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[2016] ZALCJHB 76
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Xstrata Coal SA (Pty) Ltd v Ngobeni NO and Others (JR1327/13) [2016] ZALCJHB 76 (2 March 2016)
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REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Of interest to
other judges
C
ase
no: jr 1327/13
In the
matter between:
XSTRATA COAL SA (PTY) LTD
Applicant
and
Commissioner J NGOBENI N.O.
First Respondent
CCMA
Second Respondent
NUM
BHEKA ZUNGU
Third Respondent
Fourth Respondent
Heard
:
12 February 2016
Delivered
:
2 March 2016
Summary:
Review – sexual harassment – gross
irregularities in proceedings leading to unreasonable result –
award set aside
– dismissal fair.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The
applicant, Xstrata Coal, dismissed its employee, Bheka Zungu
[1]
,
for sexual harassment. He referred an unfair dismissal dispute to the
CCMA.
[2]
Conciliation failed. He referred it to arbitration. The arbitrator,
Commissioner Joseph Ngobeni
[3]
,
found that the dismissal was substantively unfair and ordered Xstrata
to reinstate the employee with backpay for the time that
he was
unemployed. Xstata seeks to have the award reviewed and set aside. It
argues that the dismissal was fair.
Background
facts
[2]
Zungu was a fulltime shop steward. A
co-worker, Ms Y. N., alleged that he placed his hand on her breast
and touched her waistline
in an inappropriate manner. She felt
uncomfortable and made it clear that it was unwelcome. She sent an
email to her HR manager
complaining about the incident. Zungu denied
it. At a disciplinary hearing, the chairperson found that he did
commit the misconduct.
He was dismissed.
The
evidence at arbitration
[3]
At the arbitration, Xstrata called four
witnesses. Zungu testified on his own behalf and called another
witness, Judas Matingane.
[4]
The alleged victim, Ms N., testified that
Zungu and Matingane came to her office on 22 October 2012 to enquire
about a meeting date.
(Matingane is the chairperson of the NUM branch
committee). Zungu came around her desk and put his hand on her
breast. She pushed
it away. He tapped her waist and asked her (in
Zulu) if she was angry. Matingane, who was standing at the door,
lifted his shirt
and exposed his stomach while he was tucking his
shirt into his trousers. After they had left, she sent her human
resources manager
an email:
“
Hi
Lindiwe
Bheka
Zungu and Judas Matingane just walked into my office now to inquire
about the next joint forum meeting. Bheka came to stand
on my side of
the table and he placed his hand on my chest out of nowhere, then I
pushed it away and he went to tap my waistline
as I was sitting down.
He even had the nerve to say am I now angry at him. Judas Matingane
also lifted up his shirt inside the
office and his whole stomach was
exposed. I am appalled by their behaviour and they made me feel
uncomfortable.”
[5]
According to N., Zungu realised that his
conduct was unwelcome. He returned to her office to apologise.
[6]
Pierre van der Heever conducted a polygraph
test. N. passed (i.e. showed “no deception”) and
Matingane failed (i.e.
his answers showed deception). Dickie Grobler,
the chairperson of the grievance hearing, testified that Zungu
refused to undergo
a polygraph test. Cornelius du Preez testified
that he counselled Ms N.. She was disturbed by the incident, even
though he only
saw her some four months later.
[7]
Matingane confirmed that he went to Ms N.’s
office with Zungu. He denied that Zungu touched her breast or waist,
or that he
(Matingane) was fixing his trousers or had exposed his
stomach.
[8]
The employee, Zungu, confirmed the meeting.
He went around Ms N.’s desk to phone the HR manager, Lindiwe.
He denied touching
N..
The
award
[9]
The arbitrator latched onto the
contemporaneous email (quoted above) to find that “the tone of
the above email (written after
the incident) gives the impression
that both employees (Zungu and Matingane) were harassing her”.
He then found that he had
“difficulties coming to terms with
the applicant’s [i.e. Zungu’s] evidence in this
arbitration”; yet he
found Ms N. not to be a credible witness
for the following reasons:
9.1
She testified that she reported the matter
immediately after Zungu and Matingane had left her office; yet the
arbitrator found that
she had reported it “an hour later”.
