdon: “Did you, assuming that you are a type of person who
does touch people in the course of communication, did you
treat
Noelene and Denise in any, did you touch them in any way different to
you may have touched other female colleagues?”
The
employee: “Mr Commissioner, I wouldn’t, I have never
touched them in any way that I would touch the other females
differently, and kind of a, over touch them or keep my hands on them
as to say that I am coming on to them. I do not do that, Mr
Commissioner.”’
Grounds of review
[74] Various grounds were submitted in
support of the application to review the award, including that the
commissioner ignored relevant
evidence; failed to properly apply his
mind and that the award is not an award that a reasonable decision
maker would have arrived
at.
[75]
The
commissioner was faced with several material disputes of fact. He
was obliged to resolve
the factual dispute before him in accordance with the principles set
out in
SFW
Group Ltd and another v Martell et Cie and Others,
1
,
where the proper approach to the resolution of factual disputes was
explained by the Supreme Court of Appeal (per Nienaber JA)
in the
following terms:
‘
On
the central issue, as to what the parties actually decided, there are
two irreconcilable versions. So, too, on a number of peripheral
areas
of dispute which may have a bearing on the probabilities. The
technique generally employed by courts in resolving factual
disputes
of this nature may conveniently be summarised as follows. To come to
a conclusion on the disputed issues a court must
make findings on (a)
the credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities. As to
(a), the court’s
finding on the credibility of a particular witness will depend on its
impression about the veracity of the
witness. That in turn will
depend on a variety of subsidiary factors, not necessarily in order
of importance, such as (i) the witness’
candour and demeanour
in the witness-box, (ii) his bias, latent and blatant, (iii) internal
contradictions in his evidence, (iv)
external contradictions with
what was pleaded or put on his behalf, (v) the probability or
improbability of particular aspects
of his version, (vi) the calibre
and cogency of his performance compared to that of other witnesses
testifying about the same incident
or events. As to (b), a witness’
reliability will depend, apart from the other factors mentioned under
(a) (ii), (iv) and
(v) above, on (i) the opportunities she had to
experience or observe the event in question and (ii) the quality,
integrity and
independence of his recall thereof. As to (c), this
necessitates an analysis and evaluation of the probability or
improbability
of each party’s version on each of the disputed
issues. In the light of the assessment of (a), (b) and (c) the court
will
then, as a final step, determine whether the party burdened with
the onus of proof has succeeded in discharging it.’
2
[76] The commissioner’s function
was to ascertain the truth as to the conflicting versions before him.
He was required, in
terms of the approach set out in the
SFW
judgment, to make some attempts to assess the credibility of the
witnesses by reference to any internal and external inconsistencies
that might exist, to assess their reliability and to consider the
probability or improbability of each party’s version. (See
Isaacs v Cape Department of Education
C460/08 not reportable)
[77] The employer’s disciplinary
code defines sexual harassment as:
‘“
Behaviour
of a sexual nature, affecting the dignity of women or men at work.
Such behaviour is unacceptable if it is unwanted, unsolicited,
unreasonable and/or offensive. The conduct creates an intimidating,
hostile and humiliating situation.’
[78] The employer’s sexual
harassment policy records the objective of the policy as
‘
...to
establish a productive and pleasant working environment that is free
from sexual harassment and where mutual respect among
employees, …
is maintained’.
[79] Under the heading ‘What is
sexual harassment?’, the following relevant description is
provided in the sexual harassment
policy:
‘
Sexual
harassment is regarded as any unwanted conduct of a sexual nature.
Note
The
fact that it is unwanted conduct distinguishes sexual harassment
from behaviour that is welcome and mutual.
…
.
Sexual
harassment in short refers to purposeful and sexually-oriented
behaviour that is bound to elicit negative response from
the
recipient party, makes them feel uncomfortable and inhibits good
working relations.’
[80] The code of good practice on
sexual harassment provides further that:
‘
4
Test for Sexual Harassment
Sexual
harassment is unwelcome conduct of a sexual nature that violates the
rights of an employee and constitutes a barrier to equity
in the
workplace, taking into account all of the following factors:
4.1
whether the harassment is on the prohibited grounds of sex and/or
gender and/or sexual orientation;
4.2
whether the sexual conduct was unwelcome;
4.3
the nature and extent of the sexual conduct; and
4.4
the impact of the sexual conduct on the employee.’
