About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 455
|
|
Matambuye v MEC for education and Others (JS840/2012) [2015] ZALCJHB 455 (2 November 2015)
REPUBLIC
OF SOUTH AFRICA
Not reportable
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JS 840/2012
In
the matter between:
KGAREBE
STELLA
MATAMBUYE
Plaintiff
and
MEC
FOR EDUCATION
First Defendant
DEPT
OF EDUCATION
GAUTENG
Second Defendant
VUSUMUZI
NTSHINGILA
Third Defendant
Heard
:
29 and 30 October 2015
Judgment
delivered
:
2 November 2015
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
The plaintiff is employed as an educator at the Aurora Girls High
School. She has referred a dispute to this court in terms
of the
Employment Equity Act (EEA), in which she claims damages and other
relief as against the defendants. Her claim flows from
acts of sexual
harassment committed by the third respondent, a vice-principal at the
school. During May 2015, the current proceedings
were postponed, when
the applicant withdrew her claim against the third respondent when
she conceded that the EEA does not contemplate
claims for damages
against co-employees. When the proceedings resumed last week, the
applicant persisted in her claim for damages
in the sum of R 1 200
000 as against the second and third respondents. She relies on s 60
of the EEA, a provision that imposes
a form of vicarious liability on
employers who fail to discharge the obligations established by that
section when a claim of harassment
is lodged.
[2]
It is common cause that the applicant was sexually harassed by the
third respondent at her workplace, that the harassment constituted
an
act of unfair discrimination, and that the applicant reported the act
of harassment to the school principal. The only issue
in dispute is
whether the first and second respondents (to whom I shall refer
collectively as ‘the respondents’) are
liable to the
applicant on account of any failure to discharge their obligations in
terms of s 60. It was further agreed that the
merits of the
applicant’s claim and quantum would be separated.
Factual
background
[3]
It is common cause that the applicant was employed as an educator at
the Aurora Girls High School on 1 June 1993, and that she
remains so
employed. It is also common cause that on 14 February 2012, and again
on 16 February 2012, the third respondent sexually
harassed the
applicant by inappropriately hugging and touching her below the
waistline, by uttering the words ‘you are sexy’
and by
grabbing the applicant on her right buttock. It is not disputed that
on Friday, 17 February 2012 the applicant reported
these incidents to
the school principal, Ms Maselwane, who requested her to reduce the
complaint to writing. The applicant addressed
a written complaint to
the principal on Monday, 20 February 2012.
[4]
The applicant testified that she lodged the complaint, in writing,
with Maselwane on 20 February 2012. She testified that nothing
was
done thereafter. The applicant says that she then escalated her
complaint to the district office, where she similarly had no
response. After receiving no response from either the principal or
the district office, the applicant testified that she consulted
her
lawyers and then referred the matter to the CCMA on 13 August 2012. A
conciliation meeting was convened on 14 September 2012,
but the
respondents did not attend. Prior to the conciliation meeting, the
applicant testified that she had had no contact from
the respondents.
After the conciliation meeting, she referred the matter to this
court.
[5]
It was put to the applicant during her evidence-in-chief that the
respondents’ witnesses would say that on 5 March 2012,
she was
interviewed by an official who had been appointed to investigate her
complaint. The applicant firmly denied that she had
been interviewed.
This version was indeed put to the applicant during
cross-examination, and she again denied that an official
from the
department (a Mr Mabuza) had visited the school to interview her.
When a copy of the investigator’s report was put
to her, she
denied having seen the document until it was shown to her by her
attorney when a disciplinary hearing was ultimately
convened during
March 2015. Under cross-examination, the applicant also testified
that she had received a letter during September
2012 from Zakehlele
Nawa, requesting her cooperation concerning the disciplinary enquiry
initiated against the third respondent.
