About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2012
>>
[2012] ZALCCT 42
|
|
Sanlam Life Insurance Ltd v Commission for Conciliation Mediation and Arbitration and Others (C507/2011, C530/2011) [2012] ZALCCT 42 (19 October 2012)
11
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH
AFRICA, CAPE TOWN
JUDGMENT
Reportable
case no: c507/2011 C530/2011
In
the matter between:
sANLAM
LIFE INSURANCE LIMITED
.............................................................
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
........................................................
First
Respondent
COMMISSIONER
STEPHEN BHANA N.O
......................................
Second
Respondent
HILTON
STEPHEN CROY
.
..................................................................
Third
Respondent
Heard:
June 15 2012
Delivered:
19 October 2012
Summary:
Application to review an arbitration award; process related grounds
considered in respect of failure to consider ‘material
evidence’
JUDGMENT
Rabkin-Naicker,
J
[1] Mr Hilton Stephen Croy (Croy), a
business Manager at Sanlam Life Insurance Limited submitted a
grievance to his management on
the 13
th
September 2010.
His formal complaint read as follows:
“
Dear Jack and Kobus,
Incident in the Sanlam private suite
on Saturday 11 September 2010
I refer to our conversation of
Saturday evening. I would like to lodge a formal complaint against
the persons; Pierre Jordaan, the
suite manager, Sakkie Vermeulen,
advisor with the Tygerberg unit and Johan Kotze, bar assistant. The
background to the incident
as well as the actions or mission (sic)
which constituted the incident and which formed the basis of my
complaint are as follows:
Background to the incident
The incident occurred in the Sanlam
private suite after the match between Western Province and Leopards.
During the course of the
afternoon I met and had discussions with
five guests of the adjacent SIM suite and I was keen to introduce
them to some of my advisors.
As a result I invited them to join me at
the Sanlam suite after the match and they acquiesced. The group
included three females
and two males. Two of the three females are
full time employed of SIM.
Action or omissions
Pierre and Johan generally treated my
invitees with hostility, in stark contrast to the warm reception
other guests received from
them.
Johan insulted the group with the
following remark, as jy nie n’ ding bu jou huis eet of drink
nie, moet dit nie in die
losie kom soek nie.
The female guest, who is not an
employee of SIM, regurgitated on the floor at the back of the suite.
I was visiting the loo at
the time and on my return to the suite I
was confronted by an emotional outburst from Pierre about the
incident, who accused
me in the presence of all guests of bringing
the Sanlam box into disrepute by bringing those people here,
obviously unaware that
two members of the group were SIM employees.
I repeatedly appealed to Pierre to keep his voice down and to calm
down to no avail.
Pierre shouted loudly to vent his frustration at
what transpired and wanted to know from me who would clean up the
mess.
I went over to the area pointed out
by Pierre and after careful inspection discovered a small area of
what looked like a clear
fluid on the floor. One of the male guests
of the group took a serviette and wiped the floor clean, after which
my invitees left
the suite.
Sakkie Vermeulen then confronted me in
an aggressive and disrespectful manner. Throughout the event Sakkie
had made remarks about
the incompetence of black players in the
National Springbok Squad. Pierre and Johan consumed alcohol
throughout the afternoon behind
the counter and in full view of
guests. I am not sure whether the aforementioned behaviour was
motivated by racism as my invitees
were non-white, or whether the
offenders were under the influence of alcohol, or whether it was
motivated by some other cause altogether.
I trust the appropriate
action will be taken and will be pleased to provide any assistance in
this regard.”
[2] The upshot of an investigation
launched by the Sanlam managers, Jaco Coetzee and Kobus Swarts, which
involved seeking statements
from all the other persons present in the
Sanlam box and a further statement from Croy himself was a shock to
Croy. In a notice
dated 28 September 2010, Croy was charged with the
following:
1“MISCONDUCT: unprofessional
conduct
, in that on 13 September 2010 at the Sanlam Personal
Finance Hospitality Suite at Newlands Rugby stadium you:
1.1 invited and allowed employees from
SIM and their guests , who’s behaviour caused discomfort and
embarrassment for guests
in the SPF suite, into the SPF suite;
1.2 made racist and derogatory remarks
about Sanlam, Sanlam management and towards the bartenders of the SPF
hospitality suite and;
acted inappropriately when the
bartender of the hospitality suite indicated that certain behaviour
of yourself and the individuals
you invited is unacceptable to
other guests as well as when the bartender indicated that he will
close the suite at a specific
time.
The incident occurred in the presence
of Sanlam Office staff, Sanlam financial Advisors as well as Sanlam
external clients and caused
great discomfort and embarrassment to the
parties present as as a result brought Sanlam’s name and image
in disrepute.