9.2
N. could not recall any “nasty
comments” that Zungu had allegedly made.
9.3
N. mentioned “policies and
procedures” that employees must adhere to, yet she did not
report the comments to management.
[It is common cause that she did
report the alleged sexual harassment].
9.4
In her examination in chief she did not
mention Matingane exposing his stomach.
9.5
She testified that Matingane was not her
focus; the alleged perpetrator (Zungu) was. To this, the arbitrator
asked, “then
why would she include his actions in her
complaint?”
9.6
The arbitrator formed the view that she had
“changed her version” because she mentioned Matingane’s
conduct in
the email complaining about Zungu touching her, but she
did not mention Matingane in her evidence in chief.
[10]
The arbitrator further found that Grobler’s
conclusion that Zungu had refused the polygraph test because he
probably “had
something to hide” was not substantiated by
any evidence.
[11]
The arbitrator rejected Du Preez’s
evidence that Ms N. was traumatised because he only saw her four
months after the incident.
[12]
The arbitrator found that it was probable
that Zungu went to N.’s desk to make a phone call and not to
harass her. He does
not explain why.
[13]
The Commissioner also found that, if the
incident had happened, N. “would have screamed for help”.
[14]
He concluded:
“
In
the light of the evidence above I am persuaded to accept the version
of [Zungu] to be more probable. As such I find that the
[employee]
did not touch [N.] in an inappropriate manner and accordingly find
that the [employee] did not breach the rule rendering
his dismissal
substantively unfair.”
Review
grounds
[15]
Ms
Edwards
argued that the Commissioner committed a number of gross
irregularities that resulted in a decision which a reasonable
decision-maker
could not reach, given the material before him.
[4]
[16]
She
further argued that the commissioner did not come to a proper finding
on the probabilities, having assessed the credibility
of the
witnesses; their reliability; and the inherent probabilities of the
two conflicting versions.
[5]
Evaluation
/ Analysis
[17]
The commissioner’s adverse findings
with regard to Ms N.’s credibility rested almost entirely on
the fact that she did
not mention Matingane’s conduct –
allegedly tucking his shirt in and exposing his stomach – in
her evidence in
chief. The commissioner drew an adverse inference
because Ms N. had mentioned that in her contemporaneous email to the
HR manager,
Lindiwe.
[18]
That is a wholly irrational conclusion. Ms
N.’s complaint was aimed at Zungu touching her, not Matingane,
who was a bystander.
The arbitration concerned Zungu, not Matingane.
Zungu was the applicant. He had been dismissed. He complained that it
was unfair;
Ms N. was arguing the contrary. It is hardly surprising
that she focused on him touching her inappropriately, rather than the
lesser
incident of Matingane, a bystander, allegedly exposing his
stomach while tucking his shirt in. The arbitrator’s
credibility
finding on this basis was irrational and unreasonable.
That, in turn, tainted his ultimate conclusion on the probabilities.
[19]
The commissioner’s finding on the
email – that Ms N. had sent it an hour after the incident, and
that she “did
not have any explanation why it took her an hour
to report the incident” – is also without foundation. She
testified
that Zungu and Matingane had entered her office at about
11h50. It is clear from the email itself that she sent it at 12h00,
ten
minutes later. Rather than detracting from her credibility, the
content of the contemporaneous email adds to it.
[20]
The
polygraph evidence is perhaps of lesser significance. Such evidence
is not, in itself, indicative of credibility or otherwise.
[6]
But the arbitrator completely disregarded the fact that Zungu had
refused to undertake such a test or to draw any adverse inference
from it. That also tainted his reasoning and ultimate conclusion,
making it unreasonable.
[21]
The commissioner had no reasonable basis
for completely disregarding the evidence of Du Preez, the counsellor.
The mere fact that
he spoke to the alleged victim a few months after
the incident does not mean, without more, that his evidence that she
was still
traumatised should be disregarded. The victims of sexual
harassment are often traumatised years after the incident.
