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[2015] ZALCJHB 67
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Lepholletse v Department of Education North West Province and Another (JS172/2012) [2015] ZALCJHB 67; (2015) 36 ILJ 2359 (LC) (2 March 2015)
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REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case No:
JS172/2012
DATE: 02 MARCH
2015
Not Reportable
In
the matter between:
DR
AUGUSTA MARIA MAPHUTI
LEPHOLLETSE
..........................................................
Applicant
And
DEPARTMENT
OF EDUCATION: NORTH WEST
PROVINCE
...................................................................................................................
First
Respondent
Dr
ABE M. SEAKAMELA;
N.O
.............................................................................
Second
Respondent
Heard: 2 March
2015
Delivered: 3
March 2015
Summary:
Application for absolution from the instance at the end of the
Applicant’s case; Applicant’s claim founded
on s 60 of
the Employment Equity Act; The necessary requirements to hold an
employer liable not satisfied; Application for absolution
from the
instance granted with no order as to costs
JUDGMENT
VOYI, AJ
[1]
This
is a matter in which the Applicant seeks to hold the First
Respondent, in particular, liable for compensation and damages under
s 60 of the Employment Equity Act.
[1]
[2]
The Applicant’s case is that she was
subjected to sexual harassment by an employee of the First Respondent
and the latter
failed to act or take corrective action against the
employee concerned.
[3]
The Applicant testified in support of her
case and did not call any witnesses. At the close of the Applicant’s
case, the Respondents
launched an application for absolution from the
instance.
[4]
It
is trite that this court has the power to grant such an
application.
[2]
In support of
the application, the Respondents made reference to the established
test for absolution from the instance.
[3]
[5]
This is now my ruling in relation to the
Respondents application for absolution from the instance.
[6]
In dealing with the application, it is
necessary to refer to the relevant provisions of the EEA pertaining
to the Applicant’s
claim. Under s. 6, the EEA provides 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, birth or on
any other arbitrary ground.
(2) …
(3) Harassment of an
employee is a form of unfair discrimination and is prohibited on any
one, or a combination of grounds of unfair
discrimination listed in
subsection (1).
(4) …
(5)
…
’
[7]
Of importance to the Applicant’s
cause of action against the Respondents is s 60 of the EEA, the
provisions of which read
as follows:
‘
(1)
If it is alleged that an
employee
,
while at work, contravened a provision of this Act, or engaged in any
conduct that, if engaged in by that employee's employer,
would
constitute a contravention of a provision of this Act, the alleged
conduct must immediately be brought to the attention of
the employer.
(2) The employer
must consult all relevant parties and must take the necessary steps
to eliminate the alleged conduct and comply
with the provisions of
this Act.
(3) If the employer
fails to take the necessary steps referred to in subsection (2), and
it is proved that the employee has contravened
the relevant
provision, the employer must be deemed also to have contravened that
provision.
(4)
Despite subsection (3), an employer is not liable for the conduct of
an employee if that employer is able to prove that it did
all that
was reasonably practicable to ensure that the employee would not act
in contravention of
this
Act
.’
[8]
The
necessary requirements to be met in order for an employer to be held
liable under s 60 of the EEA were articulated by this court
in
Mokoena
and Another v Garden Art (Pty) Ltd and Another
.
[4]
These requirements emanate from the provisions of s 60 itself.
[9]
In
the first place, a contravention of the provisions of the EEA must be
brought to the attention of the employer
immediately
.
In
Ntsabo
v Real Security CC
,
[5]
it was held that this requirement would be regarded as having been
complied with when the contravention has been brought to the
attention of the employer ‘within a reasonable time in the
circumstances.’
[10]
Once the conduct alleged to be constituting
a contravention of the EEA has been brought to the attention of the
employer, the latter
is obliged ‘…
to
consult all relevant parties and [to] take the necessary steps to
eliminate the alleged conduct and comply with the provisions
of this
Act
.’
