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[2012] ZALCJHB 116
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Mclaughlin v Independent Loss Consultants CC (JS166/2010) [2012] ZALCJHB 116; [2013] 1 BLLR 41 (LC) (18 October 2012)
15
Reportable
REPUBLIC OF SOUTH
ARFICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JS166/2010
In the matter between:
JAMIE McLAUGHLIN
.....................................................................................
Applicant
and
INDEPENFENT LOSS
CONSULTANTS CC
...............................................
Respondent
Heard: 3 March 2012
Delivered: 18 October
2012
Summary: Automatically
unfair dismissal-claim based on sexual harassment and protected
disclosure. The disclosure made to the family
and not the employer.
Damages in terms of Employment Equity Act.
JUDGMENT
MOLAHLEHI J
Introduction
The applicant seeks an
order directing the respondent pay her the equivalent of 24 months
compensation in terms of
section 194
of the
Labour Relations Act of
1995
, consequent to her alleged automatically unfair dismissal for
operational reasons. The applicant further claims damages in the
amount of R500 000,00 in terms of the Employment Equity Act (EEA).
The issues for
determination
The issues for
determination as set out in the pre-trial minutes are as follows:
The dismissal of the
applicant was as a result of sexual harassment or disclosure
thereof as contemplated in section 187 (1)(d)
read with section
187(1) (f) and (h) of the LRA.
The applicant was
subjected to unfair discrimination and harassment as contemplated
in section 6(3) of the Employment Equity
Act.
The respondent is
liable for payment of damages in the amount of R500 000,00 in
terms of the provisions of EEA arising
from the allegation that the
respondent failed to take steps to stop and protect her from the
sexual harassment.
Background facts
It is common cause that
the applicant who was prior to her dismissal employed as
receptionist\switch-board operator commenced
her employment with the
respondent during October 2008 and her employment was terminated in
November 2009.
On 23 October 2009 the
employees of the respondent received a letter advising them that a
meeting would be held on 26 October
2009. Thereafter five of the
employees received a letter on 28 October 2009 informing them that
they would be retrenched with
effect from 30 November 2009.
The applicant being
unhappy with the decision to retrench her referred a dispute
concerning an alleged unfair dismissal to the
CCMA and the
conciliation process having failed, launched the present claim.
The respondent is
involved in the business of risk assessment in the insurance sector.
The fees paid for the work done by the
clients are according to the
respondent, determined by the insurance companies and varies from
month to month.
It is common cause that
during 2008 the applicant was asked by the member of the respondent,
Ms Gilau (the owner), as to what
she intended doing on completion of
her matric in that year. It was during this discussion that the
applicant was offered employment
with the respondent as a
receptionist and switch board operator. The owner of the respondent,
Ms Gilau was family friend of the
applicant and was the employer of
both the applicant’s grand-mother and her mother.
The applicant alleges
that 15 days into her employment she was sexually harassed by Mr
Dean Gilau (Dean), the son of the owner
of the respondent. Dean was
not an employee of the respondent but assisted her mother at the
office with IT work.
The applicant in her
statement of case says that during the course of 22 December 2008,
she was subjected to sexual harassment
by Dean who on that day was
doing IT work at the respondent’s workplace. According to her,
it all started with Dean making
jokes of a sexual nature which she
simply “laughed off” as the two of them were
acquaintances for a period of three
years.
Dean is also alleged to
have said that he never cheated in his previous relationships and
wondered how it was like to cheat. He
is alleged to have further
indicated that he would not want to do it once he was married and
invited the applicant to cheat with
him. The applicant declined the
request. The applicant stated that that afternoon she received a sms
from Dean requesting her
not tell anybody in particular her mother
as to what happened during the day.
Dean arrived again the
following day at the office and according to the applicant continued
with his sexual harassment. He sat
next to the applicant, held her
hand and begged her to take her “down the passage for
privacy.” When the applicant
enquired as to why they needed
privacy, the response was that she had the most beautiful breast he
had ever seen and that he
wanted to play with her “boobies.”
The applicant says she thereafter went to the kitchen to make tea
and Dean followed
her and kissed her against her will.
It is common cause that
the applicant did not immediately report the incident she complaint
about to the respondent. It took about
ten months before the alleged
incident was brought to the attention of the respondent. The
applicant says she was scared to report
or inform anybody about the
incident for fear of losing her job which she had secured in order
to save money for the purposes
of going on holiday in New Zealand.
The applicant took her
holiday during October 2009 which contrary to what is stated in the
statement of case was in Durban and
not New Zealand. On 12 October
whilst the applicant was away on holiday Ms Gilau convened a meeting
with employees and requested
them to place any complaint or
grievances they had on the table.