[81] The employer’s disciplinary
code provides further that the offence of sexual harassment may
attract the sanction of dismissal
or a final written warning for a
first offence.
[82] The commissioner interprets the
employer’s sexual harassment policy to mean that the
perpetrator must have an intention
to carry out sexually motivated
behaviour towards the complainant and such behaviour must be
unwelcome or unwanted by the complainant.
The actions by the
perpetrator must be objectively assessed as sexual in nature and the
complainant must subjectively regard the
action as unwanted or
unwelcome. In carrying out the sexually motivated conduct, the
perpetrator must be able to foresee or know
that the unwanted conduct
is bound to elicit a negative response from the complainant.
[83] The commissioner found at
paragraph 72 of the award that it was common cause or not seriously
in dispute that the employee
did indeed touch the two complainants
and other employees on numerous occasions. He recorded that the
extent to which he touched
them was in dispute. He also recorded that
it was in dispute whether the touching was purposeful and sexually
orientated or whether
it was part of a mannerism. The commissioner
also stated that
‘
It
was specifically in dispute whether the touching was done with a
sexual intent and whether the applicant knew or foresaw that
Ms Jones
and Ms Behrmann would regard such touching as unwelcome or unwanted
and whether the touching occurred without the applicant
realizing
that it would be perceived as sexual harassment.’
[84] At paragraph 73, the commissioner
stated the following:
‘
Ms
Jones and Ms Behrmann both testified that the applicant has a
mannerism to touch people on their hands or shoulders whilst talking
to them and the applicant testified that it was part of his
personality to demonstrate with his hands whilst talking. The
applicant
denied that he is the type of person that would touch
others while talking to them and specifically denied he was the type
of person
that would touch a female on her upper leg. On the overall
probabilities it was far more probable than not that the applicant
had
such a mannerism even though he probably did not realize it.’
[85] In respect of Jones the
commissioner concluded as follows:
‘
74.
Ms Jones was a good witness who appeared to give her evidence in an
objective manner. She admitted that she was at the time
of the first
incident not sure whether the touching was deliberate and that she
was initially unsure what to think about the applicant’s
behaviour. Her evidence was to the effect that the applicant should
have realised on that first occasion that the touching was
unwelcome
because she moved away from him. However, so she testified further,
she did not move far away on that occasion. Because
of this her
evidence did not prove on a balance of probabilities that the
applicant became aware that the touching was unwelcome.
At the time
of the second occurrence Ms Jones inferred that the touching was
deliberate but did not indicate to the applicant that
the touching
was unwelcome and made as if she did not see it or feel it. Ms Jones
description of the third incident rendered it
highly probable that
the touching was not “
purposeful
and sexually orientated”
.
According to her the applicant was on that occasion facing her and
other colleagues and put his left hand behind her right shoulder
and
the other hand on her knee whilst talking to them. On this evidence
it is highly probable that the touching was part of a mannerism
and
that it was not ‘
purposeful
and sexually orientated’.
Ms
Jones’ evidence that she was uncomfortable on all three
occasions was highly probable. In the absence of a romantic
relationship
it is understandable that a woman would be uncomfortable
with a male colleague touching her in a manner described by Ms Jones.
It does not follow that the inference should be drawn that the
touching was done with a sexual intent or that it was foreseen that
it would make Ms Jones feel uncomfortable. The evidence did not prove
on a balance of probabilities that the touching did not occur
as part
of a mannerism and did not prove on a balance of probabilities that
it was ‘
purposeful and sexually orientated’.
The
respondent accordingly failed to prove that the applicant’s
conduct on the three occasions that Ms Jones referred to
constituted
sexual harassment.’
[86 In respect of the third occasion
when the employee placed his left hand on her back and his right hand
above her knee, the commissioner
arrived at a reasonable decision
when he found that the touching was not sexually motivated.
[87] The commissioner’s
reasoning insofar as the first two occasions are concerned is flawed
for the reasons hereunder.
[88] The conclusion that ‘On the
overall probabilities it was far more probable than not that the
applicant had such a mannerism
even though he probably did not
realize it.’ is not supported by the evidence that was before
the commissioner.
