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[2016] ZALCJHB 37
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Doctors Dietrich Voigt Mia t/a Pathcare v Roopa NO and Others (JR855/2012) [2016] ZALCJHB 37 (25 January 2016)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Case
No.: JR855/2012
In the matter
between:
DOCTORS DIETRICH
VOIGT MIA TRADING AS PATHCARE
Applicant
and
COMMISSIONER
PRAKASH ROOPA N.O.
First Respondent
THE COMMISSION
FOR CONCILIATION, MEDIATION AND ARBITRATION
Second Respondent
NEHAWU on behalf
of ELIAS MZINGO TSAWE
Third Respondent
Heard:
30 June 2015
Delivered:
25 January 2016
Summary:
Review application. Employee charged with Sexual harassment.
Commissioner finding that precise events stated in charge
not proved
in evidence and finding dismissal unfair. Commissioner failing to
take into account the pattern of conduct of the employee
and the
totality of the evidence. Commissioner failing to consider the
provisions of section 193(2)(b) of the Labour Relation Act
66 of 1995
and assess, in light of the employee’s conduct, whether a
continued employment relationship would be intolerable.
Continued
employment clearly intolerable. Decision of commissioner not within
band of decisions a reasonable commissioner would
have reached. Test
on review restated. Commissioner’s award reviewed and set
aside.
JUDGMENT
SNIDER
AJ
[1]
This
is an application in terms of which the applicant seeks the review of
an award made by the first respondent (“the Commissioner”)
under NWKD2490-11 dated 2 March 2012 in which the commissioner,
acting under the auspices of the second respondent, found that
the
dismissal of the third respondent (“the employee”) was
unfair. The Commissioner ordered the applicant to reinstate
the
employee and, further, awarded the employee compensation in the
amount of R36,800-00 (thirty-six thousand, eight hundred rand)
being
the equivalent to eight months of his remuneration at the time of his
dismissal.
[1]
Background
[2]
Briefly, the background to this matter is
as follows.
[3]
The applicant is a pathology laboratory
business and the employee was employed,
inter
alia,
to collect specimens from various
doctors’ surgeries and deliver results to them.
[4]
For the purposes of this matter, the
employee collected specimens from the surgery of one Dr van Niekerk.
[5]
The matter is concerned with approaches
that were made by the employee to one Wilhelmina Thlakane
(“Thlakane”) who appears
to have been a general employee
at Dr van Niekerk’s practice.
[6]
An incident took place on 14 July 2011
between the employee and Thlakane. Thlakane’s evidence was to
the effect that the employee
looked at her in a suggestive manner,
approached her very closely, to the extent that she had to use a file
to protect herself
from him, that he suggested that they should go to
the toilet together and, ultimately, when she rejected his advances,
he left.
[7]
She was traumatised by these events and
reported what had transpired to one Celeste van Zyl (“van
Zyl”).
[8]
Van Zyl then telephoned the applicant. The
applicant duly instituted disciplinary proceedings against the
employee. The charge against
the employee was, verbatim -
‘
Sexual
Harassment:
On
14 July 2011 you visited Doctor van Niekerk room to collect specimens
and deliver reports. It is alleged that during your visit,
you
touched the clerk in an inappropriate manner in that you touched her
breasts and other parts of her body. You were allegedly
confronted by
the senior of the same doctors rooms on a previous occasion for
having done the same thing and was warned not to
do it again or you
will be reported’.
[2]
[9]
I will deal in greater detail with the
evidence in the matter below.
[10]
The
disciplinary enquiry duly took place on 2 August 2011 and the
employee was dismissed pursuant to that disciplinary enquiry.
An
appeal hearing was conducted on 18 August 2011. The appeal hearing
appears to have been abandoned
[3]
at the behest of the employee relating to his desire to be
represented by a party external to the applicant.
[11]
The applicant then referred the matter to
the second respondent and the hearing was conducted before the
Commissioner on 21 February
2012.
Grounds
for review
[12]
The applicant’s first ground of
review relates to the manner in which the Commissioner conducted
himself during the course
of the arbitration.
[13]
Whilst it is unnecessary to deal with each
and every instance of the Commissioner’s conduct which the
applicant complains
of, I am of the view that the Commissioner’s
conduct was entirely unacceptable and the transcript of the
proceedings is replete
with incidents where he clearly descended into
the arena to the extent that it created significant difficulties for
both parties
in running the arbitration.
[14]
However, although the Commissioner’s
conduct was unacceptable I need to consider the degree to which it
impacted on a full
conspectus of the evidence being led at the
arbitration and its consequent impact on the Commissioner’s
ability to come to
a conclusion in the matter and, obviously, its
impact on this review application.
[15]
I do not think that the Commissioner’s
conduct, as improper as it was, entirely vitiated the proceedings
before him and his
consequent award.
[16]
This finding must not in any way be seen to
condone the conduct of the Commissioner.
