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[2014] ZALCJHB 23
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Supreme Poultry (Proprietary) Limited v Commissioner for Conciliation, Mediation And Arbitration and Others (JR 1212/2011) [2014] ZALCJHB 23 (24 January 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no.: JR 1212/2011
DATE:
24 JANUARY 2014
In
the matter between:
SUPREME
POULTRY (PROPRIETARY)
LIMITED
.........................................................
Applicant
And
THE
COMMISSIONER FOR CONCILIATION, MEDIATION AND
ARBITRATION
…...................................................................................................
First
Respondent
MOTAKE
PEHELO,
N.O
.................................................................................
Second
Respondent
MATTHEE,
JOHAN
WILHELM
...........................................................................
Third
Respondent
Heard: 9
2014
JUDGMENT
WILKEN,
AJ
Introduction
[1]
This is a review in which the Applicant seeks to review and set aside
the arbitration award of the Second Respondent (“Commissioner”)
in case FS 6650/10 dated 15 May 2011. The application is not opposed.
[2]
In his award, the Commissioner found that the dismissal of the Third
Respondent (“the Employee”) was procedurally
fair, but
substantively unfairly and awarded the Applicant compensation of 10
months’ salary which amounts to R261 250.00.
[3]
In its notice of motion, the Applicant sought the review and setting
aside of the award of the Commissioner a stay of the execution
of the
Commissioner’s award and that its costs be paid by anyone who
opposes this application.
[4]
In the heads of argument filed, the Applicant seeks not only to the
review and setting aside of the arbitration award, but an
order to
the effect that the dismissal was substantively fair, ie.that this
Court exercises its jurisdiction to finally determine
the matter and
not to remit the matter back to the First Respondent to be heard by
another Commissioner.
Background
[5]
The Employee was dismissed following a disciplinary hearing arising
from a complaint that he had sexually harassed a subordinate.
The
Employee was employed as the Production Manager of the Applicant and
it is alleged that the Employee sexually harassed a supervisor,
one
Buleni Ndlovu but did not report to him directly.
[6]
The complaint of sexual harassment arose from two telephone calls, it
being common cause that the Employee had made the two
telephone calls
to Ndlovu on 30 August and 1 September 2010. It was the Applicant’s
case that Ndlovu had reported the telephone
discussion of 30 August
2010 the following day to a fellow employee who persuaded her to
report it to a Trainee Manager who reported
the complaint to the
Operations Director. No action was taken after the first report, but
after the second telephone call on 1
September, Ndlovu was encouraged
to lodge a formal complaint which she did on 9 September 2010.
[7]
It is the Applicant’s case that the Employee made lurid and
sexually provocative statements to Ndlovu during the telephone
conversations on 30August and 1 September 2010. The Employee on the
other hand denies that he made any sexually provocative suggestions
to Ndlovu during the aforesaid two telephone conversations.
[8]
When lodging her grievance, Ndlovu prepared a detailed statement of
the events surrounding her complaint. At the conclusion
of the
disciplinary hearing, Applicant dismissed the Employee having found
the Employee guilty of sexual harassment and confirmed
the dismissal
at the internal appeal lodged by the Employee. The Employee then
referred a dispute concerning his unfair dismissal
to the CCMA.
Arbitration
proceedings
[9]
The Applicant called three witnesses at the arbitration proceedings
and the Employee, including himself, called five witnesses.
The only
witnesses who were able to give direct testimony as to the telephone
conversations which took place between Ndlovu and
the Employee on 30
August and 1 September was Ndlovu and the Employee himself. The
versions given by Ndlovu and the Employee as
to the content of the
conversations were diametrically opposed, Ndlovu contending that the
Employee had made sexual advances to
her during these conversations,
whilst the Employee vehemently denied having made any such advances
and contending that Ndlovu
on each occasion attempted to borrow money
from him.
[10]
Ravin Parkin, a Supervisor at the Applicant, testified that Ndlovu
told him that she was uncomfortable with a call she had
received from
the Employee on 30 August, and did not know what to do. He testified
that Ndlovu suggested that the Employee had
spoken to her in a sexual
manner and that her boyfriend was getting angry. He recommended that
the Employee speaks to a trainee
Supervisor concerning the incident,
David Gibbon-James (”James”). James testified that the
Employee reported the telephone
call of 30 August to him on 1
September after having been referred to him by Parkin. He testified
that she appeared to be visibly
shaken and that he immediately
reported the matter to Jack Searle (“Searle”), the
Operations Director who adopted the
approach that they should see how
matters progress. James further testified that Ndlovu reported a
further conversation to him
on 1 September 2010, and whilst he did
not ask what the call was about, Ndlovu said that it was of a sexual
nature. He reported
that to Searle and was not involved any further
in the matter.