[22]
The
same consideration is applicable to Ms N. not having screamed for
help. Victims of sexual harassment often feel powerless at
the time.
As the LAC remarked in
Campbell
Scientific Africa (Pty) Ltd v Simmers
[7]
:
“
By
its nature such harassment creates an offensive and very often
intimidating work environment that undermines the dignity, privacy
and integrity of the victim and creates a barrier to substantive
equality in the workplace. It is for this reason that this Court
has
characterised it as “the most heinous misconduct that plagues a
workplace”.
Conclusion
[23]
The misdirections by the commissioner; his
failure to assess the credibility of the witnesses and the
probabilities; and his failure
to take relevant evidence into
account, taken cumulatively, led to an unreasonable result. This is,
in my view, one of those rare
cases where the result is so
unreasonable that no reasonable commissioner, acting reasonably,
could have come to the same conclusion.
[24]
The applicant asked for the dispute to be
remitted to the CCMA for a fresh hearing before another commissioner.
I agree. Another
commissioner will be in a position to consider the
evidence relating to Zungu – as opposed to Matingane –
properly,
and to consider the credibility of the witnesses, their
reliability, and the probabilities.
[25]
The
new commissioner will also have to take into account the amended Code
of Good Practice on the Handling of Sexual Harassment
Cases in the
Workplace
[8]
which defines sexual harassment as –
“‘
…
unwelcome
conduct of a sexual nature that violates the rights of an employee
and constitutes a barrier to equity in the workplace,
taking into
account all of the following factors:
4.1
whether the harassment is on the prohibited grounds of sex and/or
gender and/or sexual orientation;
4.2
whether the sexual conduct was unwelcome;
4.3
the nature and extent of the sexual conduct; and
4.4
the impact of the sexual conduct on the employee.’
[26]
In
this case, the commissioner must decide, on the probabilities, if
Zungu (a man) did touch N. (a woman) inappropriately; whether
it was
unwelcome, as she testified in the first arbitration; and although it
was a single incident, whether she was traumatised,
as she told the
counsellor, Du Preez. If so, the commissioner must decide if
dismissal was a fair sanction. The LAC in
Simmers
again:
[9]
“
[T]he
sanction imposed serves to send out an unequivocal message that
employees who perpetrate sexual harassment do so at their
peril and
should more often than not expect to face the harshest penalty.
[27]
Concerning costs, I take into account that
the employee, Mr Zungu, had an award in his favour; that there is an
ongoing relationship
between his trade union, NUM (the third
respondent) and the employer; and that the matter must be remitted
for a fresh arbitration.
Taking law and fairness into account, I do
not consider a costs award to be appropriate.
Order
[28]
I therefore make the following order:
28.1
The arbitration award of 17 May 2013 under
case number MP 231-13 is reviewed and set aside.
28.2
It is remitted to the CCMA for a fresh
arbitration before a commissioner other than the first respondent.
_______________________
Steenkamp
J
APPEARANCES
APPLICANT:
Ms M E Edwards of Mervyn Taback
Inc.
THIRD AND FOURTH RESPONDENTS:
Mr M S Molebaloa (attorney).
[1]
The fourth respondent. He was represented by his trade union, the
National Union of Mineworkers (NUM), cited as the third respondent.
[2]
Commission for Conciliation, Mediation and Arbitration (the second
respondent).
[3]
The first respondent.
[4]
Sidumo v Rustenburg
Platinum Mines Ltd
[2007]
12 BLLR 1097
(CC) para [110];
Herholdt
v Nedbank Ltd
[2013] 11
BLLR 1074
(SCA) para [25].
[5]
Stellenbosch Farmers Winery
Group Ltd v Martell et cie
2003
(1) SA 11
SCA para [5].
[6]
Cf
DHL Supply Chain (Pty)
Ltd v De Beer NO
(2014) 35
ILJ
2379
(LAC) para [11] – [12].
[7]
[2015] ZALAC 51
(23 October 2015) para [21].
[8]
GN 1357 of 2005, issued by the Minister of Labour in terms of
s
54(1)(b)
of the
Employment Equity Act 55 of 1998
.
[9]
Above para [35].