She acknowledged that the
letter was referred to her attorneys, who wrote a response to the
Department. The letter reads as follows:
Kindly
be informed that this matter has already been lodged at the Labour
Court on 20/09/2012 and all issues relating to this matter
will be
dealt with at the Labour Court level. You are hereby advised to
refrain from engaging with our client regarding this matter
but
instead to deal directly with our office as this would be calculated
as undermining the court process.
The
applicant testified that during the course of 2015, when the present
proceedings were previously postponed, and after discussion
with her
lawyer, she agreed to cooperate with the respondents and to testify
at the third respondent’s disciplinary hearing.
It is not
disputed that the hearing took place and that the third respondent
was found guilty and sanctioned.
[6]
A very different version was presented by the respondents’
witnesses. Mr KG Mabuza, who at the relevant time was employed
in the
department’s labour unit, testified that on 5 March 2012, and
in response to a complaint of sexual harassment by the
third
respondent referred to the district office by the applicant on 29
February 2012, he attended at the school at which she was
employed to
conduct an interview with both the applicant and the school
principal. He first conducted an interview with the principal.
He had
received a report from the principal on 1 March 2014 which had been
compared with the terms of the complaint lodged by the
applicant and
it was on the basis of these two documents that the investigation
commenced. After the principal had given him her
version of events,
Mabuza testified that he requested the principal to arrange for him
to interview the applicant. This was done.
The principal made
available the office of one of the other deputy principals, in which
Mabuza says that he conducted an interview
with the applicant for an
hour to 1 hour 15 minutes. After the interviews, he returned to his
office and compiled the report. He
recommended that disciplinary
proceedings be instituted against the third respondent and arrange to
have charges drafted. The within
submitted to the head of department
for authorisation and the formal institution of disciplinary
proceedings. Mabuza recalled that
by the beginning of June 2012, the
investigation had been completed and disciplinary proceedings through
complaints. It was at
this stage that Mabuza was engaged in a
different post in different capacity. Mabuza recalled that between
the time of his initial
interview at the school on 5 March 2012 and
the point at which he sought authorisation for the institution of
formal proceedings
against the third respondent, he had met with the
applicant on four to five different occasions, at least one of them
being a meeting
at which her husband attended. Mabuza was asked
whether he would recognise the applicant’s husband and when
requested to
acknowledge whether he was present in court, Mabuza
pointed out the applicant’s instructing attorney.
[7]
Mabuza made specific reference to his written report. The report is
dated 5 June 2012 and sets out the background to the complaint
received by the district office on 29 February 2012. The report
describes the action taken by the Department which included an
interview on 5 March 2012 with the principal and the applicant as
well as correspondence with the third respondent. The report
concluded with the recommendation that charges of misconduct be
brought against the third respondent.
[8]
The school principal, Ms Maselwane, testified that during February
2012, the applicant reported to her that she had been sexually
harassed by the third respondent. Maselwane requested the applicant
to provide a written report, which she did. Maselwane called
the
third respondent to her office and shedding the letter. He denied
having harassed the applicant. Maselwane then called a meeting
of
both the applicant and the third respondent at which she intended to
address the issue. The applicant failed to attend the meeting.
After
three days, and without any attempt by the applicant to engage with
her either as to the report or a failure to attend the
meeting, she
compiled a report to the district office. Before she could submit the
report, the school was visited by district office
officials in
response to a complaint lodged at that level by the applicant.
[9]
I have no hesitation in accepting the evidence of the respondents’
witnesses. Their evidence is internally consistent
and consistent
with the documentation referred to during the trial. While there may
be a question raised about precisely when Maselwane
compiled her
report and when it was submitted to the district office, in my view,
this is not a material issue. The fact remains
that Maselwane took
action immediately after receiving the applicant’s report and
confronted the third respondent with the
terms of the complaint. I
accept as more probable than not that Maselwane attempted to convene
a meeting and that after it became
clear to her that the matter was
not going to be resolved at school level, she wrote a report to the
district office.
[10]
In any event, the district office, when it received the applicant’s
complaint on 29 February 2012, acted without delay.
The respondents’
version that interviews were held at the school on 5 March 2012 is
the subject of internally consistent
evidence – Mabuza
testified that at his request, the principal arranged a private
interview with the applicant. The terms
on which this occurred accord
precisely with the principal’s evidence, i.e., that she
arranged for the interview to take
place in the office of another
vice-principal, that she called the applicant from her classroom to
attend the interview and that
a private interview took place between
the applicant and Mabuza. This version of events is confirmed by the
written report subsequently
produced by Mabuza. Stacked against what
amounts to a bare denial by the applicant that she was ever
interviewed by Mabuza and
her assertion that she was never called to
a meeting with the principal and the third respondent, the
probabilities in favour of
the respondent’s version are
overwhelming. Of some significance too is the fact that Mabuza was
able to point to the applicant’s
husband, whom he had testified
had attended at least one of the meetings that followed the initial
interviews on 5 March and during
which he had furnished progress
reports to the applicant.
[11]
Insofar as the demeanour of the witnesses is concerned, both Mabuza
and Maselwane gave evidence clearly and confidently. Their
recall of
events was clear, and their evidence was not subject to serious
challenge during the course of cross-examination. On
the contrary,
the applicant appeared to be a hesitant witness. To the extent that
Mr Nkosi, who appeared for the applicant, sought
to be dismissive of
the obvious shortcomings in the applicant’s evidence by
appealing to the lengthy period between the date
of the incident and
the date of the hearing into consequence lapses in memory, this does
not remedy the obvious improbability of
the applicant’s
version, especially given the documentary evidence before the court
and the pointing out of the applicant’s
husband.
[12]
I find therefore that contrary to the applicant’s version that
there was no contact between her and the department after
she made a
complaint to the principal and that the department had made no
attempt to interview her, an investigation was initiated
and
conducted during which Mabuza held at least four meetings after the
initial interview with the applicant on 5 March 2012, at
which he
reported progress in his investigations and the course of the
disciplinary action that he had recommended.
[13]
The question that remains, of course, is whether on the respondents’
version, they have discharged their obligations
in terms of s 60 of
the EEA.
Relevant
legal principles
[14]
Sexual harassment is a form of unfair discrimination – see s
6(3) of the EEA. Section 60 of the EEA creates a form of
vicarious
liability by employers for acts committed by the employees that
amount to a contravention of the EEA. Section 60 reads
as follows:
60.
Liability of employers.
(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.
[15]
Section 60 has been the subject of commentary in a number of
judgments delivered by this court. In
Ehlers v Bohler Uddeholm
Africa (Pty) Ltd
(2010) 31 ILJ 2383 (LC), the court said the
following:
…
to succeed in her claim for damages
against the respondent in terms of the EEA, she will have to prove
that she suffered discrimination
at the workplace, she brought it to
the attention of the respondent, the respondent knew about it and did
not take any reasonable
steps to prevent it from happening….
Section 60 of the EEA deals with liability of employers. The
respondent will only be
liable if the applicant was able to prove
that it brought the discriminatory conduct to the attention of the
respondent and the
respondent failed to take all reasonably
practicable steps to ensure that the employees would not act in
contravention of the EEA…
[16]
In relation particularly to sexual harassment, in
Potgieter v
National Commissioner of the SA Police Service and another
(2009)
30 ILJ 1322 (LC) the court said the following:
An
employer will be held liable if it is shown in terms of s 60 of the
EEA, that:
(i)
the sexual harassment conduct complained of was committed by
another
employee.
(ii)
It was sexual harassment constituting unfair discrimination.
(iii)
The sexual harassment took place at the workplace.
(iv)
The alleged sexual harassment was immediately brought to the
attention of the
employer.
(v)
The employer was aware of the incident of sexual harassment.
(vi)
The employer failed to consult all relevant parties, or take the
necessary
steps to eliminate the conduct will otherwise comply with
the provisions of the EEA.
(vii)
The employer failed to take all reasonable and practical measures to
ensure that
employees did not act in contravention of the EEA.
(See
also
Moatshe v Legend the Golf and Safari Resort Operations (Pty)
Ltd
[2014] 12 BLLR 1213
(LC).)
[17]
What precisely the nature and extent of an employer’s
obligations are obviously depends on the facts of each case but,
for
example, in
Mokoena & another v Garden Art (Pty) Ltd
[2007] ZALC 90
;
[2008] 5 BLLR 428
(LC), the court held that where in response to a
claim of sexual harassment the employer had issued a written warning
and where
no further incidents had occurred, the employer was not
liable to the employee. Of some significance (if only because this
judgment
was heavily relied on by the applicant’s
representative) is the view expressed at paragraph 42 of the
judgment, where the
court stated where the employer is made aware of
an act of sexual harassment but the employer fails to take steps to
eliminate
it and a further act of harassment takes place, the
employer cannot escape liability in terms of section 60. The court
went on
to say however that where there is a single incident of
sexual harassment which is brought to the attention of the employer
immediately
afterward, an employer will not be liable in terms of s
60. The court went so far as to say that an aggrieved employee may in
these
circumstances have to consider a different basis to hold the
employer liable. In other words, s 60 applies only when an act of
sexual harassment has been brought to the attention of the employer
and as a result of the employer’s inaction, further acts
of
harassment occur.
[18]
In
Potgieter v National Commissioner of the
SAPS & another
[2009] 2 BLLR 144
(LC),
the court dismissed a claim for compensation and damages in
circumstances where the perpetrator of an act of sexual harassment
against the applicant had been subjected to a disciplinary hearing
and fined. The court specifically rejected the contention that
the
employer was liable because it did not take further steps, including
the removal of the perpetrator from the workplace and
because the
sanction imposed on him was too lenient.
[19]
In
Biggar v City of Johannesburg, Emergency Management Services
[2011] 6 BLLR 577
(LC), a case where there had been sustained
racial harassment of the applicant and his family at the hands of
co-employees in residential
premises provided by the employer, the
court held on the facts that the employer had failed to take all
necessary steps to eliminate
racial abuse that had been perpetrated
by some of its employees and that it did not do everything that was
reasonably practicable
to prevent of the continued harassment.
[20]
The provisions of the Code to make certain recommendations regarding
procedures to be followed when sexual harassment
(the Code of
Good Practice) assumes some significance in relation to employer
liability in terms of s 60. In
Ntsabo v Real Security CC
[2007] ZALC 41
;
[2004] 1 BLLR 58
(LC), this court made reference to both s 60 and the
Code of Good Practice and made particular reference to the
educative
procedures which the employer is called upon to implement
so as to avoid harassment. The court noted however, (at 95 G-H) that
these recommendations are ‘
mere instructive guidelines not
to be followed are not binding law
’. The court went on to
hold that an employer party could not be penalised only for its
failure to implement the Code’s
recommendations.
Analysis
[21]
If the approach adopted in
Mokoena & another v Garden Art
(Pty) Ltd
(supra) were to be applied (i.e. that an employer
cannot be liable to a victim of sexual harassment in terms of s 60
except where
the harassment is repeated after the lodging of an
initial complaint and then only in circumstances where the employer
failed to
take reasonable steps to prevent further harassment), the
present referral stands to be dismissed on that basis. The applicant
was clearly the subject of a serious act of harassment, she reported
it and after intervention by her employer and its agents, the
act was
not repeated.
