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[2017] ZALCJHB 72
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University of Venda v Maluleke and Others (JR2125/13) [2017] ZALCJHB 72; (2017) 38 ILJ 1376 (LC) (28 February 2017)
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THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
no: JR 2125 / 13
In the matter between:
UNIVERSITY OF
VENDA
Applicant
and
LIFE REUBEN
MALULEKE
First Respondent
CHRISTOPHER MANNDE N.O. (AS
ARBITRATOR)
Second Respondent
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
Third Respondent
Heard:
12 September 2016
Delivered:
28 February 2017
Summary:
CCMA
arbitration proceedings –
Review
of proceedings, decisions and awards of arbitrators – Test for
review – Section 145 of LRA 1995 – application
of review
test set out – determinations of arbitrator compared with
evidence on record
Evidence – evaluation thereof
by arbitrator – arbitrator failing to make any credibility
findings of witness testimony
– constituting irregularity –
issue of credibility of witnesses considered
Evidence – evaluation and
determination thereof – no proper assessment of probabilities –
approach of arbitrator
irregular – proper probabilities
considered
Dismissal – sexual harassment
– principles considered and applied – complainants
sexually harassed by employee
– dismissal fair in the
circumstances
Review of award – conclusion
of arbitrator irregular and unreasonable – arbitration award
reviewed and set aside –
substituted with award that dismissal
fair
Cross review – time limit for
filing the cross review – principles considered – cross
review materially late –
no proper case for condonation made
out – cross review dismissed
JUDGMENT
SNYMAN, AJ
Introduction
[1]
The
applicant has instituted a review application in this Court seeking
to review and set aside an arbitration award made by the
second
respondent in his capacity as an arbitrator of the Commission for
Conciliation, Mediation and Arbitration (‘the third
respondent’). This application has been brought in terms of
Section 145 of the Labour Relations Act
[1]
(‘the LRA’). This is however not the only
application to be considered. The first respondent has
instituted
a cross review application, in terms of which the first
respondent seeks to review and set aside certain of the findings
contained
in the second respondent’s award, as well.
[2]
This
matter has as its origin the dismissal of the first respondent by the
applicant for misconduct relating to what can readily
be described as
sexual harassment, which dismissal the first respondent pursued as an
unfair dismissal dispute to the third respondent.
This dispute came
before the second respondent for arbitration on 27 May and 12 to 14
August 2013. Following the conclusion
of the arbitration
proceedings, and in an arbitration award dated 27 August 2013, the
second respondent found in favour of the
first respondent, and
determined that the dismissal of the first respondent by the
applicant was procedurally fair, but substantively
unfair. The second
respondent directed that the first respondent be reinstated with
retrospective effect to the date of his dismissal,
and be paid back
pay of R420 000.00, being an amount equivalent to 12(twelve)
months’ salary. It is this award
of the second respondent
that then gave rise to this review application brought by the
applicant.
[3]
As to
the cross review by the first respondent, this came about as a result
of certain factual findings made by the second respondent,
in terms
of which the second respondent found that the first respondent
did commit the misconduct complained
of towards one of the individual complainants, even though the second
respondent found it was
not sexual harassment
per
se
. The first
respondent is dissatisfied with this finding, in essence contending
that he should have been acquitted of any
misconduct, and the cross
review is aimed at achieving this. The first respondent also
challenged the finding that his dismissal
was procedurally fair, in
the cross review.
[4]
The
applicant received the arbitration award on 28 August 2013, and
served and filed its review application on 9 October 2013, the
last
day on which it was due. This means that review application was
thus timeously brought and is properly before Court.
[5]
The
cross review, as stated, is founded on the same arbitration award
handed down on 27 August 2013. The notice of motion
and
founding affidavit in the cross review was only filed on 21 August
2015, close on two years later. This is clearly late,
and
condonation was needed. The first respondent then indeed also
applied for condonation for the late filing of his cross
review
application.
[6]
I
will
now proceed with deciding both
the
applicant’s review application, as well the first respondent’s
cross review, by firstly dealing with the application
for condonation
for the late filing of the first respondent’s cross review.
Condonation:
cross review
[7]
As
stated above, the first respondent’s cross review was filed on
21 August 2015, which was more than a year after the pleadings
in
this matter had already closed. Also, the applicant had already
filed its heads of argument three months earlier.