[17]
The second ground of review is that the
Commissioner failed to take cognisance of a pattern of behaviour on
the part of the employee
where evidence was given of conduct similar
to that which the employee was accused of in respect of the events of
14 July 2011.
[18]
The third ground of review is that the
Commissioner’s conduct itself caused Thlakane to become
confused in relation to her
testimony.
[19]
Thlakane, it appears, gave evidence at the
disciplinary enquiry that she was in fact touched by the employee
during the course of
the incident on 14 July 2011 but, at the
arbitration, gave evidence that she was not touched. The failure on
Thlakane’s part
to give evidence at the arbitration that she
was touched is, in effect, the basis on which the Commissioner found
that the employee’s
dismissal was unfair and this ignores not
only the pattern of conduct in respect of which there was evidence
against Thlakane but
also the corroborating evidence of van Zyl.
[20]
The third ground of review is that the
Commissioner, on an unwarranted basis, narrowed the issues before the
arbitration, which
included the incident where the employee suggested
that he and Thlakane “go to the toilet”.
[21]
A further ground of review relates to the
relief afforded to the individual third respondent particularly
relating to his reinstatement.
[22]
The Commissioner failed to advance any
proper reasoning or motivation in respect of why he reinstated the
employee. I must mention
at this stage that the Commissioner did
state that the applicant had not demonstrated that the trust
relationship between the applicant
and the employee had broken down.
In my view the breakdown was amply demonstrated by the evidence of
John Pepper, an area manager
for the applicant, and the evidence as a
whole.
[23]
Although
the submission of “
brief
arguments
”
is referred to by the Commissioner in his award,
[4]
same do not form part of the record.
[24]
I am accordingly not able to determine what
was submitted to the Commissioner in argument.
Consideration
of the grounds of review
[25]
The
Commissioner took an extremely narrow view of the charge with which
the employee was charged and then made an extremely narrow
finding in
relation thereto. It must be noted that although a specific event and
specific particularised conduct is referred to
in the charge, the
part of the charge which is underlined and in bold is the phrase
“
sexual
harassment
”.
The part of the charge which the Commissioner takes issue with is
“
you
touched the clerk in an inappropriate manner in that you touched her
breasts and other parts of her body”.
An
employer is in any event entitled to frame a charge sufficiently
widely to encompass a lesser involvement. The underlined rubric
“sexual harassment” speaks to this being the case
here.
[5]
[26]
The
Commissioner’s finding in this regard is as follows
[6]
–
‘
22.
Secondly what it is tasked to do, is to prove (the applicant) the
specific charge for which it dismissed
him. In that regard it had
failed to do so. The charge against Tsawe was very specific of his
conduct on the 14
th
July 2011. That he ‘touched her breasts and other parts of her
body’. There is no evidence to that effect: as the alleged
victim, Thlakane, twice indicated he did not touch her at all. That
fact is fatal to the case of the respondent, as it is called
upon to
prove the charge it preferred against Tsawe which is not supported by
the facts as were presented to me.
23.
Finally, it must also be mentioned that Tsawe was not charged for
sexual harassing Thlakane
for suggesting she join him in toilet,
which is largely relied upon, but for which it did not refer to at
all in the charge sheet.
24.
I therefore cannot find that the respondent has proven the charge
against Tsawe on a balance
of probability, which renders his
dismissal as unfair.
25.
I also take into account Tsawe’s plea that he be allowed to
return to work’.
[27]
Not
only do the Commissioner’s findings in this regard stem from an
unacceptably narrow interpretation of the charge, but
the finding
also entirely disregard a full conspectus of the evidence against the
employee and demonstrates a woeful failure, on
the part of the
commissioner, to consider the provisions of section 193(2)(b) of the
Labour Relations Act
[7]
(“the
LRA”). Had the Commissioner taken into account the evidence of
both Thlakane and van Zyl that this was not the
first instance of
sexual harassment against the employee and that on 14 July 2011 –
27.1.
he had approached close to her;
27.2.
she had to protect herself with a file;
27.3.
she had to push him with the file;
27.4.
he said to her that “we better go
inside the toilet”; and
27.5.
she
said to him that she is “not like other woman” and “not
easy”;
[8]
he
would undoubtedly have come to a different conclusion.
[28]
Thlakane also expressed her fear to van Zyl
and expressed that “she had to stop this before it goes too
far”.
[29]
Ironically,
when the applicant’s representative is questioning Thlakane on
the issue of being asked to go to the toilet as
to what her
interpretation of that request was, the commissioner states “
ag
it is obvious madam”
.
[9]
[30]
Thlakane
approached van Zyl and she was clearly traumatised by the
incident.
[10]
[31]
Thlakane
also gave evidence of an incident that took place at a pawn shop at a
place called Tolbos where the employee made various
unwarranted
suggestions relating to a potential relationship between him and
Thlakane and also accused her of prostitute like behaviour.
Thlakane
further gave evidence that the conduct of the nature perpetrated by
the employee on 14 July 2011 had happened before.
