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[2012] ZALCD 21
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Pillay v South African Post Office Ltd and Others (D 407/10) [2012] ZALCD 21 (1 March 2012)
3
REPUBLIC
OF SOUTH AFRICA
Not Reportable
the labour court of
South Africa, DURBAN
judgment
C
ase
no
. D 407/10
In the matter between:
FREDDY PILLAY Applicant
and
SOUTH AFRICAN POST OFFICE
LIMITED First Respondent
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION Second
Respondent
ALMEIRO DEYZEL N.O Third
Respondent
Heard: In chambers
Delivered: March 2012
Summary: Application for leave to
appeal against the whole judgment handed down on 15 November 2011.
______________________________________________________________________
JUDGMENT
REDDY AJ
Introduction
[1] This is an opposed application for
leave to appeal against the whole judgment handed down on 15 November
2011.
[2] The applicant raises four grounds
of appeal which I will deal with below. I do not intend repeating the
factual issues and grounds
of review raised in the main review
application as these are comprehensively dealt with in the main
judgment.
Review vs appeal
[3] The applicant submits that I
incorrectly applied the test on appeal rather than for a review in
determining the review application.
[4] A reading of the judgment reveals
a clear application of the review test as enunciated in the
Sidumo
matter. I accordingly find that there is no prospect of the Labour
Appeal Court finding that the incorrect test was applied. .
Mens rea and touchy mannerism
[5] The applicant submits that he did
not have the requisite intention to commit sexual harassment because
he was not aware that
he was touching the complainants in a sexually
overt manner.
[6] The applicant defined his touchy
mannerism to be limited to touching people on their shoulders. The
complainants did not take
offence and were not uncomfortable with his
touching them on their hands or shoulders.
[7] The other touching by the
applicant on more intimate parts of the complainants’ bodies
was the source of complaint and
discomfort. It is clear from the
evidence of the applicant that he knew that the actions complained
off were sexual in nature.
The applicant on several occasions
described himself as a reserved person and would not touch women in
that manner. The complaints
pertained to his touching them on their
breasts, thighs and pelvic area and were effected by way of touching
or brushing against,
pressing or rubbing those parts of their bodies.
These are objectively sexually overt actions. The complainants were
offended,
uncomfortable and wished that they would not be subjected
to further invasions of their personal space and dignity.
[8] The applicant did not testify that
he may have such a mannerism but was not aware of it, rather he
testified that he
did not touch them in that manner
or did not
recall touching them in that manner (my emphasis).
[9] It was a reviewable irregularity
for the commissioner to have suggested to the applicant that he may
have such a mannerism and
may not be aware of it. The applicant
denied this, nonetheless and surprisingly, the commissioner, found
that this was indeed the
case.
[10] The lack of intention to commit
sexual harassment is not established by the mere say-so of the
perpetrator. Whether he had
the necessary intention to sexually
harass the complainants must be objectively assessed. The evidence
before the commissioner
repeatedly supported the conclusion that the
applicant knew what he was doing and intended to sexually harass the
complainants.
[11] The applicant submits that the
following evidence was disregarded in the judgment:
1. The incidents with Jones happened
several years earlier;
2. It was a social occasion where
alcohol was consumed;
3. Jones was unsure whether the
touching had a sexual element;
4. A number of people were present at
the occasion.
I will deal with each in turn.
The incidents with Jones happened
several years earlier:
[12] The LAC decision of
Mzi Gaga v
Anglo Platinum Limited and Others
(unreported case number JA
21/08 and referred to in my judgment) holds that it is irrelevant
when the harassment occurred and whether
the relationship between the
complainant and the perpetrator continued at the time of the hearing.
I found no reason to depart
from this decision when deciding the
matter and I am not persuaded that the Labour Appeal Court will
arrive at a different conclusion.
It was a social occasion where
alcohol was consumed
[13] The consumption of alcohol was
irrelevant for various reasons.
[14] The applicant was touching people
inappropriately whether he consumed alcohol or not.
[15] On all the occasions that the
applicant touched Behrmann there was no consumption of alcohol. At
the year end social function
in the park when he did not protest to
female colleagues sitting on his lap whilst he sat on the swing, he
did not consume alcohol.
His behaviour on the swing was contrary to
his evidence that he is a restrained person who does not encourage
physical contact
with people.
[16] The applicant touched Jones when
alcohol was being consumed by all, if not many of, the workers. He
was not the only employee
who had consumed alcohol but he was the
only employee who touched Jones inappropriately. His touching her
inappropriately is not
justified or excused by the consumption of
alcohol.
[17] The applicant did not testify
that the consumption of alcohol diminished his ability to see right
from wrong.
[18] The applicant denied touching
people in a sexually overt manner, there was therefore no merit in
the argument that the consumption
of alcohol had in some way
influenced him to touch them or released him from any social
inhibitions. In the absence of any evidence
that he could not
remember what he did because he had consumed alcohol, the consumption
of alcohol did not remove any blameworthiness
on his part.
[19] I was further not convinced that
because two occasions were social functions where alcohol was
consumed, that the applicant
could be sexually overt with a colleague
when she was not comfortable with such attention and did not
encourage it in any way.
This Court cannot condone unwarranted sexual
behaviour in the work environment (including social functions) where
a measure of
respect and dignity is required between colleagues.
[20] There is no prospect of the
Labour Appeal Court arriving at a different conclusion in this
regard.
Jones was unsure whether the
touching had a sexual element
[21] I have dealt with this contention
in detail regarding the two occasions and three incidents that
occurred
apropos
Jones in the main judgment and I am not
persuaded that the Labour Appeal Court will arrive at a different
conclusion.
A number of people were present at
the occasion
[22] The fact that a number of people
were present does not discount the probability of the applicant
touching the complainant and
I am not persuaded that the Labour
Appeal Court will arrive at a different conclusion. .
Sanction
[23] There are no grounds in the
application for leave to appeal to persuade me that the Labour Appeal
Court will arrive at a different
conclusion in respect of sanction.
[24] In the circumstances, I make the
following Order
1. The application for leave to appeal
against the judgment handed down on 30 August 2011 is dismissed with
costs.
__________________
Reddy AJ
APPEARANCES:
None