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[2015] ZALCPE 10
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Department of Road and Public Works Eastern Cape Providence v General Public Service Sectoral Bargaining Council (GPSSBC) and Others (PR90/13) [2015] ZALCPE 10 (13 February 2015)
REPUBLIC
OF SOUTH AFRICAIN
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
DATE:
13 FEBRUARY 2015
Case
no: PR 90/13
In
the matter between:
DEPARTMENT
OF ROAD AND PUBLIC WORKS
EASTERN
CAPE
PROVINCE
..................................................................................
Applicant
And
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
(GPSSBC)
.........................................................
First
Respondent
ADVOCATE
MHLONGO
N.O
..................................................................
Second
Respondent
AYANDA
TIWANE
.........................................................................................
Third
Respondent
Heard:
5 August 2014
Delivered:
13 February 2015
Summary:
The responsibility of determining the fairness of a dismissal lies
with the arbitrator. When the arbitrator has taken
a decision
which falls within bounds of reasonableness the Labour Court will
refuse to interfere with it.
JUDGMENT
LALLIE,
J
[1]
This is an application to review and set aside an arbitration award
of the second respondent (“the arbitrator”)
in which he
found the third respondent not guilty of sexual harassment and
ordered his reinstatement retrospectively. It is opposed
by the third
respondent.
Factual
background
[2]
The third respondent was employed by the applicant as a Manager
Technical Services at the Alfred Nzo Region. Mrs Nkenjane (Nkenjane),
a Control Works Inspector who was the third respondent’s
subordinate filed sexual harassment complaints against him in July
and August 2010. The complaints were investigated; consequently, the
following charge was preferred against the third respondent:
‘
That
you contravened annexure A of the PSCBC resolution 1 of 2003, in
that, on or during the year 2010 and at or near Kokstad in
the Alfred
Nzo Region of the Department, you sexually harassed Mrs Nkenjane by
saying to her “ezimpundu zakho zinkulu, iyahlutha
nendoda
yakho, kufuneka undivise nam” (translated as “your bums
are big your man must be getting all satisfaction,
let me taste them
as well).’
The
chairperson of the disciplinary enquiry which had been instituted
against the third respondent found him guilty of the charge
and
dismissed him. He challenged the fairness of his dismissal at the
first respondent where the arbitrator issued the arbitration
award
which the applicant seeks this court to review and set aside.
The award
[3]
Analysing the evidence before him the arbitrator intimated that he
was going to concentrate on the evidence relating to the
misconduct
the third respondent was charged with because it is what led to his
dismissal. The arbitrator’s approach was correct
because he had
to determine whether the third respondent’s dismissal for the
misconduct he was dismissed for committing was
fair, based on his
sense of fairness. The arbitrator considered Nkenjane’s
evidence that the third respondent made the comment
about her bums in
February 2010, while she was in his office. Nkenjane reported a
misunderstanding between the third respondent
and herself to Ms
Mshweshwe (Mshweshwe) of the Employee Assistance Programme in August
2010. She wanted Mshweshwe to intervene
by calling the third
respondent and herself and persuade the third respondent to release
her to another section. Mshweshwe told
Nkenjane that she was hiding
something and she revealed the issue of sexual harassment for which
Mshweshwe asked her to submit
a written report. Nkenjane filed two
grievances of sexual harassment against the third respondent. One
pertained to the comment
made by the third respondent about her bums
and the other involved an incident which took place in Bisho in 2009.
[4]
The arbitrator further noted that Nkenjane requested to be
transferred from the third respondent’s section but the third
respondent refused. She then lodged the initial grievance because she
wanted the matter to be resolved amicably so that she could
be
transferred to professional services and the problem resolved with
the intervention of two elderly people but the third respondent
refused to participate. She further expressed her wish for justice to
be done. Nkenjane was transferred after she had lodged the
grievance.
The arbitrator rejected Nkenjane’s version that the third
respondent made the comment about her bums because she
failed to call
as witnesses her colleagues in whose presence, on the applicant’s
version, the comment was sometimes made
and Mshweshwe to whom she
reported the alleged sexual harassment. He accepted the third
respondent’s version who denied having
made the comment and
stated that he only complemented Nkenjane about her beauty on her
return from maternity leave. He accepted
the third respondent’s
evidence that Nkenjane reported the incidents because she wanted to
be transferred to professional
services. He further accepted the
third respondent’s evidence which was corroborated by a witness
to the effect that the
real problem was that the third respondent was
trying to discipline Nkenjane who was under performing. The
arbitrator found that
Nkenjane failed to prove her case on a balance
of probabilities and ordered the third respondent’s
reinstatement. He also
found that Nkenjane had achieved her objective
of being transferred to professional services which led her to report
her problem
to Mshweshwe and not to the labour relations section.