[11]
[32]
Van
Zyl gives clear corroborating evidence of the events of 14 July 2011
as well as of the fact that this was the second time that
events of
this nature had occurred.
[12]
[33]
Van
Zyl gives evidence specifically in relation to Thlakane using the
file to protect herself and, effectively, preventing the employee
from touching her breasts.
[13]
[34]
It my view it matters not, in considering
the matter relative to the provisions of section 193(2) (b) of the
LRA, that is to say
whether the circumstances surrounding the
dismissal are such that a continued employment relationship would be
intolerable; whether
the specific and particular conduct with which
the employee was charged was in fact perpetrated by the employee.
[35]
The facts, and they are largely undisputed
bearing in mind that no proper version was put to Thlakane in
cross-examination, show
a pattern of conduct that amounts to
persistent sexual harassment of a demeaning, insulting and injurious
type.
[36]
Having conducted himself in this matter the
employee could not have expected to be reinstated and the
Commissioner could not conceivably
come to a reasonable conclusion
that he should be reinstated.
[37]
The
test on review is now notoriously well known in our law and is set
out in
Sidumo
and Another v Rustenburg Platinum Mine Limited and Others
[14]
and has recently been revisited in
Herholdt
v Nedbank Limited (Congress of South African Trade Unions and Amicus
Curie
;
[15]
and
Goldfields
Mining (Pty) Ltd (Kloof Gold Mine) v Commissioner for Conciliation
Mediation and Arbitration
.
[16]
[38]
The
following is an exposition of the test from the judgment of Waglay,
JP in the
Kloof
decisions
supra:
[17]
‘
Sidumo
does not postulate a test that requires a simple evaluation of the
evidence presented to the arbitrator and based on that evaluation,
determination of the reasonableness of the decision arrived at by the
arbitrator. The court in
Sidumo
was at pains to state that arbitration awards made under the Labour
Relations Act (“the LRA”) continued to be determined
in
terms of section 145 of the LRA but that the constitutional standard
of reasonableness is “suffused” in the application
of
section 145 of the LRA. This implies that the application for review
sought on the grounds of misconduct, gross irregularity
in the
conduct of the arbitration proceedings, and/or excess of powers will
not lead automatically to setting aside of the award
if any of the
above grounds are found to be present. In other words, in the case
such as the present where a gross irregularity
in the proceedings is
alleged, enquiry is not confined to whether the arbitrator
misconceived the nature of the proceedings, but
extends to whether
the result was unreasonable, or put another way, whether the decision
that the arbitrator arrived at is one
that falls in a band of
decisions to which a reasonable decision maker could come on the
available material.’
[39]
In my view the decision made by the
Commissioner in this case relating to reinstatement of the employee
is not one that falls in
a band of decisions to which a reasonable
decision maker could come on the available material.
[40]
The employee’s conduct was simply
beyond the pale and the employer could not be expected to reinstate
him. It simply would
have been intolerable to continue to have him as
an employee under the circumstances.
[41]
In light of what has been set out above,
although the applicant did not prove certain of the particularity of
the charge against
the employee,
in
casu
, this ought not to have led to the
reinstatement of the employee.
[42]
Similarly I am of the view that the
decision to compensate the employee in the circumstances is not one
that falls within the band
of reasonable decisions to which the
Commissioner could have come.
[43]
I do not believe that it would serve any
purpose to remit this matter back to the first respondent for a fresh
hearing. There is
sufficient evidence available to me to determine
the dispute in an appropriate manner as referred to in section 145(4)
(a) of the
LRA.
[44]
Accordingly, I make the following order:
44.1.
The award is reviewed and set aside.
44.2.
There is no order as to costs.
___________________________
Snider,
A J
Acting
Judge of the Labour Court of South Africa
APPEARANCES
For
the Applicant:
Anita Bosch of Snyman Attorneys
For
the Third Respondent:
Lebogang Galane of National Education Health and Allied
Workers Union
[1]
A
copy of the award appears at page 23 of the amended pleadings bundle
[2]
The
notice to attend a disciplinary hearing appears on page 144 of the
first volume of the record.
[3]
Pages
154 to 155 of volume one of the record
[4]
Amended
pleadings bundle page 76 paragraph 14
[5]
Chemical
Workers Industrial Union and Another v Algorax
(Pty)
Ltd
(1995) 16
ILJ
933 (IC) at 940A.
[6]
Page
29 of the pleadings.
[7]
Act
66 of 1995 (as amended)
[8]
Page
76 to 81 of the transcript which forms part of volume one of the
record.
[9]
Page
83 lines 25 record volume one
[10]
Page
85 of record volume one
[11]
Page
93 of record volume one
[12]
Page
105 of record volume one lines 13 to 27 and page 106
[13]
Page
106 line 10 to 15 of the record volume one
[14]
[2007]
12 BLLR 1097
CC;
[15]
(2013)
34v
ILJ
2795 (SCA)
[16]
2014
35
ILJ
943 (LCA) at paragraph [14]
[17]
At
paragraph [14]