2:
Unprofessional conduct
, in
that you on 21 September 2010 made uncalled and inappropriate remarks
towards Ms Danielle Esterhuizen and during same time
touched her
inappropriately. The incident caused a great discomfort and
embarrassment to Ms Esterhuizen.
Note that these allegations are very
serious and if proved, could have an impact on your contract as
Business Manager with Sanlam
Financial Advisers.”
[3] Croy pleaded not guilty to both
charges and after a disciplinary hearing held on the 7 and 12 October
2010, was dismissed with
one calendar months’ notice, effective
30 November 2010. I note that in the later arbitration proceedings,
it was admitted
by the Chairperson of the Disciplinary Hearing. Mr H.
A. Bredenkamp (Bredenkamp) that that there was evidence before him in
the
disciplinary proceedings to the effect that the following words
were uttered in a conversation between Vermeulen and Jordaan in
relation to those invited into the box: “bobbejane” and
“kaffers”.
[4] In his “verdict”
Bredenkamp made the following findings, among others, in regard to
the First Charge. The emphasis
is his own:
“
In his argument in the hearing
Mr Croy made explicit mention of the fact that it is “
the
culture of black people to be loud. They simply do not speak softly”.
I accept this stated fact by Mr Croy and I accept his argument that
other cultures should respect and accommodate that. I would,
however,
also expect from Mr Croy, as an intelligent individual, to know
that
the loudness of the black people is not shared by other cultures
people is and that black
people must also respect and accommodate the other side. To my
judgment he
should therefore
have
realised
that they were too loud
in
the Sanlam box and
it was
his responsibility
, as the
inviter of this party, to ensure that they behave in a dignified
manner. To all accounts he did not do anything about this.
Fact
is that he allowed them to have fun and overstretch the tolerance of
the guests in the Sanlam box
.”
“
I also attach weight to the
statement and testimony of Ms Reinette Loots as to her experience and
that of her client. She was very
explicit that the party arriving
from the SIM box was loud to the extent that she and her client could
not hear each other. She
also testified that one of the ladies of the
party joined her and her client and insisted that they sing for her
as it was her
birthday. Ms Loots testified that they found this very
interruptive and stated that she was of the opinion that the members
of
the party simply did not think or realise or consider that there
were actually people entertaining the guests on a professional
level.
To my judgment it is a fair assumption that Ms Loots regarded the
party as inconsiderate to the other people in the box.
I regard it as
a fair assumption that she and her client was disgusted.”
“
To my Judgment the crux of
charge 1 is the fact that Mr Croy, to his own admission, accused Mr
Jordaan that he distinguishes between
guests on the grounds of race
and then Laboured the issue. To my further judgment this is
unprofessional conduct to the definition.”
[5] Although I was informed by the
legal representative of the the Applicant that there was no need for
the court to read those
parts of the record dealing with the racism
charge for purposes of the review, I chose not to follow the advice,
in an effort to
contextualise the case before me.
[6] After lengthy arbitration
proceedings, the Second Respondent (the Commissioner) made the
following Award:
“
81. The applicant’s
dismissal was substantively unfair.
82. The respondent, Sanlam Life
Insurance Limited, must reinstate the applicant retrospectively to 1
December 2010 under the same
terms and conditions that prevailed
prior to his dismissal including his share options. The applicant
must report for work by no
later than 18 July 2011.
83. The respondent must pay the
applicant the equivalent of what he would have earned for the period
between 1 December 2-010 and
15 July 201. Based on the applicant’s
remuneration stated at arbitration this amounts to R398 124.97
(R637 000.00/12x
7.5 months) minus the applicable tax and must
be paid to the applicant by no later than 31 July 2011.”
Grounds of review
[7] In the review proceedings before
me, the company has focused on the Commissioner’s primary
finding on the Second Charge.
On Esterhuizen’s version this
charge concerned the allegation that Croy had touched her buttock
with an open hand. The incident
had occurred, she testified, during a
conversation which took three or four seconds. On being asked by the
Commissioner whether
there was pressure from the hand, she said there
was. The finding is contained in paragraph 79 of the Award as
follows:
“
79. The final allegation was
that Croy touched her buttock. The two versions differ materially in
respect of what time the incident
had occurred, where the files were
and what exactly happened. Croy’s version is that he patted her
hand whilst holding it
with his other hand. Again Esterhuizen’s
version stands uncorroborated in that not even the people, whom she
claimed she
had spoken to immediately after the incident, were called
to testify. It would have lent credence to her claim had her PA come
to testify and at least corroborated the time of day, their
positions, etc. Croy’s version of not needing the files after
the interview, that he was in a hurry before the interviews and had
more time after the interviews was not rebutted. Even Esterhuizen
admitted that the conversation was at most 60 seconds, which makes
Croy’s version more credible. It is commonly accepted
that
sexual harassment is subjective from the perspective of the alleged
victim. The evidence however must be assessed objectively
and
unemotionally. In this instance the evidence does not show, that on
the balance of probabilities, that the incident had occurred
as
described by Esterhuizen. The onus of proof is on the respondent. The
applicant need not to prove that he had not done what
he was accused
of having done.”