Grounds for
review
[5]
The applicant’s first ground for review was that the applicant
proved on a balance of probabilities at the arbitration
that the
third respondent committed sexual harassment against Nkenjane.
Substantiating this submission, the applicant sought to
rely on an
incident which took place while Nkenjane and the third respondent
were in Bisho on business. The Bisho incident does
not assist the
applicant because the third respondent, as the arbitrator correctly
pointed out, was only charged and dismissed
for the comments he made
about Nkenjane’s bums. A further attack on the award is mounted
on the alleged unreasonable finding
that the third respondent was not
guilty of sexual harassment when the evidence of the remarks he made
about her bums was not contradicted.
It was submitted that evidence
proved the third respondent’s guilt and in disregard of such
evidence, the arbitrator found
that he did not make himself guilty of
sexual harassment. The record reflects that the third respondent
denied having made the
comment. The denial constitutes contradiction
of Nkenjane’s evidence. The applicant submitted that the
arbitrator committed
a material misdirection in failing to analyse
the overall evidence carefully having regard to the nature of sexual
harassment as
victims are reluctant to lay grievances against their
harassers for fear of victimisation. Perpetrators are generally
direct supervisors
of victims as it was the case in the matter at
hand.
[6]
An argument on sexual harassment generally was eloquently presented
on behalf of the applicant. It, however, addressed the matter
at hand
superficiality. In
Fedelity
Cash Management Services v Commission for Conciliation Mediation and
Arbitration and others,
[1]
the court, interpreting the test for review in
Sidumo
and Others v Rustenburg Platinum Mines Ltd and Others,
[2]
held that the test whether an arbitration award is reasonable is a
stringent one that will ensure that awards are not lightly interfered
with. The court further held that there is no basis to interfere on
review with a decision that could have been reached by a reasonable
decision-maker. The test is, therefore, whether the award falls
within bounds of reasonableness. The correct way to determine a
review application is to consider the evidence before the arbitrator
in its totality.
[3]
Evidence
reflects that the arbitrator dealt with the real issue before him
which was to determine whether the third respondent
had committed
sexual harassment by making a derogatory comment of a sexual nature
about Nkenjane’s body. The arbitrator cannot
be criticised for
drawing a negative inference from Nkenjane’s failure to call
witnesses as it was her evidence that the
third respondent made the
derogatory remark often and in the presence of her colleagues and the
third respondent had denied having
made the comment. Further, his
reasoning that Nkenjane was influenced by her need to be transferred
from the third respondent’s
section is supported by Nkenjane
and the third respondent’s witness. Nothing turns on the
arbitrator’s comment that
Nkenjane had obtained her goal of
being transferred to professional services. Contrary to the
applicant’s argument, the arbitrator
did consider the mutually
exclusive versions he was presented with and gave reasons for
preferring the third respondent’s.
A consideration of the
evidence before the arbitrator reflects that he reached a decision
which a reasonable decision-maker could
have reached on the evidence
before him and in the circumstances, I could find no reason to
interfere with it.
[7]
The third respondent sought a costs order against the applicant.
Having considered the submissions made on behalf of the applicant
and
the third respondent on the question of costs as well as the
provisions of
section 162
of the
Labour Relations Act 66 of 1995
, I
am satisfied that considerations of the law and fairness require that
a costs order be granted against the applicant. The third
respondent
did not act unreasonably in opposing this application armed with an
arbitration award in his favour in an attempt to
protect his right to
reinstatement.
[8]
In the circumstances the following order is made:
8.1
The application for review is dismissed with costs.
Lallie J
Judge
of the Labour court of South Africa
Appearances
For the
applicant: SC Gqamama
Instructed by:
The State Attorney
For the
respondent: Advocate Smith
Instructed
by: Mgweshe Ngqeleni Attorneys
[1]
(2008)
29 ILJ 964 (LAC) at para 100.
[2]
2008 (2) SA 24 (CC).
[3]
.
See
Gold
fields Mining SA (Pty) Ltd v CCMA
and
Others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC).