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
>>
2014
>>
[2014] ZALCCT 34
|
|
Simmers v Campbell Scientific Africa (Pty) Ltd and Others (C751/2013) [2014] ZALCCT 34; [2014] 8 BLLR 815 (LC); (2014) 35 ILJ 2866 (LC) (9 May 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
REPORTABLE
OF
INTEREST TO OTHER JUDGES
CASE
NO: C 751/2013
In
the matter between:
ADRIAN SIMMERS
Applicant
And
CAMPBELL SCIENTIFIC
AFRICA (PTY) LTD
First Respondent
JOSEPH WILSON THEE
N.O.
Second Respondent
CCMA
Third Respondent
Heard
:
24 April 2014
Delivered
:
9 May 2014
Summary:
Sexual harassment – whether conduct
constitutes sexual harassment and whether sanction of dismissal was
fair. Review –
whether conclusion reasonable. Arbitration
process – whether leading of evidence and cross-examination via
Skype prevented
a fair trial.
JUDGMENT
STEENKAMP
J
Introduction
[1]
“
Do you want a lover tonight?”
Do these words constitute sexual harassment, uttered by an employee
to a consultant, off company
premises where both parties were staying
in a lodge? And if it does, is it dismissable?
[2]
The further question that arises in this
case is whether the hearing of evidence and cross-examination at
arbitration via a Skype
telephone link prevented a fair trial of the
issues.
[3]
These
questions arise in the context of a review application. The further
question that arises, therefore, is whether the conclusion
reached by
the arbitrator was one that a reasonable arbitrator could not
reach.
[1]
Background facts
[4]
The applicant, Adrian Simmers, is a senior
employee (an installation manager) of the first respondent, Campbell
Scientific Africa
(Pty) Ltd (CSA). He accompanied a contractor to
CSA, Frederick le Roux, and a consultant to the company, Ms C. M., to
Botswana
to survey a site in order to install some equipment for the
Botswana Power Corporation. Ms M. was employed by Loci Environmental
(Pty) Ltd. They stayed over at a lodge. All three of them had supper
together. While Le Roux was paying the bill, Simmers and M.
walked
out of the restaurant and waited in the parking lot. Simmers said to
M., “Do you want a lover tonight?”. She
made it clear
that she did not and that she had a boyfriend. He responded, “if
you change your mind during the night, come
to my room”. She
did not. He did not pursue it.
[5]
The next day, M. mentioned the incident to
Le Roux. She left for Australia. Upon his return to South Africa, Le
Roux mentioned the
incident to CSA’s managing director, Mr
Visagie. Visagie sent an email to M. apologising for Simmers’s
conduct and
requesting details.
[6]
M. replied as follows:
“
I
accept your apology and understand that Adrian’s behaviour at
times was not appropriately representative of CS Africa. My
impression of CS Africa is of professionalism and efficiency, despite
what happened. I understand that this was Adrian’s
personal
misconduct. He made some inappropriate advances to me, he was also
unprofessional in terms of his conduct about Frederick,
he said some
things to me about Frederick that were undermining and unnecessary.
I’m sure you can understand that I found
this inappropriate.
Otherwise, the experience was pleasant, and I must assure you
that I am not harbouring any ‘hard
feelings’ towards you,
Frederick or CS Africa.”
[7]
Visagie wrote to M. again and asked her for
“a short declaration on both the inappropriate advances and
unprofessional conduct
towards Frederick” to be used in a
disciplinary hearing. She responded:
“
I
found Adrian’s conduct to be inappropriate. He constantly
attempted to influence my opinion of Frederick into condescension,
saying that he was a perfectionist, that he was stubborn, that
he took too much time to do his job, that he didn’t
listen,
that he was an impossible person to work with. It was uncomfortable
for me that he (Adrian) would try to talk about Frederick
behind his
back to me.
One night after we had
dinner, Frederick was finalising the bill, and Adrian and I were
standing in the parking area. I said that
I was not tired, Adrian
suggested that we do something, to which I said (reluctantly) that we
should speak to Frederick. He refused
saying that he did not want
Frederick to know or to be involved. I then said that I was just
going to go to bed. He said that it
was difficult to be alone, that
he was lonely and asked if I wanted to go for a walk (alone with him)
or go to his room with him.
I refused, he then asked about my
boyfriend (whom I had mentioned earlier) and asked if I was in
contact with him, if it was a
serious relationship. I said yes, I
speak to him every day and [it was] serious. Adrian then asked again
if I was sure I didn’t
want to spend some time with him, to
which I refused again, and said I was just going to go to bed. He
then reiterated his offer,
saying that if I changed my mind, I could
just go to his room during the night. I again said that I was going
to bed. Frederick
then came back from settling the bill and I said
good night to them both. Overall, I felt uncomfortable with Adrian’s
conduct,
and was surprised by his advances to me, and his
disrespectful behaviour towards Frederick.”
[8]
CSA called Simmers to a disciplinary
hearing on allegations of sexual harassment, unprofessional conduct,
and bringing the name
and image of the company into disrepute. M. had
left for Australia and did not testify. The chairperson of the
hearing found that
Simmers had committed the misconduct complained of
and CSA dismissed him. He referred an unfair dismissal dispute to the
CCMA.
[9]
An initial arbitration award was reviewed
and set aside by Rabkin-Naicker J because of procedural
irregularities. It was remitted
to the CCMA where a fresh arbitration
was conducted before the second respondent (the Commissioner).
The arbitration
[10]
M. was in Australia. The arbitrator allowed
her evidence to be led via Skype. A video link could not be
established and she testified
and was cross-examined telephonically.
There were a number of breaks in transmission. There were also pauses
between questions
and answers occasioned by the Skype link.
[11]
With regard to the allegation of sexual
harassment, the arbitrator was satisfied that the conduct complained
of was relevant to
the workplace, although M. is was not an employee
of CSA and the incident occurred outside of working hours. He came to
this conclusion
on the basis that the protagonists were working
together in a remote location and were accommodated at the same
lodge.
[12]
The arbitrator further found that Simmers’s
conduct constituted sexual harassment. His finding was based on the
following
premise:
“
The
fact that the applicant had not denied that he had made the remarks
to the complainant certainly would suggest that he was aware
or
should have been aware that his remarks on the day of the incident
would not be welcome and therefore would constitute sexual
harassment. The evidence presented during the arbitration proceedings
relate to the complainant email makes it clear that the suggestions
were in fact not welcome.”
[13]
The arbitrator further found that Simmers’s
conduct was inappropriate:
“
I
find it a bit inappropriate that a stranger would approach another
person and ask whether she has a boyfriend. The complainant
testified
that even though she did not tell the applicant to stop, she had made
it clear in no uncertain terms that it was not
acceptable and that
she had blatantly refused the invitation. I therefore find that the
applicant’s proposals to Ms M.
constituted sexual
harassment in the form of unwanted verbal sexual advances.”
[14]
On the second allegation of misconduct, the
arbitrator found that Simmers’s remarks about Le Roux were
unprofessional and
could have had the effect of bringing the
company’s name into disrepute.
[15]
In determining whether dismissal was an
appropriate sanction, the arbitrator recognised that the Code of Good
Practice: Dismissal
promotes progressive discipline. However, he did
not consider the misconduct in this case “as a minor incident
that calls
for a lesser sanction”. He found that dismissal was
fair.
Evaluation / Analysis
[16]
Apart from the procedural complaint
relating to evidence by Skype, the applicant has identified the
following questions for determination:
16.1
Sexual harassment:
Can the words “do you want a lover
tonight” and “come to my room if you change your mind”
constitute sexual
harassment? Is it relevant that Simmers and M. were
not co-employees when considering the context within which sexual
harassment
takes place? And if the words “do you want a lover
for tonight”
do
in fact constitute sexual harassment, are these words sufficiently
serious to justify a dismissal?
15.2
Unprofessional
conduct and causing harm to the company’s image
:
Charge 2 is for unprofessional conduct, charge 3 for harm caused
to the company’s image. But both charges are based on the
averment that Simmers discussed the employer’s business with
colleagues and a client but no finding was made on charge 3.
The questions that arise are whether Simmers’s discussions
justified a dismissal or other punishment.
Evidence from
Australia
Was allowing the
complainant to give evidence via a long-distance call a reviewable
irregularity?
[17]
Simmers argues that he was prejudiced by
the fact that, when M. testified at arbitration, she did so over a
long-distance link by
telephone, and not in person or even by Skype
video as was initially indicated.
He
also argued that he was prejudiced by the fact that M. did not
testify at the disciplinary hearing; but that is not a relevant
factor, as the arbitration was a hearing
de
novo.
[18]
Simmers further argued that M. had the
benefit of delays, pauses, broken connections, time to compose
herself, to think of her answers,
to reconsider the questions whether
in chief or in cross-examination, and that she did not have to face
the man she had accused.
The arbitrator could also not test her
demeanour – an important factor in a sexual harassment case.
[19]
But
it must be borne in mind that these are arbitration proceedings –
designed to be informal and conducted with the minimum
of legal
formalities.
[2]
M. was in
Australia. It would have been unacceptably costly and time-consuming
for her to be flown back to South Africa to give
evidence. The
arbitrator allowed her evidence in the manner envisaged by section
138 (1) of the LRA. He conducted the arbitration
in a manner that he
considered appropriate in order to determine the dispute fairly and
quickly. Simmers was represented by counsel
who had the opportunity
to cross-examine M. telephonically. It was not an ideal situation,
but it was one that is envisaged by
the LRA. It did not prevent
Simmers from having a fair hearing. It does not constitute a
reviewable irregularity.
Errors of law and
reason?
[20]
It
must be borne in mind that an error of law or a flaw in the
arbitrator’s reasoning does not render an arbitration award
reviewable in itself.
[3]
But Mr
Ackermann
argued that the errors committed by the arbitrator rendered his
conclusion unreasonable.
Illogical and
unreasonable finding
[21]
The Commissioner found that the conduct
complained of was relevant to the workplace. He appears to proceed
from the understanding,
although it is not clear, that the employee’s
case was that the alleged misconduct was irrelevant because it did
not relate
to the workplace. This was never argued at the
arbitration, as Mr
Ackermann
pointed out.
[22]
What
was argued on behalf of Simmers was that this was an important
factor, namely, that the probabilities were that one adult had
propositioned another adult within a social context
because
it was outside the work-place. For the same reason it is certainly
relevant that there was no disparity of power and that the parties
were not co-employees. These facts all stack up in favour of
Simmers precisely because this is a sexual harassment case.
Cases of
off-duty harassment of non-employees are extremely rare
[4]
.
However, the fact remains that the conduct complained of took place
in a work-related context. A relevant factor that the Commissioner
did not take into account, is that Simmers and M. were not
co-employees and that they would probably never work together again
–
she has gone to Australia. It is also relevant that the incident was
once-off and that it occurred outside the workplace
and outside of
working hours. But all of that goes to the questions of whether it
constituted sexual harassment and whether dismissal
was a fair
sanction. it does not make the award reviewable in and of itself.
[23]
Another important element of the award is
the Commissioner’s finding that
“
the fact that the applicant
had not denied that he had made the remarks to the complainant
certainly would suggest that he was aware
or should have been aware
that his remarks on the day of the incident would not be welcome and
therefore constitute sexual harassment."
This is illogical. It
is a
non sequitur.
The
conclusion does not follow from the premise. The issue in question is
whether
the remarks by Simmers
constitute sexual harassment, not the
fact
that he made them. He admits that he did. But to say, as the
Commissioner does, that
because
Simmers made the remarks he
knew
that they constituted sexual harassment is a finding that cannot be
sustained. It is circular reasoning. This is a decision which
a
reasonable decision-maker could not have reached.
[24]
However, the question for this Court
remains whether the overall conclusion reached by the commissioner is
a reasonable one, considering
all the evidence at the arbitration in
the round.
“
Do
you want a lover tonight?” Sexual harassment or not?