[11]
The Employee testified that he called Ndlovu on 30 August as he was
unable to speak to Ndlovu when she approached him in his
office on 30
August, which he contends was the second time she approached him that
day. He testified that she told him earlier
that day that her sister
had “lost” all her money, ie.Ndlovu’s August
salary. This is in fact common cause. He
testified that he called her
back to enquire from her why she wanted to see him again, and she
testified that she wanted to borrow
money from him. He denied that he
made any comments of a sexual nature or with sexual overtones during
the discussion on 30 August
2010.
[12]
In respect of the telephone call of 1 September 2010, the Employee
testified that he called her in response to a “please
call me”
and that he was with his wife when he did so. He once again denied
having made any statement of a sexual nature
or making any sexual
overtones and contended that the purpose of the call was to prevail
upon him to lend her money.
[13]
The Employee’s wife confirmed that she was present when the
Employee took a call from Ndlovu on 1 September and that
she did not
overhear him making any statement of a sexual nature or with a sexual
overtone.
The
Employee also called Magdalena Thabang, his wife, Stuurman Mogotsi
and Searle to testify.
[14]
Searle’s evidence was of a procedural nature but Thabang gave
evidence that Ndlovu had jokingly suggested to the Employee
that
should the Employee arrange a job for Ndlovu’s sister she would
‘I will put myself on the table. Mr Matthee would
choose’.
[15]
Mogotsi appears to have been a reluctant witness and insofar as any
harassment of Ndlovu was concerned, was not able to offer
any direct
evidence. His evidence, all of which was hearsay, painted the
Employee as one who had sexual discussions with employees
on the one
hand, but on the other hand portrayed him as a very harsh manager
whom all employees feared. His evidence needed to
be approached with
great caution as Mgotsi worked night shift whilst the Employee worked
day shift.
[16]
Regrettably the record does not contain a transcript of Ndlovu’s
evidence in chief nor under cross-examination. That
part of the
mechanical recording appears to have gone missing and the Applicant
transcribed that section of the Commissioner’s
hand written
notes which recorded her evidence in chief and cross-examination. No
explanation was tendered or proffered why no
attempt was made to
reconstruct the record as one would normally do in instances where
the mechanical recording is no longer available.
[17]
When Applicant’s representative at the review, Mr Hutchinson,
was called to explain why no steps were taken to reconstruct
the
record, and stated that the Applicant wished to proceed with the
review on the basis of what was before the Court.
Arbitration
award
[18]
The arbitration award is lengthy and whilst the Commissioner at the
outset expresses his wish not to repeat the details of
the evidence
of the parties and to provide only brief reasons, he devotes some 26
pages summarising the evidence and arguments
presented, and
furnishing his reasons for his award.
[19]
The arbitrator correctly identified the task he had to undertake,
namely determining whether the dismissal was procedurally
and
substantively unfair. He concludes that the dismissal was
procedurally unfair and relies on the concession made by the Employee
under cross-examination that he was given a fair hearing as well as
that the appeal granted cured any procedural irregularities
which may
have presented itself during the disciplinary hearing.
[20]
Insofar as the substantive fairness is concerned, he identifies
correctly his duty to determine whether sexual harassment had
occurred. He also appreciated that he was faced with two
contradicting versions as to what occurred on 30 August and 1
September
when the Employee called Ndlovu.
[21]
Having recognised that he is faced with two conflicting versions, the
Commissioner proceeded to examine the probabilities,
but in doing so
failed to appreciate the underlying task at hand when dealing with
two irreconcilable versions.
1
[22]
The Commissioner’s starting point in his analysis was that both
versions were plausible. It appears that such statement
is made in
recognition of the fact that he is faced with two irreconcilable
versions and that he has to conduct an enquiry as to
which version to
accept having regard to the credibility of the factual witnesses,
their reliability and the probabilities.
2
[23]
The Commissioner finds that it was probable that Ndlovu was upset
with the Employee for not assisting her sister to obtain
a job and
that Ndlovu had approached the Employee to borrow money from him. The
Court preferred the version of the Employee as
to what the content of
the telephonic discussion on 1 September was based on finding the
Employee’s wife, which supported
the Employee’s version
that there were no sexual overtones in the discussion on 1 September,
was more credible, and that
Ndlovu’s evidence concerning her
financial position as not credible. He then proceeds to find ‘…
in light of
the above, that it is probable that Ndlovu falsely
accused the Applicant of sexual harassment’.