[11]
It seems to me that an employer would be
required to comply with the second part of this requirement once it
has been established
that there has, indeed, been a contravention of
the relevant provision of the EEA. It cannot be expected of an
employer to eliminate
that which has not been found to exist in the
first place.
[12]
The statutory liability under s 60 of the
EEA arises only where the employer fails to take the necessary steps
referred to in ss
2, and ‘…
it
is proved that the employee has contravened the relevant
provision
,…’.
[13]
If an employer fails to ‘…
to
consult all relevant parties and [to] take the necessary steps to
eliminate the alleged conduct and comply with the provisions
of this
Act
…’ and it is proved
that there was a contravention of the EEA, the deeming provisions
under s 60 come into play.
[14]
Having outlined the aforesaid requirements
in order for an employer to be held liable, I now turn to the case
made out by the Applicant
before this court. It was the Applicant’s
testimony that only two incidents of sexual harassment were brought
to the attention
of the First Respondent. The first that was reported
allegedly occurred in January 2008 wherein one [Mr M……],
an
employee of the First Respondent, conveyed to the Applicant that
he would like to visit her in her place of residence.
[15]
When the Applicant enquired as to the
purpose of the visit, it is alleged [Mr M…..] indicated that
it was to drink tea. On
the face of it, such a request from a
colleague does not strike one as having any sexual harassment
connotations to it. The Applicant
testified, however, that [Mr M……]
also stated that she was not living with a man, hence the request to
visit her.
[16]
I am, therefore, satisfied that this
incident would constitute an act of sexual harassment in a broader
sense. However, the incident
was only reported to the employer over a
year after it had occurred. According to the Applicant, she verbally
reported the incidents
of sexual harassment to the employer’s
officials for the first time in February 2009.
[17]
The reporting of the incident was clearly
not done
immediately
as required by ss 60(1) of the EEA. Even on a more liberal
interpretation of the term
immediately
,
the incident of January 2008 was evidently not brought to the
attention of the employer within a reasonable time.
[18]
The Applicant is a well-educated individual
who holds a PHD qualification. She testified that she was fully aware
of the First Respondent’s
protocol when it comes to the lodging
of grievances, in particular.
[19]
The
second incident of sexual harassment that was reported to the First
Respondent allegedly occurred on 6 December 2008,
[6]
while the Applicant was at her place of residence. In relation to
this incident, the Applicant testified that she received an ‘sms’
from [Mr M……..] in which it was written ‘
Porno
Images Collection with a nice viewer’
.
[20]
The Applicant testified that she confronted
[Mr M……….] regarding this ‘sms’ the
next working day
they met. In confronting him, the Applicant
testified that she asked if he was a ‘porno’ subscriber
and [Mr M……..]
answered in the affirmative.
[21]
There was no clear evidence from the
Applicant to the effect that she asked [Mr M………]
as to why he had sent
her the ‘sms’ in question. In my
view, the Applicant’s evidence was simply unsatisfactory in
relation to the
incident of the ‘sms’.
[22]
Even after having confronted the alleged
perpetrator of sexual harassment, the Applicant did not immediately
report the incident
to her employer. According to her evidence, she
only did so verbally in February 2009.
[23]
If one considers the Applicant’s
present stance that she considered the alleged ‘sms’ to
be a serious act of sexual
harassment, it cannot be said that she
reported the incident to the employer within a reasonable time.
[24]
I am equally not persuaded that the
Applicant has ‘…
proved that
[Mr M……….] has contravened the relevant
provision
…’of the EEA. The
alleged ‘sms’ was not produced as evidence. No
explanation was tendered in this regard.
[25]
Only an affidavit purportedly deposed to by
the Applicant was tendered in evidence. This affidavit was not signed
by the Applicant
and it simply recorded the following:
‘
I’ve
seen the message that was send by [Mr M….] on the 06-12-2008
to Mrs [L…….] that was written porno
images collection
with nice viewer, but it could not avail the other text below (the
2
nd
paragraph)
’
[26]
There was equally no evidence as to the
mobile number from which the ‘sms’ was received and that
such number belonged
to [Mr M……..]. It is, accordingly,
my finding that the Applicant has failed to prove that there was a
contravention
of any of the provisions of the EEA by an employee of
the First Respondent, namely ]Mr M…….].