[89] The commissioner specifically
asked the employee whether he could have touched Jones without
knowing it. The relevant portion
of the transcript is:
‘
Commissioner:
“Isn’t there another possibility, not that that could be
the only possibility, but at least one of a number
of possibilities,
that you did touch her without even thinking or knowing about it and
that unknown to you she was, in fact, unhappy
about it?”
The
employee: “No, (inaudible).”
’
[90] Given the employee’s clear
and emphatic ‘No’ to the suggestion by the commissioner,
it is clear that the
commissioner did not consider relevant evidence
and arrived at a conclusion that was not supported by the evidence
before him.
[91] The cross examination proceeded
further:
‘
Maeso:
“... I put it to you that that would be highly improbable
because you just describe yourself as not overly touchy,
particularly
concerned when speaking to fellow employees and surely, if your hand
was on a woman’s leg, that is something
you would remember,
it’s not something you’re going to do subconsciously, on
more than one occasion…. Do you
agree?”
The
employee: “…my hand has never, I reiterate, has never
been on a woman’s leg.”
Mr
Maeso: “You’re absolutely certain about that?”
The
employee: “I’m a hundred percent absolutely certain, I
would not and I have never gone there to a woman’s
leg.”
Mr
Maeso: “So the only version that can really be is either you’re
telling the truth or Jones is lying, effectively.
That can be the
only way we can deal with this, is that correct?”
The
employee: What I am saying is that it has never happened, so as to
who is saying the truth, Mr Commissioner what I am saying
is what I
have done. I have never done that. I’m saying that this is what
Denise is saying, which is an absolute exaggeration
of the truth, Mr
Commissioner. “
Commissioner:
“The impression I got from what they were saying is that you …
have that type of personality where you
would be demonstrative with
your hands while talking… is that correct?”
The
employee: “To a certain degree, yes. I would want to express
myself, but I am not overly touchy to – I cannot recall
touching continuously people to express or to ensure that I feel them
or to touch them. I am fairly restraint.”’
The above evidence does not sustain
the conclusion reached by the commissioner in respect of the
employee’s touchy mannerism.
[92] The employee denied being able to
recall the first two occasions which Jones had referred to. This
evidence is verification
of his lack of credibility:
‘
Mr
Purdon: “Denise Jones, let’s talk about that. Do you have
any recollection of what she alleges? You heard her evidence
yesterday.”
The
employee: “I have no such recollection whatsoever of an
incident that she talked about.”’
[93] He did however remember that
there were no table cloths on the tables when they had lunch in
Pretoria after the hub rationalisation
meeting. This was not put to
Jones.
[94] He also denied having any
specific recollection of touching her on the second occasion when
they were at supper. His further
evidence is contained hereunder:
‘
Mr
Purdon: “Look, I think the bottom line is this, Mr Pillay, and
in all fairness to you is did you ever touch her in a way
that is
sexual?”
The
employee: “Absolutely, Mr Commissioner, I deny that touching
sexual of Denise (inaudible).
Mr
Purdon: “If it’s put to you that you put your hand on her
at some stage would you deny that?”
The
employee: “I cannot remember specifically that I put my hand, I
could have, I could have put my hand on her, but Mr Commissioner,
what I am saying is that I never touched her, as she claims, that I
touched her legs and I would pull my hands up up to her, being
surrounded, being there with the rest of my colleagues…..”
’
[95] Given that the employee denied
that he could possibly touch people without knowing it, it was more
probable that he was aware
when he was touching people. This is
further emphasised by his evidence that he is a fairly restrained
person and that whilst he
is to a certain degree expressive, he is
‘not overly touchy’. On his own version, what was loosely
accepted as his
‘touchy mannerism’ was limited to the
employee touching people on their hands and shoulders.
[96] It was not the employee’s
case that Jones was dishonest in her evidence. The commissioner
concluded that she was a good
witness and accepted that the employee
had touched her in the way she had described but he was unaware that
she did not welcome
the touching.
[97] Given that he remembered that
there were no table cloths at the Pretoria lunch, the probabilities
are that he recalled the
incident that Jones had referred to. In
denying recalling that evidence, he was dishonest. A reason to deny
such recollection would
be because he did place his hand above her
knee and rubbed her leg as she had described with the intention of a
sexual overture.