[24]
Inherent to this finding must be that the Employee’s version
was preferred to that of Ndlovu in relation to the content
of the
discussions on 30 August and 1 September. In other words, that the
Employee had not made any sexual utterances as contended
for by
Ndlovu. However, the conclusion by the Commissioner immediately after
finding that Ndlovu, on the probabilities, had falsely
accused the
Employee of sexual harassment is ‘Connected to the above
conclusion is the following probable conclusion: the
Applicant indeed
made sexual advances, but only because Ndlovu led him on or consented
or created the impression that she consented’.
The
Commissioner then concludes:
‘
I
accept Stuurman’s evidence that the Applicant used to make such
remarks to female’;
‘
The
Applicant was therefore not being frank on this point. His denial was
probably meant in protecting his marriage’. and
‘
Finally,
my conclusion regarding the question as to whether sexual harassment
took place is that there was consensual love or a
sexual relationship
between the Applicant and Ndlovu. It was a consensual quid pro quo
relationship’.
[25]
The Commissioner’s findings are irrational and irreconcilable.
In essence, the Employee was dismissed for having made
unwelcome and
unwarranted sexual statements to Ndlovu on 30 August and 1 September.
The Commissioner in essence finds that he prefers
the Employee’s
version that this did not occur, but on the other hand finds the
Employee’s denial of such statements
was probably made to
protect his marriage, and that they were made because Ndlovu had not
objected thereto or had consented to
him having such discussions with
her.
[26]
In finding as he did, the Commissioner committed gross misconduct in
the conducting of the proceedings in that he failed to
undertake the
enquiry he had to, namely did any sexual harassment occur on 30
August and 1 September, or not? It appears from the
summary of the
evidence advanced and his reasoning that the Commissioner failed to
appreciate how the peripheral areas of dispute
between the parties
concerning their relationship impacted upon him in drawing
conclusions that are not sustainable in fact or
law.
[27]
Mr Hutchinson argued that the Commissioner committed a gross
irregularity by introducing a defence which was not articulated
by
the accused party which, in essence, is what the Commission
inadvertently had done, by finding the Employee had made sexual
advances to Ndlovu, but did so because she had led him on, or had
consented thereto.
Analysis
[27]
Applying the now well-established test when reviewing a decision of a
Commissioner, regard must be as to whether the decision
of the
Commissioner is a decision that he could not reasonably reach.
3
The application of this test has now been further amplified and
explained by the Supreme Court of Appeal
4
as well as the Labour Appeal Court
5
.
It is clear that the Commissioner’s award is only reviewable if
the defect falls within one of the grounds mentioned in
Section
145(2)(a) of the Labour Relations Act, Act 66 of 1995 and amounts to
an unreasonable result.
6
[28]
The Commissioner committed gross misconduct in conducting the
proceedings by not properly evaluating the material before him.
He
failed dismally in resolving the irreconcilable versions before him,
in assessing the probability the reliability and credibility
of the
respective versions by concluding that the Employee did not sexually
harass Ndlovu because she consented thereto. This is
one of those
cases where the misconduct of the Commissioner in dealing with the
evidence is such that he failed to undertake the
task entrusted to
him and that the conclusion for that reason is one that no reasonable
Commissioner could come to.
[29]
Having said that, it is not possible for this Court to substitute the
decision as sought for by the Applicant in these proceedings,
as a
material part of the record has not been placed before this Court,
namely the evidence and cross-examination of Ndlovu. With
regards
to the Commissioner’s notes, being the notes the Applicant
confined itself to in arguing this review, this Court
is not in a
position to conduct the exercise required of it to assess the
credibility, reliability and probabilities of the two
irreconcilable
versions.
Wherefore,
I make the following order:
1.
the arbitration award handed down by the Second Respondent in Case
FS6650/11 dated 15 May 2011 is hereby reviewed and set aside;
2.
the matter is referred back to the First Respondent to be heard by a
Commissioner other than the Second Respondent.
Wilken,
AJ.
Acting
Judge of the Labour Court of South Africa.
24
January 2014
FOR
THE APPLICANT : Advocate l Hutchinson
Fluxmans
Inc.
1
SFW
Group Limited and Another v Martell et CIE and Others
2003 (1) SA 11
(SCA) at para 5.
2
Although
this is not what he explicitly states, appears to be what he
believed was the case.
3
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
,
2008 (2) SA 24
(CC) para. 110.
4
Herholdt
v Nedbank Ltd
(2013)
34 ILJ 2795 (SCA)
5
Goldfields
Mining SA (Pty) Ltd v CCMA and Others
(JA2/2012)
[2013] ZALC 28
(04/11/13)
6
See
Herholdt
,
para. 25 and
Goldfields
,
paras. 14 and 18.