[27]
The Applicant reported the incidents of
inter alia
sexual harassment to the First Respondent in writing on 23 September
2009.
[28]
On the Applicant’s own evidence, the
First Respondent scheduled various meetings with the relevant parties
in November 2009
and after the incidents of sexual harassment were
brought to its attention in writing.
[29]
In these meetings, the Applicant and [Mr
M………] were interacted with. In the bundle of
documents presented by
the parties, there is even a letter that was
written by [Mr M……….] in response to the
allegations levelled
against him. There was clearly an engagement
with the relevant parties concerning the allegations of sexual
harassment.
[30]
Following the meetings convened, the
Applicant states that she was informed by one [Mrs Y……]
(a senior employee of
the First Respondent who was in charge of the
formal process to look into the Applicant’s grievance) that a
decision had
been taken not to pursue the matter any further due to
lack of evidence.
[31]
It is clear to me that the First Respondent
did consult with all the relevant parties after the incidents of
sexual harassment were
brought to its attention in writing by the
Applicant. According to the Applicant, the First Respondent did not
pursue the matter
any further due to lack of evidence.
[32]
The Applicant also testified that the
formal meetings aimed at getting to the bottom of the sexual
harassment complaints were instead
used as a platform to raise
irrelevant issues which had nothing to do with her complaint.
[33]
To me, it was incumbent on the Applicant
to, at least, demonstrate that the decision not to pursue the matter
any further due to
lack of evidence and, consequently, the employer’s
failure to ‘…
take the
necessary steps to eliminate the alleged conduct
…’ was erroneous or misplaced. This is in view of the
fact that it does not follow that simply because a complaint
that the
provisions of the EEA have been contravened the employer must
automatically find that indeed there was such contravention.
[34]
The employer apparently based its decision
not to pursue the grievance any further on lack of evidence. The
Applicant made no attempt
to place before this court the evidence
which she had put before the First Respondent concerning the
contravention of the provisions
of the EEA. Just as the employer
found that there was no evidence of the alleged contravention, so is
the position this court finds
itself in.
[35]
It reiterate that it was necessary for the
Applicant to prove that [Mr M……] had contravened the
relevant provision
of the EEA. In this matter, it was incumbent on
the Applicant to make out a
prima facie
case that she was sexually harassed by [Mr M……]. The
Applicant has failed in this regard, with the result that the
application for absolution from the instance stands to be granted.
[36]
The Respondents did not ask for costs
against the Applicant should the application be successful. I
accordingly grant none.
[37]
In the circumstances make the following
order:
(i)
The Respondents’ application for
absolution from the instance is granted.
(ii)
There is no order as to costs.
Voyi
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For the
Applicant: Mr WP Scholtz (Attorney) of Scholtz Attorneys
For the
Respondents: Advocate M G Hitge
Instructed
by: Office of the State Attorney (Mafikeng)
[1]
Act
No. 55 of 1998 (“the EEA”)
[2]
See
Sihlali
v South African Broadcasting Corporation Ltd
(2010) 31
ILJ
1477 (LC) at para 4
[3]
By
referring to
inter
alia
:
Claude
Neon Lights (Pty) Ltd v Daniel
1976
(4) SA 403
(A
);
Gordon Lloyd Page & Associates v Rivera and Another
2001
(1) SA 88
(SCA);
and
Minister
of Safety and Security v Madisha and Others
(2009) 30
ILJ
591
(LC)
[4]
(2008)
29
ILJ
1196 (LC) at para 40
[5]
(2003)
4
ILJ
2341 (LC) p. 2374D-F
[6]
It
was pointed out to the Applicant during cross-examination that the
6
th
of December 2008 was on a Saturday. This was not disputed by the
Applicant and I also took judicial notice of this fact.