[22]
If one were to accept (as I do) that the
Garden Art
approach
represents an overly narrow reading of s 60 and that an employer may
be liable to an employee in terms of that section
even for an act of
harassment that is the subject of an initial, single report, the
principle that appears to emerge from the case
law is one that
represents a conflation of s 60 (2) and (4). In other words, the
requirement that an employer take the necessary
steps to eliminate
any act of discrimination translates into a requirement that escape
liability, the employer must be able to
prove that it did all that
was reasonably practicable to ensure that the employee would not in
contravention of the act. Whether
s 60 (2) refers to steps at the
employer must necessarily take immediately following any report of
any harassment and whether subsection
(4) refers to reasonable steps
that the employer must necessarily take in advance to eliminate and
prevent acts of unfair discrimination,
is not something I need
decide. Am satisfied that for the purposes of s 60 (2) the
respondents took all necessary steps following
the applicant’s
complaint. The principal attempted to convene a meeting between the
applicant and the third respondent; Mabuza
initiated an investigation
soon after the applicant lodged a complaint with the district office
and completed the investigation
and a reasonable time. The respondent
might be criticised for some delay between Mabuza’s report and
his recommendation that
formal disciplinary proceedings be initiated
against the third respondent and the point at which steps were taken
to initiate those
proceedings. However, on the available evidence, it
is clear to me that the reason that the disciplinary proceedings
stalled was
the applicant’s lack of cooperation and in
particular, her attorneys notice to the respondents that… It
was not unreasonable
for the respondents to read the letter to put in
place as Mabuza put it, ‘a kind of interdict’ pending the
outcome
of the proceedings initiated in this court.
[23]
The fact that disciplinary proceedings were held only in 2015 was the
consequence directly of the applicant’s belated
agreement to
cooperate in those proceedings. The case was one in which the
applicant’s evidence, as a single witness, was
vitally
necessary, given that the third respondent had chosen to deny all of
the allegations made against him. In my view, the
respondents cannot
be blamed for the delay in sanctioning the third respondent for the
serious misconduct that he committed and
the circumstances, it cannot
be said, given the evidence as a whole, that the respondents failed
to take the necessary steps once
the applicant had filed her
complaint.
[24]
To the extent that Mr Nkosi appealed to the terms of the Code of Good
Practice and in particular the applicant’s failure
to comply
with the provisions of paragraph 11 (information and education), this
cannot in itself be a factor that contributed to
the act of
harassment that occurred in the present instance or for which the
respondents ought to be held liable. As Pillay AJ
(as she was then)
noted in
Ntsabo v Real Security CC
(supra), a breach of any of
the provisions of the Code of Good Practice is not in itself a basis
on which an employer attracts liability
under the EEA. The nature and
extent of any breach and any causal relationship that may exist
between that breach and the act of
harassment in issue is a matter to
be determined on the facts of each case. In the present instance, the
applicant has not led
sufficient evidence to establish that any
shortcomings by the respondent in relation to information about and
education on the
prevention of sexual harassment are of such a degree
that the respondents ought to be held liable for the act of
harassment perpetrated
by the third respondent.
[25]
For all of the above reasons, in my view, the applicant’s case
lacks merit and the referral stands to be dismissed.
[26]
In relation to costs, this court has a broad discretion in terms of s
162 of the LRA to make orders for costs according to
the requirements
of the law and fairness. Ordinarily, this court is disinclined to
make orders for costs against individual applicants
who pursue
grievances against their employers in good faith. In the present
instance, I have my doubts that this case falls into
that category –
it seems to me that the applicant chose to pursue her referral to
this court and the prospect of a substantial
award of damages in
circumstances where she did not wish to compromise that claim by
participating in disciplinary proceedings
against the third
respondent, even though these might ideally have commenced much
sooner than they did. None of this was put to
the applicant however,
and on the evidence before me, she must be afforded the benefit of
the doubt and a finding that although
misguided, the institution of
these proceedings was not malicious.
I
make the following order:
1.
The applicant’s claim is dismissed.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
For
the applicant: Adv. JSC Nkosi, instructed by LP Molope Attoneys
For
the first and second respondents: Adv. K Molemoeng, instructed by the
State Attorney