[25]
The next – and probably the most
important – question to consider is whether Simmers’s
behaviour constitutes mere
sexual attention or sexual harassment.
[26]
CSA
does not have a policy on sexual harassment. The commissioner
properly had regard to the Code of Good Practice on the Handling
of
Sexual Harassment Cases
[5]
. But
there was no evidence at the arbitration that Simmers’s conduct
crossed the line where sexual attention becomes sexual
harassment.
The Code
[6]
specifies that
that is the case when --
26.1
the behaviour is persisted in, although a
single incident of harassment can constitute sexual harassment;
26.2
the complainant made it clear that she
considers the behaviour offensive; and/or
26.3
the alleged perpetrator should have known
that his behaviour was unacceptable.
[27]
The
Code
[7]
makes it clear that a
person may indicate that sexual conduct is unwelcome by walking away.
That is what M. did in this case. Simmers
did not pursue her. Verbal
conduct includes sexual advances – but it must be unwelcome,
and the alleged perpetrator should
have known that or the recipient
of the advance should have made it clear.
[28]
In this case, it is common cause that
Simmers did not persist in his overtures once M. told him that it was
unwelcome. The words
he used were certainly inappropriate, albeit
uttered “more in hope than expectation”, as Mr
Ackermann
remarked. But I agree with him that it did not cross the line from a
single incident of an unreciprocated sexual advance to sexual
harassment.
[29]
It
is true that a single incident of unwelcome sexual conduct can
constitute sexual harassment
[8]
.
But it is trite that such an incident must be serious. It should
constitute an impairment of the complainant’s dignity,
taking
into account her circumstances and the respective positions of the
parties in the workplace. This nearly always involves
an infringement
of bodily integrity such as touching, groping, or some other form of
sexual assault; or
quid
pro quo
harassment. In this case, it is common cause that the Commissioner
dealt with a single incident. He found so. Once M. made it plain
to
Simmers that it was not welcome, he backed off.
[30]
The Commissioner places much store in the
fact that the parties hardly knew each other. From this the
Commissioner concludes that
Simmers’s proposition amounted to
sexual harassment. That is not the correct question. The question is
whether his proposition,
inappropriate as it was, amounted to sexual
harassment, not whether the parties knew each other.
[31]
This is not simply a matter of semantics.
The reason for this is the nature of sexual harassment.
Misunderstandings are frequent
in human interaction. An inappropriate
comment is not automatically sexual harassment. This was a
fundamental error made by the
Commissioner one that led directly to
his conclusion that dismissal was a fair sanction. Simmers’s
comment was sexual attention,
crude and inappropriate as it may have
been. It was a single incident. It was not serious. It could only
have become sexual harassment
if he had persisted in it or if it was
a serious single transgression.
Add to this
the fact that there was no workplace power differential, the parties
were not co-employees, and the incident took place
after work. The
advance was an inappropriate sexual one, but it did not cross the
line to constitute sexual harassment. It certainly
did not lead to a
hostile work environment; in fact, M. left for Australia shortly
after the incident, and it is unlikely that
the parties will ever
work together again – they do not even work for the same
employer.
[32]
As
Justice Scalia remarked in the US Supreme Court in
Oncale
v Sundowner Offshore Serives Inc
[9]
,
applying Title VII of the Civil Rights Act
[10]
:
“
The
prohibition of harassment on the basis of sex requires neither
asexuality nor androgyny in the workplace; it forbids only behavior
so objectively offensive as to alter the ‘conditions, of the
victim's employment. ‘Conduct that is not severe or pervasive
enough to create an objectively hostile or abusive work environment
-- an environment that a reasonable person would find hostile
or
abusive - is beyond Title VII's purview.’
Harris,
510 U. S., at 21, citing
Meritor,
477 U. S., at 67. We have always
regarded that requirement as crucial, and as sufficient to ensure
that courts and juries do not
mistake ordinary socializing in the
workplace -- such as male-on-male horseplay or intersexual flirtation
-- for discriminatory
"conditions of employment."
[33]
As to the effect of the alleged harassment
on M. there is very relevant evidence which the Commissioner failed
to appreciate, namely
M.’s emails. She had time to think, and
summarise and apply her mind to what happened when preparing her
emails. In fact,
these emails were solicited by the employer. If one
has regard to the most important email, sent to Visagie at his
request on 11
June 2012, the high-water mark of M.’s complaint
is that she found Simmers’s conduct to be inappropriate
(referring,
in fact, to his comments about Le Roux); that she was
surprised by his advances; and that she felt uncomfortable with his
conduct
“overall”, including his disrespectful behaviour
towards Le Roux. She did not say that she was afraid, nor nervous,
nor threatened, nor apprehensive. In her evidence at arbitration she
could not provide a plausible explanation why she did not
include the
following allegations, raised for the first time at arbitration, in
her email:
33.1
that she was “incredibly nervous”;
33.2
that she felt insulted;
33.3
that she had put Le Roux’s cell phone
number into her cell phone in case Simmers approached her during the
night.
[34]
By failing to take this evidence into
account the arbitrator reached a decision that no reasonable
decision-maker could have reached
on the facts before him.
Sanction
If Simmers’s
conduct was sexual harassment, was dismissal justified?
[35]
I am of the view that CSA did not
establish, on M.’s evidence, that Simmer’s conduct
amounts to sexual harassment. But
even if it did, it could not
justify dismissal. In coming to the contrary conclusion, this is one
of those rare cases where the
commissioner reached a conclusion that
no reasonable arbitrator could have reached.
[36]
It is common cause that Simers did not
touch M.. His verbal conduct was crude and inappropriate, but it was
not a demand for sex.
It was an unreciprocated advance. In
blunt terms, he was “trying his luck”. It was
inappropriate but it did not justify
dismissal. The Commissioner
concludes, correctly and reasonably, that this was a once-off
incident. There was no power differential
and the parties were
together for only a brief sojourn. It did not create a hostile work
environment for M.. No reasonable commissioner,
in my view, could
have found that this incident justified dismissal as a fair sanction.
[37]
Simmer’s
conduct was inappropriate. But, given the circumstances outlined
above, a fair sanction would have been some form
of corrective
discipline including a written or final written warning
[11]
.
In coming to the conclusion that dismissal was a fair sanction, the
commissioner reached a conclusion that a reasonable
arbitrator could
not reach.
[38]
It remains to be considered whether the
other alleged misconduct – charges 2 and 3 at the disciplinary
hearing – was
proven and, if so, whether the commissioner
reasonably concluded that dismissal was a fair sanction.
Unprofessional conduct
and bringing the company’s name into disrepute
Did Simmers’s
discussions about Le Roux with M. justify a dismissal?
[39]
M. characterised Simmers’s discussion
with her about Le Roux as inappropriate and disrespectful. This
constituted misconduct.
The arbitrator reasonably came to that
conclusion. But it cannot reasonably be said to be misconduct for
which an employee can
fairly be dismissed, without any progressive
discipline being considered.
[40]
Both charges 2 and 3 refer to Simmers
discussing the business with a client (M.). But M. was not a client.
She was a consultant
to the company. On this basis the Commissioner
made a material error of fact, but I do not agree that it is
reviewable in itself.
The question remains whether his conclusion was
reasonable.
[41]
In my view, it was not. Simmers did behave
unprofessionally in discussing Le Roux’s perceived shortcomings
with a consultant
to the company. It created a bad impression in M.’s
mind – she considered it inappropriate and surprising. But her
testimony was that it did not influence her positive view of CSA. It
did not justify dismissal as a fair sanction for a first offence.
Some form of progressive discipline would have been appropriate.
Conclusion
[42]
The commissioner’s decision to allow
M. to give evidence via a Skype telephone link was not a reviewable
irregularity. It
conforms with the provisions of s 138(1) of the LRA.
[43]
The commissioner’s conclusion that
Simmers’s conduct constituted sexual harassment that justified
dismissal as a fair
sanction, on the other hand, is one that is so
unreasonable, in my view, that no other commissioner could have come
to the same
conclusion. Firstly, on the facts, the conduct did not
constitute harassment; but even if it did, it was not of a serious
enough
nature to justify dismissal as a fair sanction for a first
offence.