The description of the touching cannot leave any
doubt in any objective decision maker’s mind that the touching
was not platonic
or fraternal. Jones did not mind the fraternal or
platonic touching on the hand or the shoulder. She accepted those
actions as
signs of friendliness. The further reason for the employee
denying the recollection was that he was aware of her revulsion
thereof
by her instantaneous movement away from him.
[98] The commissioner’s
rejection of the probabilities that the employee was unaware of
Jones’ negative response to
the touching on the first occasion
is also flawed. He reasoned that because she did not move far away
from the employee (someone
sat to her left) he was not aware that his
actions were unwelcome.
[99] Not only did the commissioner
conclude that the employee was not aware of his own mannerisms when
speaking to people (which
was rejected by the employee) but he also
was unaware of the immediate reactions of other people including the
complainants to
his actions (which was also rejected by the
employee). The evidence required for a commissioner to arrive at this
conclusion would
be that the employee was completely inept at a
social level, had absolutely no idea how to conduct himself in
relation to staff
and had no clue in reading people’s reactions
to him. In other words, the employee had to be a social buffoon with
a very
low intellect. The evidence was quite the contrary. The
employee was a manager with several years experience, who whilst
friendly
is respectful of others, is sensitive to physical gratuity
in the workplace and who has a sense that he had led by example as
other
engineers look to him for guidance.
[100] Further, if the employee’s
own description of himself is accepted, that is that he was very
aware of other people’s
spaces and is himself not overly
touchy, he would have seen and felt Jones moving away. He would also
have been acutely aware of
her being embarrassed and her feeling of
unease as a result of his actions. He certainly had the intellectual,
social and emotional
intelligence to understand the implications of
her moving away. Despite her doubt as to his intentions on that day,
her instinctive
and immediate response was a physical rejection of
his advances. If he did not understand the implications of her
movement away
from him and if he, as the commissioner persistently
and incorrectly assumed, was not aware that he had a propensity to be
overly
touchy, he would have continued touching Jones that same day
despite her moving away. He did not do so. The only reasonable
conclusion
is that he understood her physical and non-verbal
communication to him when she moved away and accepted it that day.
[101] The only decision a reasonable
commissioner could have made in respect of the first incident is that
the employee did touch
Jones with sexual intent and he was aware that
his actions were unwelcome.
[102] Insofar as the second occasion
is concerned, the commissioner found that because she did not
indicate that the touching was
unwelcome the employee was unaware of
her response thereto. In so concluding, the commissioner failed to
consider the evidence
of the second incident later that same night
after supper, when the employee performed the same action and Jones
successfully placed
physical barriers in the form of colleagues
between her and the employee.
[103] Not only did the commissioner
omit relevant evidence he also failed to consider the events as
described by Jones insofar as
the requirements for sexual harassment
are concerned. The employee ought to have foreseen from Jones’
initial reaction to
his advances on the first occasion that any
further advance would not be welcomed. However, he persisted with
that conduct. When
Jones did not physically react to the first
incident during supper, and given her initial rejection of his
advances on the very
first occasion during the lunch, the employee
probably assumed that his advances were now welcomed. After supper,
he repeated the
action assuming that his advances were to be
accepted. On Jones barricading herself between two other colleagues,
the employee
had to accept that his advances were rejected and he did
not pursue further sexual overtures with Jones that night.
[104] The commissioner failed to apply
the requirements of the sexual harassment policy in the above
context. It is clear that the
employee had sexual intent on the
second occasion as well and that he became aware, when he tried the
second time that evening
to make his intention known, that Jones
would have none of it.
[105] Throughout his analysis of
Jones’ evidence, the commissioner did not take cognisance of
the purpose of the sexual harassment
policy. The commissioner also
disregarded the fact that Jones’ dignity was negatively
affected and that the employee’s
conduct did not make for
harmonious relations at work. There is no need for an employee to be
safeguarding herself from a colleague
by surrounding herself with
people all the time. He paid no heed to the fact that at a rational
level, Jones gave the employee
the benefit of the doubt the first
time he made an advance on her and that only after she found the
benefit to be misplaced did
she take control of the situation in a
discreet and effective way. She was objectively not the girl who
cried wolf.
[106] Insofar as the first two
occasions are concerned, the commissioner did not arrive at a
decision that a reasonable commissioner
would have made. The only
conclusion that a reasonable commissioner could arrive at on the
evidence before the commissioner is
that the employee’s
touching of Jones was not a mannerism but a sexually purposeful
touching in circumstances where he knew
or ought to have known that
such touching was unwelcome or unwanted.
[107] Insofar as Behrmann is
concerned, the commissioner concluded that she was not as good a
witness as Jones and that many portions
of her evidence were
improbable. On an objective conspectus of all the evidence in respect
of the sexual harassment of Behrmann,
the most probable version is
that the employee did touch her on various occasions but not to the
extent that she described. It
is more probable that Behrmann
exaggerated some of her evidence to paint the employee in a worse
light. The commissioner, however,
rejected her version in totality
and found that the employer had failed to prove on a balance of
probabilities that ‘such
instances of touching as might have
occurred in relation to Behrmann was accompanied by the requisite
blameworthy state of mind
and it constituted sexual harassment.’
[108] The probabilities went against
Behrmann’s evidence that the employee placed his hand in her
pants; that he invited female
staff to sit on his lap whilst he was
on the swing and her seeing him touching other female staff in his
office. The commissioner
in rejecting this evidence arrived at a
decision that a reasonable commissioner would have made. However, on
the issues of the
employee touching Behrmann on the hip, waist and
pelvic area; brushing past her so that he touched her breasts and in
respect of
holding her upper left arm and touching her beasts, the
decision is not supported by the evidence. Further the employee’s
own evidence of the swing incident contradicts his evidence of his
personality.
[109] The commissioner had before him
two witnesses who were less than satisfactory: Behrmann who, at
times, exaggerated the truth
and the employee who was less than
forthcoming with the truth.
[110] As stated above, the employee
portrayed himself as very aware of people’s spaces and
gratuitous physical contact. However,
his overall summation of
himself bore two improbabilities.
[111] The first was that despite his
alleged reserved demeanour, he did not ward off the female staff who
sat on his lap whilst
he was on the swing. Whilst he did not invite
them to sit on his lap he did not discourage them from sitting on his
lap. This is
hardly the behaviour of a reticent employee who prefers
not to touch people. This can be seen from his evidence under
cross-examination:
‘
Commissioner:
“But sometimes people who are in the habit of touching other
people don’t even know that they are doing
it.”
The
employee: “Yes, well, Mr Commissioner, it’s not my
general habit to touch people always. Sometimes I do.”
Mr
Maeso: “That’s correct, I think you actually said in your
evidence-in-chief that you’re not a touchy person.”
The
employee: “I do not, I do not overpower people. I never touch
their hands, touch their ears, hug or put my arms around
them, I just
do not do that. If I’m, I’m a little of an expressive
person, as you can see, Mr Commissioner, (inaudible)
I would just
touch the shoulder, or not in a way just to, it’s to say that
“Hi” that type of thing. I could have
touched Noelene by
her shoulder, Mr Commissioner, I am not saying that I have not
touched her, but I cannot recall what the situation
is or was, Mr
Commissioner.”
Mr
Maeso: “In your evidence-in-chief, in fact, you went so far as
to say you were very cautious when speaking to staff.”
The
employee: “Absolutely correct, Mr Commissioner
.”’
[112] Secondly, he denied walking so
closely past Behrmann that he would brush her breasts. The
commissioner concluded in paragraph
78 that the manner in which his
brushing past Behrmann was described by her
‘“…
did
not give any indication that it was deliberately done and was
entirely consistent with something that happened by accident.
Ms
Behrmann’s explanation as to why she believed that these
actions were deliberate was unsatisfactory. Her explanation was
that
she believed it was deliberately done because it happened repeatedly
and because the applicant failed to apologise.’
[113] If the employee’s version,
that he is a restrained person is to be accepted, it would logically
follow that he would
foresee when a member of staff is too close to
him for him to pass her without touching her. He could either take a
step to the
side so that he avoided physical contact with her body or
asked for more space to pass her to avoid making physical contact
with
her body. On the very improbable assumption that he did not have
such foresight, and he proceeded to brush against her body when
passing her, he would apologise after doing so. These are reasonable
actions done every day by everybody. There is nothing challenging
in
their execution. If nothing else manners would have dictated that he,
at the very least, apologised. The employee did none of
these things.
[114] For the employee not to foresee
that he would brush past her implies that he would have to be a
bumbling, awkward person with
no idea of his own body space and that
of others. His evidence was quite the contrary and the probabilities
are against him on
this score.
[115] It is therefore more probable
that he did intentionally walk so close to Behrmann so that he would
brush her breast with his
arm or elbow. He ought to have known or
foreseen that his conduct would be inappropriate and unwelcome.
[116] The commissioner found that the
employee’s touching of Behrmann’s hip, thigh and
abdominal area was ‘entirely
consistent with touching that
occurred as part of the mannerism that the applicant had.’
[117] I have already set out earlier
in this judgment why the employee’s alleged ignorance of his
mannerisms are not probable.
For those reasons, the alleged ignorance
of what he was doing is also rejected. There is certainly no doubt
that a manager’s
touching of a junior employee’s thigh,
hip and abdominal area cannot be construed as friendly. Further, the
commissioner’s
conclusion implies that the employee had no
control over his arms when speaking – this is so highly
improbable so as to border
on the ridiculous. The most probable
version therefore is that the employee intended these actions to be
sexual and not platonic
or fraternal in respect of Behrmann.
[118] The commissioner further
concluded that the
‘
touching
was not accompanied by any verbal indication of a sexual motive and
on the contrary occurred whilst they were talking about
work related
documents or sites that one could visit in London and this further
rendered it likely that the touching was part of
a mannerism.’
[119] The above conclusion is
erroneous for the following reason: the employer’s disciplinary
code and the sexual harassment
policy do not define sexual harassment
as requiring any verbal indication of a sexual motive. Sexual
harassment is ‘behaviour
of a sexual nature’ – and
although verbal insinuations by themselves may constitute sexual
harassment, they need not
be present when physical sexually motivated
conduct occurs.
[120] At paragraph 81, the
commissioner concluded that:
‘
Ms
Behrmann’s evidence relating to the applicant holding her from
behind by her left upper arm and then bending his fingers
backwards
so that it touched the side of her left breast was highly improbable.
According to her this occurred while she was sitting
or standing at
her work area. This was an open plan office and in close proximity to
other staff members whose work areas were
close by. It is highly
improbable that the applicant would touch Ms Behrmann’s breast
so close to other staff members. The
bending backwards of the fingers
was not mentioned at any stage prior to the arbitration and it is
probable that this was added
because Ms Behrmann realized that
questions would be asked as to how it was possible that the applicant
could have “
rubbed
the back of his hands against my breasts
”
which was how she described in her statement. It is much more
probable than not that the applicant on occasion held her
arm from
behind while requesting Ms Behrmann to do something work-related and
that such touching was not sexual orientated.’
[121] The above conclusions are also
not supported by the evidence. In her written statement, Behrmann
records at paragraph 4:
‘
At
time when I was sitting at my work station he would come to me and
rub the back of his hand against my breast.’
[123] The detail of the touching is
not recorded in the written statement, however the uncontested
evidence of Behrmann was that
the written statement was typed by one
of the investigators from her answers to their questions. It is
conceivable that some of
the detail could have been lost during the
taking down of the statement and some weight must be placed on the
fact that Behrmann
was uncomfortable in describing the touching to
the two investigators. It is probable that the detail which she had
given to the
investigators was not recorded
verbatim
.
[124] During the disciplinary hearing
however, Behrmann testified that the employee touched ‘my
breast with the back of his
hand’ and demonstrated on a person
by the name of ‘Carin’ how this touching occurred. Whilst
so demonstrating
her words were:
‘
He would
touch me like this on my inner arm and breast.’
[125] Unfortunately, the detail of the
demonstration is not recorded in the transcript of the disciplinary
hearing. The detail of
the touching is clear in the transcript of the
arbitration hearing because that hearing had the benefit of two
experienced attorneys
representing the parties and who made a point
of placing on record the various actions by the witnesses. The lack
of detail in
the disciplinary hearing has very little to do with
Behrmann’s credibility and it is probable that she did indeed
demonstrate
at the disciplinary hearing what she demonstrated at the
arbitration hearing. It is therefore probable that she had testified
as
to how the employee had rubbed the back of his hand against her
breast at the disciplinary hearing.
[126] The cross-examination of
Behrmann in the disciplinary hearing neither elicited any further
clarification of the touching in
this regard nor did it dispute
Behrmann’s description. It was pinned to the improbability of
the employee touching her in
such close proximity to her colleagues.
[127] The cross-examination on this
point during the arbitration hearing went further to the point of
suggesting that her breasts
are not in the region of her armpits,
however it was not put to her that she had belatedly construed this
evidence to tie in with
her written statement.
[128] The finding that Behrmann had
added this detail to her evidence is not supported by the evidence
that was placed before the
commissioner.
[129] The finding that it would be
highly improbable that the employee would touch Behrmann’s
breast whilst in so close proximity
to other employees is also
flawed.
[130] The employee’s hand was
blocked from view when it was placed between Behrmann’s upper
arm and body. Not only was
it blocked by its discreet positioning, it
was also blocked by the partitioning, the three/four drawer cabinet
and the employee’s
body. It was not possible for her colleagues
to see that his fingers were pressing against the side of her breast.
It was also
not necessary for his fingers to protrude beyond the
front of her breast for them to feel the side of her breast. The
close proximity
of colleagues in these circumstances is irrelevant
and of no value to the credibility of Behrmann’s evidence.
[131] The finding that the employee
held Behrmann in the upper arm and such touching was not sexually
orientated, is not a decision
that a reasonable decision maker would
have reached.
[132] Behrmann testified that she
pulled back every time he touched her. This evidence was not denied
or disputed by the employee.
[133] Behrmann’s physical
response was a sufficiently explicit communication to him that he
must no touch her. He therefore
knew or foresaw that his actions
would not be welcomed but he persisted nonetheless.
[134] When viewing the evidence as a
whole, it is clear that the employee used physical overtures to
communicate his sexual intention.
He did not use verbal innuendo or
statements. He was nonetheless communicating to the complainants his
sexual intent. To my mind,
he was objectively intelligent and
perceptive enough to know and understand that their physical
responses communicated to him that
his advances were inappropriate
and unwelcome. There was no need for them to verbally state ‘Fred
please do not do that.’
for him to realise that what he was
doing was inappropriate and unwelcome. To do so, would place an
unnecessary burden on complainants
to verbalise to the perpetrator
their embarrassment and lack of ease when being sexually harassed.
The code of good practice does
not stipulate this as a requirement
and complainants may be afforded confidentiality should they so
require. This is not to say
that it should not be verbalised. There
are people who are more forthright than others and who are confident
enough to verbalise
their disquiet to the perpetrator in the
workplace and still get on with the job. There are also other people,
like the complainants,
who cannot do so. Feigned ignorance on the
part of the perpetrator in such instances does not remove the element
of
dolus
.
[135]
The consequences of sexual harassment
is correctly and well put by Waglay DJP in
Themba
Prince Motsamai v Ever Right Building Products (Pty)Ltd
3
where it is held that:
‘
Sexual
harassment is the most heinous conduct that plagues the workplace,
not only is it deeming to the victim it undermines the
dignity,
integrity and self worth of the employee harassed. The harshness of
the wrong is compounded when the victim suffers it
at the hands of
his/her supervisor. Sexual harassment goes to the root of one’s
being and must therefore be viewed from the
point of view of a
victim; how does he/she perceive it, and whether or not the
perception is reasonable.’
[136] The commissioner also acted
improperly in suggesting to the employee that he was unaware that he
had a touchy mannerism and
was unaware of his touching the
complainants. This was not the evidence before him and it certainly
was not the employee’s
case in the disciplinary hearing.
[137] This impropriety by the
commissioner went further when he found, despite the employee’s
clear and unambiguous denial
of such a possibility, that the employee
was indeed touchy by nature, he was not aware of it and he lacked the
necessary state
of mind to be found guilty.
[138] The decision of Murphy AJA at
paragraph 44 of
Mzi Gaga / Anglo Platinum Limited and Others
case number JA 44/10 handed down on 20 October 2011 is apposite:
‘
44.
Where a commissioner fails properly to apply his mind to material
facts and unduly narrows the inquiry by incorrectly construing
the
scope of an applicable rule, he will not fully and fairly determine
the case before him. The ensuing decision inevitably will
be tainted
by dialectical unreasonableness (process-related unreasonableness),
characteristically resulting in a lack of rational
connection between
the decision and the evidence and most likely an unreasonable outcome
(substantive unreasonableness). There
will often be an overlap
between the ground of review based on a failure to take into
consideration a relevant factor and one based
on the unreasonableness
of a decision. If a commissioner does not take into account a factor
that he is bound to take into account,
his or her decision invariably
will be unreasonable. The flaw in process alone will usually be
sufficient to set aside the award
on the grounds of it being a latent
gross irregularity, permitting a review in terms of section 145(1)
read with section 145(2)(a)(ii)
of the LRA. In his minority judgment
in
Sidumo.
Ngcobo
J (as he then was) in effect distinguished review on grounds of
dialectical unreasonableness from substantive unreasonableness,
when
he observed:
“
It
follows therefore that where a commissioner fails to have regard to
material facts, the arbitration proceedings cannot in principle
be
said to be fair because the commissioner fails to perform his or her
mandate. In so doing …. the commissioner’s
action
prevents the aggrieved party from having its case fully and fairly
determined. This constitutes a gross irregularity in
the conduct of
the arbitration, as contemplated in section 145(2)(a)(ii) of the LRA.
And the ensuing award falls to be set aside
not because the result is
wrong but because the commissioner has committed a gross irregularity
in the conduct of the arbitration
proceedings.”’
4
[139] In the circumstances, the
commissioner committed reviewable irregularities in not considering
relevant evidence and in concluding
that the employee did not have
the requisite state of mind when he acted as he did, that his conduct
was rooted in mannerisms of
his personality and he therefore did not
commit sexual harassment. The decision reached by the commissioner is
not a decision that
a reasonable commissioner would have made.
[140] The employer’s
disciplinary code only allows for two alternatives: a final written
warning or a dismissal for a first
offence, if an employee is found
guilty of sexual harassment.
[141] At paragraph 48 of the
Gag
a
judgment Murphy AJA held:
‘
48.
By and large employers are entitled (indeed obliged) to regard sexual
harassment by an older superior on a younger subordinate
as serious
misconduct, normally justifying dismissal. In
SA
Broadcasting Corporation Ltd v Grogan NO and Another,
5
Steenkamp
AJ (as he then was) observed that sexual harassment by older men in
positions of power has become a scourge in the workplace.
Its
insidious presence is corrosive of a congenial work environment and
productive work relations. Harassment by its nature will
steadily
undermine the supervisory authority vested in the superior, upon
which the employer perforce must rely, and hence will
diminish or
even destroy the trust requisite in the employment relationship;
ultimately justifying the imposition of the sanction
of dismissal. It
is appropriate then for this court and employers to send out an
unequivocal message: senior managers who perpetrate
sexual harassment
do so at their peril and should more often than not expect to face
the harshest penalty. Much will depend on
the circumstances, with the
court or commissioner being obliged to have regard to the nature and
gravity of the infringement; the
impact on the victim; the
relationship between the perpetrator and victim; the position and
responsibilities of the perpetrator;
and whether or not there is a
pattern of behaviour evidenced by prior misconduct.’
[142] Despite his clean disciplinary
record the employee persisted in a denial of misconduct in both the
internal hearing and the
arbitration proceedings. He was afforded an
opportunity by the commissioner to acknowledge that he had a touchy
personality –
which he refused to take. He has not shown that
despite his denial of the misconduct, that at a principled level such
conduct is
abhorrent and that he would ensure that the complainants
never have to be concerned about his future behaviour. He is
unreformed
and to my mind has the propensity to continue with this
conduct should he be reinstated. In the circumstances, it is
appropriate
that he be dismissed.
[143] In the circumstances, the
following Order is made:
The application for review is
granted;
The award is set aside and
substituted by an award that reads as follows:
‘
1. The
dismissal of the employee is substantively fair.’
There is no order as to costs.
_______________
Reddy AJ
APPEARANCES:
FOR THE APPLICANT: Mr M Maeso of
Shepstone and Wylie Attorneys
FOR THE THIRD RESPONDENT: Mr B Purdon
of Brett Purdon Attorneys
1
2003
(1) SA 11
SCA.
2
SFW
Group Ltd and another v Martell et Cie and Others
at para 5...
3
unreported
case number JA 21/08 para 20.
4
At
para 268.
5
(2006)
27 ILJ 1519 (LC) at 1532A, para 51.