[8]
I can
see no reason why any party who seeks to bring a cross review
application, which arises out of the exact same award forming
the
subject matter of the main review application, should not bring such
an application within the same 6(six) weeks’ time
limit as
contemplated by Section 145 of the LRA.
[2]
This approach has been followed by this Court.
[3]
In
Zuma
and Another v Public Health and Social Development Sectoral
Bargaining Council and Others
[4]
the Court dealt with an application for condonation for the late
filing of a cross review. The Court held that the length
of
delay was about 12 months, which the Court calculated from the date
the award was first handed down.
[5]
[9]
In
particular, and in
Harmony
Gold Mining Company Ltd v Commission for Conciliation Mediation and
Arbitration and Others
[6]
it was held as follows:
‘
In
terms of section 145 of the LRA, an
application
for review has to be launched within six weeks of the date of
publication of the award to the parties. On Dyanti and
NUM's own
version the cross-review ought to
have
been filed on or about 15 December 2010, since they had received the
award on 3 November 2010. …
’
I
would agree with this kind of approach.
In
casu
,
this meant that the cross review application was due to have been
brought on or before 9 October 2013.
[10]
However,
and even if one applies a most generous approach, and accept that the
cross review need only be filed as part of the answering
affidavit
under Rule 7A(9), this means that the cross review would be due
within 10(ten) days of the date when the applicant complied
with Rule
7A(8).
[7]
The applicant filed its supplementary affidavit in terms of Rule
7A(8)(b) on 31 January 2014. The Court in
Harmony
Gold Mining
[8]
also followed a similar approach, and said:
‘
Further,
in any event, as at 13 April 2011, Harmony complied with its
obligations in the
main
review in terms of rule 7A(6) and (8) of this Honourable Court's
rules. Harmony's attorneys of record dispatched the record
to Dyantyi
and NUM's attorneys by registered mail and obtained proof of service
in this regard. As such, Dyantyi and NUM should
have launched their
cross-review
at
this point. However, Dyantyi and NUM wasted time and delayed for
almost a further four months.
’
Applying
this generous approach, the cross review would be due to have been
brought by 15 February 2014, at the latest.
[11]
Either
way, the cross review application is materially late, being either
close on 22 (twenty two) months late, or just more than
18(eighteen)
months’ late, and seeking condonation was certainly necessary.
In
specifically dealing with an application for condonation for the late
filing of a review application, the LAC in
A
Hardrodt (SA)
(Pty) Ltd v Behardien and Others
[9]
referred to the
judgment in
Queenstown
Fuel Distributors CC v Labuschagne NO and Others
[10]
and
said:
‘
The
principles laid down in that case included, firstly that there must
be good cause for condonation in the sense that the reasons
tendered
for the delay had to be convincing. In other words the excuse for
non-compliance with the six-week time period had to
be compelling.
Secondly, the court held that the prospects of success of the
appellant in the proceedings would need to be strong.
The court
qualified this by stipulating that the exclusion of the appellant's
case had to be very serious, i.e. of the kind that
resulted in a
miscarriage of justice.’
[12]
T
he
Court in
Academic
and Professional Staff Association v Pretorius No and Others
[11]
aptly summarized
all the considerations applicable to deciding condonation in the
instance of the late filing of a review application,
and said:
‘
The
factors which the court takes into consideration in assessing whether
or not to grant condonation are: (a) the degree of lateness
or
non-compliance with the prescribed time frame; (b) the explanation
for the lateness or the failure to comply with time frame;
(c)
prospects of success or bona fide defence in the main case; (d) the
importance of the case; (e) the respondent's interest in
the finality
of the judgment; (f) the convenience of the court; and (g) avoidance
of unnecessary delay in the administration of
justice. … It is
trite law that these factors are not individually decisive but are
interrelated and must be weighed against
each other. In weighing
these factors for instance, a good explanation for the lateness may
assist the applicant in compensating
for weak prospects of success.
Similarly, strong prospects of success may compensate the inadequate
explanation and long delay.’
[13]
In
the end, the general principles applicable to deciding applications
for condonation apply even more stringently where it comes
to review
applications. In
National
Union of Metalworkers of SA on behalf of Thilivali v Fry's Metals (A
Division of Zimco Group) and Others
[12]
the Court said:
‘
What
is clear from the judgment in
Hardrodt
is that general principles applicable to condonation applications are
even more stringently applied where it comes to a condonation
application for the late filing of a review application. In review
condonation applications, the explanation that needs to be submitted
must be compelling and the prospects of success need to be strong.