[8] The Applicant has sought to rely
on the
Southern Sun Hotel
Interests
1
case in this review application. In
that case, Van Niekerk J had this to say:
“
In summary, s 145 requires that
the outcome of CCMA arbitration proceedings (as represented by the
commissioner's decision) must
fall within a band of reasonableness,
but this does not preclude this court from scrutinizing the process
in terms of which the
decision was made. If a commissioner fails to
take material evidence into account, or has regard to evidence that
is irrelevant,
or the commissioner commits some other misconduct or a
gross irregularity during the proceedings under review and a party is
likely
to be prejudiced as a consequence, the commissioner's decision
is liable to be set aside regardless of the result of the proceedings
or whether on the basis of the record of the proceedings, that result
is nonetheless capable of justification.”
2
[9] The award is susceptible to be set
aside on Applicant’s submission, for “process-related”
unreasonableness.
The Commissioner, it argues, committed a gross
irregularity in the conduct of the arbitration proceedings for the
following reasons:
9.1 He failed to have regard for
Esterhuizen’s undisputed evidence that immediately after the
incident she contacted Swarts
to report the incident, mentioned it to
her personal assistant and contacted her husband who immediately
travelled from Malmesbury
to Bellville to counsel her.
9.2 Although the Commissioner recorded
Swart’s evidence that Esterhuizen had sent him an SMS whilst he
was in a board meeting
and requested that he meet with her urgently,
that Swarts met Esterhuizen in her office and that Esterhuizen was
tearful when she
relayed how Third Respondent had touched her
inappropriately, he totally disregarded that evidence in concluding
that Esterhuizen’s
version was uncorroborated;
9.3 He failed to have regard for
relevant circumstantial evidence that supported Applicant’s
version of the incident that
Applicant’s access records did not
exclude the conclusion that the incident as relied upon by Applicant
took place at the
time that Esterhuizen alleged it took place.
9.4 His conclusion that because
Esterhuizen admitted that the conversation was at most 60 seconds,
Croy’s version was more
credible, is devoid of any explanation
and is logically not sustainable.
9.5 He failed to assess Croy’s
reliance on his good character in the context of Croy’s
inappropriate and sexist comments
made to Applicant’s employee
Mandy Khan’s sister.
Evaluation
[10] It is necessary to consider the
above submissions in turn, taking the record of the proceedings into
account. It was indeed
undisputed that Esterhuizen SMS’ed
Swarts to request him to meet with her urgently. The evidence given
by Esterhuizen was
that the alleged touching incident had occurred at
about 13h.22 She testified that at about 14h.00 she called her
husband and that
he had arrived about 50 minutes later. At 14h.30 she
SMSed Mr Swarts, having discussed the matter with her husband on the
telephone,
and decided ‘for the option to allow my line manager
to sort it out.” She did not request her husband to come to her
workplace, and the record reveals that he saw other employees while
he was there.
[11] As regards being tearful,
Esterhuizen testified to crying at about 14.10. At 15h.00 she had an
appointment with a marketing
specialist and Swarts only came to see
her at 16.15. By 17.00 she had sent Swarts the email. None of the
people who she allegedly
spoke to immediately and soon after the
incident were called to corroborate her evidence Swarts in contrast
testified that he could
immediately see the lady was upset and she
was tearful when he came in to see her 16:15. It was Esterhuizen’s
evidence that
when Swarts phoned her the next day after receiving her
email he said that: “we can add it to a charge that was running
at
the same time” and that “I must make a decision how
formal I want to handle this incident.” She called him the
next
day, and according to her testimony said: “ I really do
appreciate him wanting to take into account how I feel but I
want him
to handle it and I’m comfortable with which way it goes.”
[12] Under cross- examination, it is
noteworthy that Esterhuizen stated the following: “…okay
to put on record clear
my intention was not for Mr Croy to lose his
job. My intention was to have this conduct stopped to put me in a
position to do my
job without having to look over my shoulder all the
time and wonder about ulterior motives.”
[13] Given the above, I do not find
that the Commissioners award is out of kilter with the evidence
before him in relation to Swarts’
testimony. I am unconvinced
that his evidence was not given appropriate weight by the
Commissioner or indeed that the evidence
highlighted by the Applicant
can be considered material to his ultimate conclusion in the Award.
[14] The Commissioner’s
conclusion regarding the 60 second long conversation between
Esterhuizen and Croy is submitted to
be devoid of logic and
explanation by the Applicant. However, Croy testified (as recorded in
the Award) that the conversation with
Esterhuizen which the touching
incident had allegedly , occurred before interviews he had scheduled.