[44]
The same considerations apply to the
charges of unprofessional conduct and bringing the company into
disrepute. The misconduct was
not of such a nature that progressive
discipline should not have been imposed. No reasonable commissioner
could, in my view, have
come to a different conclusion.
[45]
This means that the award should be
reviewed and set aside. It would serve little purpose to remit it,
other than to occasion further
delays and costs. It is unlikely that
M. will return from Australia to testify once more. All the evidence
has been recorded and
transcribed. The Court has read and listened to
the evidence (a compact disk was provided to the Court). It is in as
good a position
as a CCMA commissioner to substitute its own finding,
especially in circumstances where the commissioner could not
physically observe
M.’s demeanour.
[46]
I am of the view that dismissal was not a
fair sanction. Simmers should be reinstated. But that does not mean
that he should get
off scot free. His behaviour was inappropriate and
unprofessional. For that he should be given a final written warning.
Costs
[47]
The applicant was represented by the
University of Stellenbosch Legal Aid Clinic. He was partly
successful, but in law and fairness,
he is not entitled to any costs.
Order
[48]
The arbitration award of the second
respondent under case number WECT 13445-12 dated 16 August 2013 is
reviewed and set aside. It
is replaced with the following award:
“
The
dismissal of the employee, Adrian Simmers, was substantively unfair.
He is reinstated retrospectively, coupled with a final
written
warning valid for 12 months.”
[49]
The final written warning is valid for 12
months from the date of this judgment.
_______________________
Anton Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Lourens
Ackermann
Instructed
by Marion Hattingh of the Legal Aid Clinic, University of
Stellenbosch.
FIRST
RESPONDENT:
Willem
Jacobs (attorney).
[1]
Sidumo
v Rustenburg Platinum Mines Ltd
[2007] 12 BLLR 1097
(CC)
;
Herholdt v Nedbank Ltd
[2013]
11 BLLR 1074
(SCA)
;
Gold Fields Mining Ltd (Kloof Gold Mine) v CCMA & ors
[2014] 1 BLLR 20 (LAC).
[2]
Labour Relations Act 66 of 1995 (LRA) s 138(1).
[3]
Nedbank
Ltd v Herholdt; Goldfields Mining South Africa (Pty) Ltd (Kloof Gold
Mine) v CCMA & ors
[2014]
1 BLLR 20 (LAC).
[4]
Le
Roux, Rycroft and Orleyn
Harassment
in the Workplace
,
page 150, footnote 38 which refers to only three cases, none of
which were in heard in the Labour Court.
[5]
GN 1357
Government
Gazette
27865,
4 August 2005.
[6]
Item 4.
[7]
Item 5.
[8]
2005 Code Item 5.3.3.
[9]
523 US 75.
[10]
Civil Rights Act
1964 USC 2000e
– 2(a)(i).
[11]
Contrast
the facts of the following cases and the sanctions imposed. In
SABC
v Grogan & Another
[2006] 2 BLLR 207
(LC),
Maepe
v CCMA
[2008] ZALAC 2
;
[2008] 8 BLLR 723
(LAC),
Mokoena
& another v Garden Art (Pty) Ltd & another
[2007] ZALC 90
;
[2008] 5 BLLR 428
(LC),
Potgieter
v National Commissioner of the SAPS & another
[2009] 2 BLLR 144
(LC)
and
Rustenburg
Base Metal Refiners (Pty) Ltd v Solidarity
(2009) 30
ILJ
378
(LC) dismissal was not considered a fair sanction. By contrast in
Gaga
v Anglo Platinum Ltd
[2012] 3 BLLR 285
(LAC),
Ntsabo
v Real Security CC
[2007] ZALC 41
;
[2004] 1 BLLR 58
(LC),
Reddy
v University of Natal
[1998] 1 BLLR 29
(LAC), and
Motsamai
v Everite Building Products (Pty) Ltd
[2011] 2 BLLR 144
(LAC)
dismissal
was considered a fair sanction. In most of these cases some form of
physical invasiveness or persistent conduct was
present.