Where it comes to the issue of prejudice, the applicant in fact
has
to show that a miscarriage of justice will occur if the applicant's
case is not heard. The reason for these more stringent
requirements
is that review applications occur after the parties have already been
heard, presented their respective cases and
a finding has been made.
Under such circumstances, considerations of justice, fairness and
expedition require that challenges of
such findings must not be
delayed and must be completed as soon as possible.
’
The
Court in
Thilivali
[13]
added the following consideration when evaluating condonation
applications in reviews:
‘
It
must also always be considered that the applicant for condonation
actually bears the onus to prove good cause for condonation
to be
granted in terms of the principles set out above. There is, however,
an additional consideration which applies in employment
disputes in
determining whether an applicant for condonation has discharged this
onus. This is the fundamental requirement of expedition.
The
Constitutional Court has, as a matter of fundamental principle,
confirmed that all employment law disputes must be expeditiously
dealt with and any determination of the issue of good cause must
always be conducted against the back drop of this fundamental
principle in employment law …
’
[14]
I can
see no reason why all the considerations, as summarized above, should
not equally apply to applications for condonation for
the late filing
of a cross review application.
[15]
Dealing
firstly with the delay, there is no doubt that the delay in this
instance is material. What is required is that the
entire
period of the delay must be fully explained. In
setting out how the
explanation for the delay must be provided, the Court in
Independent
Municipal and Allied Trade Union on behalf of Zungu v SA Local
Government Bargaining Council and Others
[14]
held:
‘
In
explaining the reason for the delay it is necessary for the party
seeking condonation to fully explain the reason for the delay
in
order for the court to be in a proper position to assess whether or
not the explanation is a good one. This in my view requires
an
explanation which covers the full length of the delay. The mere
listing of significant events which took place during the period
in
question without an explanation for the time that lapsed between
these events does not place a court in a position properly
to assess
the explanation for the delay. This amounts to nothing more than a
recordal of the dates relevant to the processing of
a dispute or
application, as the case may be.’
[16]
The
first respondent’s explanation for the delay is not only
materially lacking, but to a large extent completely non-existent.
The explanation for the delay is contained in one paragraph of the
affidavit supporting the condonation application. All
that is
said therein is that the first respondent was not ‘properly
advised’, and consequently he dealt with the ‘aspects’
relating to the cross review in his answering affidavit. I have
difficulty accepting this explanation. The first respondent
is
a lecturer in the applicant’s law school. He filed a
detailed answering affidavit containing 167 pages of detailed
analyses, submissions, and criticisms of the findings of the second
respondent and the testimony presented by the witnesses in
the
arbitration. However he purportedly does not think to file a
cross review at this time. I simply do not buy this.
Also,
the cross review itself is supported by a founding affidavit
consisting of 56 pages with the same kind of detailed
particulars and
submissions. I cannot believe that the first respondent could
not appreciate or understand that he needed
to file his own cross
review at the outset if he wanted to challenge specific findings of
the second respondent. The first
respondent also does not take
this Court into his confidence by giving details of who advised him,
how exactly he was advised,
and when he was advised. As a
whole, the singular explanation provided is simply not plausible.
[17]
The
reason why the first respondent decided to file a cross review
application only in 2015, is in my view simple. This reason
is
that he received the applicant’s heads of argument on 22 May
2015. At this time, and having considered these heads,
it is
likely that the first respondent appreciated that there may well be
difficulties in the approach adopted by the second respondent
considering his own findings of fact, when applying the principles
relating to sexual harassment. The first respondent must
have
appreciated that he now needed to challenge the findings of fact of
the second respondent where it came to one of the complainants,
lest
it be found that these findings may well justify his dismissal as
they stood. But this belated action was far too little,
far too
late.
[18]
In
the end, the first respondent has offered no explanation at all for
the entire period from the date when the arbitration award
was handed
down in 2013, until the point of receiving the applicant’s
heads of argument in May 2015. The complete absence
of such an
explanation has to be fatal to the condonation application. In
the end,
the
approach of the applicant was quite simply that condonation was there
for the asking, which approach is clearly wrong.
The Court in
Seatlolo
and Others v Entertainment Logistics Service (A Division of Gallo
Africa Ltd)
[15]
was critical of
this kind of approach of entitlement, where the Court explained:
‘
It
is trite law that condonation should only be granted where the legal
requirements have been met and is not a default option.
It remains an
indulgence granted by a court exercising its discretion whilst being
cognizant of the criticism emanating from the
Constitutional Court
and the SCA and bearing in mind the primary objective of the
expeditious resolution of disputes articulated
in the Act.’
[19]
It is
equally trite that without any explanation for the delay, the issue
of prospects of success are actually irrelevant.
[16]
In
National
Education Health and Allied Workers Union on behalf of Mofokeng and
Others v Charlotte Theron Children's Home,
[17]
the Labour Appeal Court said that:
‘…
this
court has previously confirmed the principle that without a
reasonable and acceptable explanation for a delay the prospects
of
success are immaterial’
In
this case, and because the first respondent has not offered any
explanation for what is a material delay in bringing the cross
review, any prospects of success the first respondent may have in his
cross review cannot come to his assistance, and are rendered
immaterial.
[20]
The
first respondent’s condonation application for the late filing
of the cross review is thus doomed to fail. There
is no
explanation for what is a substantial delay. The issue of prejudice
has not been properly addressed in the condonation affidavit,
other
than the first respondent in essence making general statements that
no one will be prejudiced by the delay. Even if
the first
respondent’s cross review has merit, as he suggests, I consider
that the following
dictum
in
Ferreira
v Die Burger
[18]
describes what should equally apply
in
casu
:
‘
I
am sympathetic to the fact that the applicant may have a case but,
were we to grant this application, this court would subvert
a crucial
principle in matters which deal with personal relationships, namely
labour relations, that these disputes have to be
dealt with
expeditiously and finalized as quickly as possible. Where in a case
such as this, there has been so flagrant of violation
of the rules,
then, as Myburgh JP correctly decided, a lack of any explanation at
all shrugs off other considerations.’
[21]
In
the circumstances, the first respondent has failed to make out a
proper case for the granting of condonation for the late filing
of
his cross review application. The first respondent’s
application for condonation for the late filing of his cross
review
falls to be dismissed. As such, there is no cross review
properly before this Court for consideration. I shall
therefore
have no further regard to the first respondent’s cross review,
in deciding this matter.
[22]
The issue of condonation
of the cross review now being decided, I will turn next to the merits
of the
review
application of the applicant, by first setting out the relevant facts
in this matter.
The
relevant facts
[23]
The
first respondent was employed by the applicant as a senior lecturer
in its school of management services. The
first
respondent was also a part time lecturer in the applicant’s law
school. The first respondent commenced employment
on 31 January
1986 and was ultimately dismissed on 27 January 2012, as a result of
the events set out hereunder.
[24]
The first respondent was
also a member of the university council, and the general secretary of
the joint staff organisation representing
employees at the
university.
[25]
The applicant dismissed
the first respondent for misconduct relating to sexual harassment of
three female students. There
were a number of individual
incidents, giving rise to these charges, which will now be elaborated
on.
[26]
One of the incidents
related to a student called M. T. (‘T.’). She was
studying towards an LLB degree and the
first respondent was her
lecturer in administrative law and interpretation of statutes.
The incident occurred at the time
of the year end examinations of
2010 held in November 2010.
[27]
On 14 November 2010, T.
was on the way to block A, together with a friend, D. S. (‘S.’),
to study. They came across
the first respondent, who called
them both over. After they joined the first respondent, he proceeded
to ask them for their cellphone
numbers which they wrote down for
him. The first respondent then said that he would call T. later
with regard to assisting
her with her marks.
[28]
Some time later whilst
she was studying, T. was contacted by the first respondent on her
cellphone. The first respondent requested
T. to meet him at the
sports hall. T. obliged, and accompanied by S. part of the way, went
to the sports hall. When she arrived
at the sports hall, she
saw the first respondent standing with a group of people. But
when the first respondent saw her,
he separated himself from this
group and came to T..
[29]
The first respondent,
when then standing alone with T., told her that there was no way in
which she could pass the course as she
has plagiarized work.
The first respondent however told T. that he could arrange for her to
pass the course if she paid him
‘with her body’.
The first respondent thus suggested to T. that he would ensure that
she passed the course if
she had sexual intercourse (‘intercourse’)
with him. T. was shocked at the suggestion, but said to the first
respondent
that she ‘would think about it’. T. then
left and immediately told S. what had happened.
[30]
The first respondent
persisted in his pursuit of T.. He later phoned her again, and
told her to meet him next to the book
shop. Again, T. obliged
and went to meet the first respondent there. This time he was
alone. The first respondent
suggested to T. that she come to
his residence and he would assist her with an assignment. T.
answered that she could not,
because she was studying for exams at
the time. The first respondent then proceeded to pull T.
towards him, grabbed her buttocks
and kissed her. T. reacted by
pushing the first respondent away, and moved away. T. again
told her friend S. what had
happened.
[31]
It may be added that T.
failed the course under the auspices of the first respondent as
lecturer, but passed the course the
following year under the auspices
of another lecturer.
[32]
The second incident
concerned another female student, N. N. (‘N.’). She
was also a law student in 2010, with the
first respondent being her
lecturer in administrative law and interpretation of statutes.
N. asked the first respondent for
assistance for a group topic for a
group assignment. The first respondent told her that the group
had to come to the office
to rewrite the names of the group before he
could assist.
[33]
Later, the first
respondent asked N. to come to his office. She went to his
office, with the view to once again ask for assistance
with the group
topic. She was accompanied by her friend L.. The first
respondent told her that he was going to give
them a zero mark
because they were not serious about the group topic assignment.
He however then asked that if he did give
a topic, what would he get
in return? N. understood this to mean that the first respondent
was proposing sexual favours in
exchange for a topic. N. was
not willing to agree to this, and she subsequently received a zero
mark for the assignment.
[34]
N. however qualified to
write exams that year. In the case of students that did not
qualify to write exams, they could attend
at the first respondent’s
office to make oral presentations as to why they should nonetheless
be permitted to write exams.
N.’s friend, L., was one of
these students that went to make oral presentations. L., after
leaving the first respondent’s
office, came to N. and told her
that first respondent had asked her to inform N. that if she wanted
to boost her marks, she could
come and see the first respondent.
N. then indeed went to the first respondent’s office. She
was then awarded
60%, without her having to actually make
presentations. There was however no need for her to have made
presentations in the
first place.
[35]
The first respondent
told N. not to tell the other students that he gave her 60%.
The first respondent told her that he ‘wanted
her’, and
that it had been a ‘long time’ that he wanted her.
The first respondent however did not touch
her, and she left.
[36]
The third incident
concerns F. N. (‘N.’). The first respondent was her
administrative law lecturer in 2010.
In her case, events arose
when the first respondent distributed student scripts in class on 16
November 2010. She however
did not get hers. The first
respondent announced that those students that did not get their
scripts had to come to his office,
and she went to his office, and
joined a queue of students.
[37]
When N.’s turn
came to enter the first respondent’s office, she was not given
her script. She was however shown
a mark sheet reflecting that
her mark was 5%. She queried this, and was asked by the first
respondent if she was questioning
his authority. The first
respondent then asked for her cellphone number, which she gave,
saying he would call her later.
She then left.
[38]
At around 19h00 that
same day, the first respondent then called N.. He told her that
she could come to his office to collect
her script. She told
him she was ill and could not come. But later that same
evening, she was told by a fellow student
that the first respondent
was still in his office, so she decided to go and collect her
script. She then went to the office
of the first respondent at
about 21h00, and found him still there. The first respondent
gave N. her script, on which she
saw that he wrote a mark of 25%.
The first respondent told her that he had done her a favour, as she
did not deserve this
mark. The first respondent then asked N.
to go and have drinks with him, and exchange her body for further
marks. N.
told the first respondent that she needed to go and
study and left.
[39]
The first respondent
denied committing any of the acts referred to above. As to T.,
he admitted that he had met T. in November
2010 as she alleged, but
contended that she had come to him to ask him if he had finished
marking her assignment script, and he
told her he had not.
According to the first respondent, it was also T. that asked him to
do her a favour by giving her a
60% mark. He said he never
touched or kissed her or asked for her body.
[40]
As to N., the first
respondent said that none of what N. stated had happened. He
admitted that N. did come to his office to
do an oral presentation
and he gave her a mark according to her presentation, and that was
all that happened.