Ms Joan Gilau (Joan),
daughter-in-law of the owner of the respondent indicated during the
meeting that she had something to report
but that it was of a very
sensitive nature and that she preferred to discuss it in private.
The applicant’s grand-mother
then interjected and stated that
she was aware of the sensitive issue which Joan was referring to and
that it was about the sexual
harassment that Joan’s husband
had perpetuated on the applicant.
On her return from her
holiday, the applicant received a letter informing her that she was
retrenched as from 30 November 2009.
The key question in this
matter is whether the applicant’s dismissal was automatically
unfair. The applicant did not plead
in the alternative should it be
found that the dismissal was not automatically unfair. In other
words the applicant did not plead
unfair dismissal in terms of
Section 188(1) of the LRA as an alternative to the automatically
unfair dismissal. It therefore
means that if it is found that the
dismissal was not automatically unfair then that is the end of the
matter, no further inquiry
need be conducted. The other issue to
consider is whether the respondent is liable for damages in terms of
the provisions of
the Employment Equity Act (the EEA). This issue
entails investigating firstly whether the respondent was aware of
the alleged
discrimination and if she was not what she did to ensure
safety at the workplace arising from the alleged sexual harassment.
Legal Principles
The relevant parts of
section 187 of the LRA for the purposes of this judgment are
subsections (1) (d), (f) and (h). In terms
of section 187 (1) (d)
and (f) and (h) a dismissal is automatically unfair if the employer
in dismissing the employee, acts contrary
to the provisions section
5 of the LRA.
1
In terms of section 187
of the LRA a dismissal is automatically unfair if the reason for the
dismissal is:
‘
(d)
that
the
employee
took action, or indicated an intention to take action, against the
employer by -
(i) exercising any right conferred by
this Act
; or
(ii) participating in any proceedings
in terms of
this Act
;
(e) ….
(f) that the employer unfairly
discriminated against an
employee
, directly or indirectly, on
any arbitrary ground, including, but not limited to race, gender,
sex, ethnic or social origin, colour,
sexual orientation, age,
disability, religion, conscience, belief, political opinion, culture,
language, marital status or family
responsibility.
(g) . . .
(h) a contravention of the
Protected
Disclosures Act, 2000
, by the employer, on account of an
employee
having made a protected disclosure defined in that Act.’
The applicant’s
claim in the present instance is also founded on the provisions of
the EEA. In terms of
Section 5
of the EEA an employer has a duty to
take positive steps to ensure promotion of equal opportunities for
all employees by eliminating
unfair discrimination at the workplace.
Section 6
of the EEA deals with the prohibition of unfair
discrimination and reads as follows:
‘
(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, gender, sex, pregnancy, marital status,
family responsibility, ethnic or social origin, colour,
sexual
orientation, age, disability, religion, HIV status, conscience,
belief, political opinion, culture, language and birth.’
It
is apparent from the above that in terms of the EEA the issue of
sexual harassment is governed by
section 6(3)
which specifically
states that harassment constitutes discrimination. It is trite that
the court has the power where it has been
proven that sexual
discrimination within the definition of discrimination has occurred
to make an order that is just and equitable
in the circumstances and
this may include payment of compensation by the employer to the
affected employee, award of damages
to the affected employee, or an
order that the employer should take preventative steps to eliminate
the discrimination.
2
In
Mokoena
and Another v Garden Art (Pty) Ltd and Another,
3
it
was held that the employer became liable in terms of
section 60
of
the EEA where the alleged harassment had been brought to the
attention of the employer and thereafter the employer failed
to take
proper steps to prevent such harassment in the future. The Court
further held that where the employer had reacted to
employee’s
report of sexual harassment by issuing a written warning, and where
no further incidents had occurred, the employer
was not liable in
damages to the employees.
Section 187
(1) (h) of
the LRA governs dismissal based on occupational detriment which
renders automatically unfair a dismissal as a result
of an employee
having made a protected disclosure.
Section 4
(2) (a) of the
Protected Disclosure Act (PDA)
4
also provides that any
dismissal in breach of section 3 is deemed to be an automatically
unfair dismissal as contemplated in section
187 of the LRA.
A protected disclosure
is governed by section 9 of the PDA which reads that:
‘
(1) Any
disclosure
made
in good faith by an
employee—
who reasonably believes that the
information disclosed, and any allegation contained in it, are
substantially true; and
who does not make the
disclosure
for purposes of personal gain, excluding any reward payable in
terms of any law;
is a
protected disclosure
if—
(i) one or more of the conditions
referred to in subsection (2) apply; and
(ii) in all the circumstances of the
case, it is reasonable to make the
disclosure.’
The conditions in
subsection (2) that are relevant for the purpose of this matter are
found in paragraph (c) which read
:
‘
(c)
that
the
employee
making
the
disclosure
has
previously made a
disclosure
of
substantially the same information to:
(i) his or her
employer
or
(ii) a person or body referred to in
section 8, in respect of which no action was taken within a
reasonable period after the disclosure.’
The effect of these
provisions is that the disclosure would be protected if the employee
who made the disclosure acted in good
faith; reasonable believe that
the information disclosed and the allegations made by him or her
were substantially true, was
not made for personal gains and that
one or other of the conditions in section 9 (2) (c) and (d) of the
PDA was satisfied.
The approach to adopt
when dealing with the issue of automatically unfair dismissal
received attention in
Kroukam
v SA AirLink (Pty) Ltd,
5
where the court in
dealing with the alleged automatically dismissal of a shop-steward
held per Zondo JP as he then was, that even
if the activities of the
shop-steward were not the dominant or principal reasons for the
dismissal the dismissal would have still
been automatically unfair
if it was to be found that such reasons played a significant role in
the dismissal of the shop-steward.
In the same judgement. Davis AJA,
arriving at the same conclusion as that of Zondo JP but reasoning
differently, held that the
inquiry into the reason for the dismissal
in an alleged automatically unfair dismissal is an objective one and
entails an investigation
into both the factual and legal causation.
At paragraph 103 Zondo JP had the following to say:
‘
[103]
However, even if the reasons that I have found to constitute the
dominant or principal or reason or reasons for the dismissal
did not
constitute the principal or dominant reasons for the applicant’s
dismissal, I would still find that the dismissal
was automatically
unfair if such reasons nevertheless played a significant role in the
decision to dismiss the applicant. In my
view for policy
considerations, where such reasons have influenced the decision to
dismiss to a significant degree, the dismissal
should be dealt with
as an automatically unfair dismissal in order to deter as many
employers as possible from entertaining such
illegitimate matters as,
for example, racism and the exercise of rights conferred by the Act
as factors in their decisions to dismiss
employees.’
Davis AJA in his
judgment at paragraph 28 had the following to say:
‘
[28] In my
view section 187 imposes an evidential burden upon the employee to
produce evidence which is sufficient to raise a credible
possibility
that automatically unfair dismissal has taken place. It then behoves
the employer to prove to the contrary, that is
to produce evidence to
show that that the reason for the dismissal did not fall within the
circumstance envisaged in section 187
for constituting an
automatically unfair dismissal.’
In
SA
Chemical Workers Union & others v Afrox Ltd,
6
Froneman
DJP formulated the approach to be adopted when dealing with
automatically unfair dismissal as follows:
‘
[32]
The enquiry into the reason for the dismissal is an objective one,
where the employer's motive for the dismissal
will merely be one of a
number of factors to be considered. This issue (the reason for the
dismissal) is essentially one of causation
and I can see no reason
why the usual two-fold approach to causation, applied in other fields
of law, should not also be utilized
here (compare
S
v Mokgethi & others
1990 (1) SA 32
(A) at 3
9D–
41A;
Minister of Police v Skosana
1977 (1) SA 31 (A) at
34).’
The authorities are in
agreement that for an employee to succeed in a claim of
automatically unfair dismissal, he or she
has
to produce sufficient evidence to raise a credible possibility that
an automatically unfair dismissal has taken place. Thus
the onus is
on the employee to show that the true reason for the dismissal is
one prohibited in terms of the law.
7
It
is also generally accepted that once the employee discharges the
evidentiary burden of showing that the dismissal was for an
impermissible reason, it is upon the employer to discharge its onus
of proving that the dismissal was for a permissible reason
as
provided for as provided for in terms of s188 of the LRA.
The versions of the
parties
[28] Turning to the facts
in the present instance the respondent says that the applicant was
dismissed due to operational reasons.
The essence of the applicant's
case on the other hand, is that she was dismissed because of the
complaint or disclosure of the
sexual harassment perpetuated by the
son of the owner of the respondent on her.
[29] It is trite that in
cases of this nature the applicant bears the evidentiary burden of
producing evidence sufficient to raise
a credible possibility that an
automatically unfair dismissal exists. The applicant must produce
sufficient evidence to satisfy
the court that there is a causal
connection between the dismissal and the alleged act of
discrimination.