Paragraph 55 of the Award
reads as follows.
“
Croy, in dealing with the
second allegation of sexual misconduct, explained that he had
interviews scheduled on 21 September as
part of a recruitment
process. The first interview was from 11h30 to 12h30 and the second
scheduled for 12h30 to 13h30. He was
a few seconds late for the first
interview which was held at the at the recruitment consultant’s.
(Mr Jonk) office in the
regional office area. As he passed
Esterhuizen she called him and asked for the list of names. He turned
back to her desk and greeted
her with his right hand i.e. shook her
hand with his. In jest he replied that she must put his name, her
name and her PA’s
name on the list. Whilst speaking to her he
patted her right hand (which he still held in his right hand) with
his left hand and
then he released her right hand. He further told
Esterhuizen that he was running late and that he would send her names
later. Croy
demonstrated how he did this whilst holding the
interviews files under his left armpit. He added that her PA could
see the whole
incident. Croy denied that he had harassed
Esterhuizen.”
[15] Croy went on to testify that he
was not in a hurry after the interview and if he had talked to her
after it, as she alleged,
he would not have been in a rush and could
have sorted the list out with her there and then. The Commissioner’s
finding on
this aspect is therefore not devoid of logic and if read
with the award as a whole, does not lack explanation.
[16] The submission that the
Commissioner failed to have regard to the circumstantial evidence
that the company’s access cards
did not exclude that the
alleged incident took place at the time Esterhuizen alleged, is
without merit. The access card records
did not exclude either
Esterhuizen’s or Croy’s version.
[17] Finally, the Applicant relies on
the Commissioner’s failure to take into account the evidence
given by Mandy Kahn that
Croy had mentioned to her sister in the box
at Newlands, that if he wasn’t married he ‘would pursue
or wouldn’t
mind to pursue” Mandy Kahn. Kahn’s
evidence as to the impact of this was: “ I first felt that he
didn’t
know my sister, why would he say that to her”. I
said to my sister “…hy ken nie eers vir jou ie, hoekom
sal
hy nou met nie eers vir jou nie, hoekom sal hy nou met ju sulke
goed praat? But I was there, I overheard it, she didn’t tell
me
that that’s what he said.” There cannot be any basis to
consider this evidence as material to the outcome of the
Award.
[18] In
Herholdt
v Nedbank Ltd
3
the Labour Appeal Court has confirmed
that an award is reviewable on grounds of process related
unreasonableness. Dealing with the
threshold for interference in the
case of a gross irregularity, the LAC stated as follows:
“
There is no requirement that
the Commissioner must have deprived the aggrieved party of a fair
trial by, misconstruing the whole
nature of the enquiry. The
threshold for interference is lower than that,
it
being sufficient that the
Commissioner
has failed to apply his mind to certain of the material facts or
issues before him, with such having potential for
prejudice and the
possibility that the result may have been different.”
(my emphasis)
4
[19] In my judgment, the test as
enunciated above, when applied to the matter before me, will not
succeed in disturbing this award.
I do not find that the Applicant
has shown, even on this lower threshold, that evidence material to
the outcome of the award was
ignored by the Commissioner or that he
failed to give appropriate weight to material evidence, or issues
having potential for prejudice
or a different outcome. The award is
sustainable on the totality of evidence before the Commissioner.
[20] It stands to be emphasized that
care should be taken not to water down the requirement that
irregularities (whether latent
or patent), vitiating an award, are
gross in nature and must have a material bearing on the outcome of an
award. On my reading,
neither
Southern Sun Hotel Interests,
nor
Herholdt
, sanction such a departure from the law on
reviews. If these principles are jettisoned there will be a floodgate
situation, with
the result the distinction between appeal and review
in our courts will simply be obliterated.
[21] At the hearing of this matter, I
ruled that I will decided on an application to make the Award an
order of court, under case
number C530/2011, once I had decided the
review application. I now grant the order sought in that matter.
[22] In as far as costs are concerned
in the review application, I see no reason why the costs should not
follow the result. I make
no costs order in as far as the application
in terms of section 158(1)(c) is concerned.
[23] In all the above circumstances, I
make the following order:
1. The review application under case
number C507/2011 is dismissed.
2. Applicant is to pay the costs in
the review.
3. The application under C530/2011 is
granted.
________________
Rabkin Naicker J
Judge of the Labour Court
Appearances
Applicant: Adv. Guy Elliot instructed
by Maserumule Inc
Third Respondent: E J Simons of Simons
Van Staden Attorneys
1
Southern
Sun Hotel Interests (Pty) Ltd v CCMA &others (2010) 31 ILJ
452(LC)
2
At
paragraph 17
3
(2012)
23 ILJ 1789 (LAC)
4
At
paragraph 39