[30] The main witness of
the applicant was her grandmother who testified the owner told her on
the way to the meeting of 12 October
2009, how she was tired of
rumours and that must come to an end.
[31] As stated earlier,
during the course of the meeting Joan, the daughter-in-law of Ms
Gilau, stated that she had sensitive information
which she needed to
raise. As a consequence of the comment by Joan, Ms Gilau arranged a
meeting where the so-called sensitive information
was to be
discussed.
[32] At the meeting Dean,
stated that he heard about the rumours that he was sexually harassing
the applicant. The grandmother then
enquired as to what he said to
the applicant. Joan then laughed at the allegation. The applicant’s
grandmother indicated
that this was not a laughing matter. She
further indicated that there was no way that the matter could be
resolved and that seems
to have been the end of the meeting.
[33] Thereafter five
employees including the applicant received notices that they would be
retrenched. According to the grandmother
the respondent informed them
that she was not going to use LIFO in selecting those to be
retrenched but would use merit and skill.
The applicant's grandmother
contended that there was no basis for the retrenchment because
employees including the applicant received
increases during September
2009.
[34] As to the reason for
not raising the issue with the respondent prior to the 12 October the
grandmother stated that the issue
was not raised
because
the applicant had just come
out
of school and had been advised by her grandfather not raise the issue
of an alleged sexual harassment with any person.
[35] The applicant
testified that her mother and grandmother filed grievance on her
behalf.
She also stated that she was afraid to
report because Dean was about to get married to Joan and was afraid
to break their relationship
.
When
asked what she expected the respondent to do in the context of having
not raised the issue earlier, the applicant testified
that she did
not expect the respondent to do anything as she did not inform her
about the allegations. She further testified under
cross examination
that the respondent could not be blamed for failing to provide a safe
working environment because she did not
know prior to October about
the sexual harassment allegations.
[36] The relationship
between the applicant and Dean continued without any difficulty after
the alleged incident according to the
applicant. She also stated that
at the time of raising the issue of retrenchment, the respondent was
not aware of the allegations
of sexual harassment.
[37] Ms Gilau, testified
that she was not aware of the sexual harassment allegations at the
time she contemplated the retrenchment
and also, when she called the
meeting on 12 October 2009. It was at the end of the meeting that
Joan indicated that there was sensitive
information she had to raise
and that led to the grandmother of the applicant making allegations
regarding the sexual harassment.
[38] As concerning the
salary increase of Ms Gilau, testified that the reason for the
increase was that at the time of the increase
the applicant had been
with the respondent for period of about seven months and that the
increase was to bring her in line with
other employees. She also
stated that at the time of giving the increase she had anticipated an
increase in the insurers claims
which did not materialise.
[39] As concerning the
selection criteria Ms Gilau, testified that she used merit in
selecting those who were to be retrenched.
She retained her
daughter-in-law, who at the time was employed on a temporary basis
because according to her she (the daughter-in-law)
had skills which
the others did not have. The applicant could, according to Ms Gilau,
have achieved the necessary skill only after
some training and
further that she was trainable.
[40] The second witness
of the respondent was Dean who testified that he had a friendly
relationship with the applicant and the
two of them would always joke
about things. He disputed the allegation that he had sexually
harassed the applicant and that he
was not aware of the allegations
until somewhere in October when someone called him and told about
those rumours.
[41] During cross
examination Dean testified that he could not provide the reason why
the applicant spread the rumours about him.
He stated that the
applicant had a problem about self confidence and was always worried
about her body. It is possible according
to him that he may in
comforting her may have said to her not to worry because she had
beautiful “boobs”.
Evaluation
[42] In analysing this
matter it is important to note that the applicant has based her two
claims; automatically unfair dismissal
and damages, on three causes
of action which are:
she was dismissed
because she exercised her right in terms of section 187 (1) (d) of
the LRA.
The dismissal was
automatically unfair because she made the disclosure to the
following the alleged incident of sexual harassment.
The respondent failed
to provide a safe working environment and contravened the
provisions of section 187 (1) (f) and section
6 (1) of the EEA.
[43] The first question
to answer in as far as the alleged automatically unfair dismissal is
concerned is whether the applicant
has put sufficient evidence to
show a causal connection between the dismissal and the alleged
discrimination which arose from the
alleged sexual harassment. I
accept for the purposes of this judgment that the applicant was
sexually harassed by Dean. Except
for the bare denial the version of
the applicant was not seriously challenged by the respondent.
Although Dean did not make a full
concession to the allegation he did
testify that he may at some point have made comments which had sexual
connotations concerning
the physical appearance of the applicant. He
testified that he made those comments in the context of comforting
the applicant who
according to him had a problem of self-confidence
about her body. It would seem on his version that women who lack
confidence can
be affirmed by tarnishing their dignity and subjecting
them to unsolicited sexual harassment. It was not his testimony that
the
applicant consented to his sexual comments about her body.
[44] In as far as the
issue of the protected disclosure is concerned, the critical question
is not so much whether or not the harassment
occurred but rather
whether it was a disclosure, which the applicant made in good faith,
believing it to be true that led to her
dismissal. In other words the
enquiry is whether the dismissal was as a result of the disclosure or
put in another way, "but
for the disclosure" by the
applicant of the sexual harassment the respondent would not have
dismissed her.
[45] The period of 10
months before the disclosure is indeed a significant period but that
however does not detract from the fact
that the applicant was
subjected to unwarranted harassment.
[46] Turning to the
issues arising from the facts of this case the first enquiry to be
conducted, based on the above authorities
is whether the applicant
has presented sufficient evidence to connect her dismissal to the
disclosure of the sexual harassment.
The applicant’s case in
the pleadings is that she made the disclosure herself to the
respondent.
[47] Accepting that the
dismissal was after the disclosure, it does not however follow to the
alleged automatically unfair dismissal
was due to that disclosure.
The evidential burden to show causal connection between the dismissal
and the disclosure rested on
the applicant. The applicant’s
case is that even though, the reason for the dismissal is stated by
the respondent as being
for operational reasons, the true reason for
her dismissal is because of the alleged disclosure of the sexual
harassment to the
third respondent.
[48] In answering the
further questions posed by the respondent in the pre-trial minutes
and specifically in answering the question
as to who was the
disclosure made to, the applicant states that she made the disclosure
to the owner. She however conceded during
cross examination that she
never made any disclosure herself to the third respondent. She
testified that she made the disclosure
to her family. The applicant
further conceded that she never lodged a grievance regarding the
allegations of sexual harassment
with the respondent. She also
conceded that she never exercise any right in terms of the law.
[49] And with regard to
the alleged contravention of the provisions of section 6 (1) of the
EEA the applicant conceded during cross
examination that the work
environment was never unsafe and that she never sought any protection
from the respondent. She further
conceded that she never brought the
allegations of the sexual harassment to the respondent’s
attention and therefore the
respondent could not have been expected
to have taken any action in terms of addressing those allegations or
making the working
environment safe.
[50] It is common cause
that the respondent was not until the meeting of October aware of the
allegations and as soon as she became
aware she immediately arranged
a meeting to deal with those allegations. The meeting unfortunately
produced no results except that
the applicant’s grandmother
indicated that she intended instituting legal action regarding the
matter. The other step which
the owner took after receiving the
information regarding the incidents was that she suspended her son
from attending at the workplace
pending the resolution of the
problem.
[51] In light of the
above discussion, I am of the view that the applicant's claims stands
to fail. In the context of the nature
of the applicant’s claim
and the fact that she brought the claim as an individual I do not
belief it would be fair to allow
the costs to follow the results.
Order
[52] In the premises the
following order is made:
1. The applicant’s
claim that she has automatically dismissed is dismissed.
2. The applicant’s
claim arising from the alleged discrimination is dismissed.
3. There is no order as
to costs.
__________________
Molahlehi J
APPEARANCES:
FOR THE APPLICANT:
Geldenhuys C J at Law Inc
FOR THE RESPONDENT: Mr
Fred Vogel of Vogel Malan Attorneys
1
Section
5 of the LRA provides: ‘
(1)
No person may discriminate against an
employee
for exercising any right
conferred by
this
Act
.’
2
See
Rochelle le Roux et al
Sexual
Harassment in the Workplace
(LexiNexis,
Butterworth’s 2005) page 19.
3
[2007] ZALC 90
;
[2008]
5 BLLR 428
(LC).
4
Act
no 26 of 2000.
5
(2005)
12 BLLR 1172
(LAC).
6
(1999)
20
ILJ
1718
(LAC), at paragraph [32].
7
See
State Information Technology Agency (Pty) Ltd v Pasela Johannes
Sekgobela soon to be reported case of the LAC under case number
J53/08,
Viney
v Barnard Mellet Security
(
Pty
)
Ltd
( JS 14/05)
(2007)
ZALC 102
( 20 December 2007), SS Maimela v University of South
Africa( JS 1255/0
(2009) ZALC 52(LC)
and
Van
der Velde v Business & Design Software
(
Pty
)
Ltd
& another
(2006)
27
ILJ
1738
(LC).