[41]
Where it came to N., the
first respondent stated that he was not even in the office on the
evening when N. said she had come to
the office to collect her
script. All that had happened was that he did call her that
evening to tell her to collect her
script, which she only did the
following day, 17 November 2010. He said that he could not have
used a mark sheet to record
a mark of 5% as alleged, as mark sheets
were no longer used. He contended he never made suggestions to
N. as she alleged.
[42]
The applicant had a
policy on sexual harassment in place, which was adopted effective 1
December 2009. The policy applied
not only between employees of
the applicant, but to students of the institution as well. The
policy defined ‘sexual
harassment’ as including unwelcome
sexual advances in exchange for favours, or other requests which are
objectionable in
the context of the working environment. Of
particular application in this case, unwanted behavior constituting
sexual harassment
is defined as being ‘
intimidation
of students into submitting to unwanted sexual advances in return for
marks’
. A
procedure is then also prescribed in terms of which sexual harassment
can be reported and dealt with.
[43]
On 18 November 2010, T.,
N. and N. filed a group complaint about the conduct of the first
respondent, with the management of the
applicant. They formally
accused him of sexual harassment. They undertook to write individual
detailed statements, if required.
Following this group
complaint, the three complainants were indeed asked to provide
individual statements, which they did.
[44]
The first respondent was
then informed in writing on 25 November 2010 of the allegations
brought against him by the three complainants,
with particulars of
the same. He was also provided with the three individual
statements. He was asked to respond to
these allegations. The
first respondent provided a comprehensive response dated 23 December
2010. All of this conforms, more or
less, with the process in terms
of the applicant’s sexual harassment policy. After
evaluating all the information obtained,
the applicant informed the
first respondent on 11 March 2011 that it was satisfied that there
existed a
prima facie
case which he had to answer.
[45]
The applicant then
raised charges against the first respondent, which it brought on 21
April 2011. Charges 1 and 2 were labeled
to be that of ‘gross
misconduct’, and related to the two incidents in respect of T.,
being in short where he offered
her marks in exchange for intercourse
with him, and where he proceeded to touch her buttocks and kiss her.
Charge 3 is equally
labeled as one of gross misconduct and relates to
the incident in respect of N. which also concerned offering her marks
in exchange
for her body. Finally, charge 5, also a gross
misconduct charge, related to N. and the incident where he said that
he wanted
her. There were two other charges (charge 4 and 6)
which were not persisted with in the arbitration proceedings,
therefore
I will not deal with these charges any further.
[46]
Comprehensive
disciplinary proceedings then took place on these charges, before an
independent chairperson, over the period from
April 2011 to August
2011. The transcript of the evidence in the disciplinary
hearing encompasses close on two lever arch
files. Written
submissions in mitigation and aggravation were submitted. In a
written finding dated 8 December 2011,
the chairperson recommended
the dismissal of the first respondent. The first respondent
appealed, but the appeal was not
successful. The first
respondent then pursued his dismissal as an unfair dismissal dispute
to the CCMA, and it is this dispute
that ultimately came before the
second respondent for arbitration.
[47]
Turning
then to the arbitration award of the second respondent, he found in
dealing with substantive fairness, that the
first
respondent had indeed conducted himself towards T. as reflected in
the charges raised, which the second respondent himself
considered
inappropriate behaviour. The second respondent however found that
this conduct did not amount to sexual harassment.
Where it came to
the incidents in respect of N. and N., the second respondent in
effect acquitted the first respondent of the charges.
The second
respondent accordingly held that the first respondent’s
dismissal was substantively unfair. The second respondent
also
considered the issue of procedural fairness, and found the first
respondent’s dismissal to be procedurally fair.
The
second respondent then directed that the first respondent be
retrospectively reinstated with
12
months’
back
pay, as referred to above.
The
test for review
[48]
The
appropriate test for review is now settled. In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[19]
Navsa
AJ held that the standards as contemplated by Section 33 of the
Constitution
[20]
are in essence to be blended into the review grounds in Section
145(2) of the LRA, and remarked that ‘
the
reasonableness standard should now suffuse s 145 of the LRA
’
.
The learned Judge held that the threshold test for the reasonableness
of an award was:
‘…
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?...
’
[21]
[49]
Accordingly,
in every instance where the constitutionally suffused Section
145(2)(a)(ii) pursuant to
Sidumo
is sought to be applied to substantiate a review application, any
failure or error of the arbitrator relied on must lead to an
unreasonable outcome arrived at by the arbitrator, for this failure
or error to be reviewable. In my view therefore, what
the
review applicant must show to exist in order to succeed with a review
application in this instance is firstly that there is
a failure or
error on the part of the arbitrator. If this cannot be shown to
exist, that is the end of the matter.
But even if this failure
or error is shown to exist, the review applicant must then further
show that the outcome arrived at by
the arbitrator was unreasonable.
If the outcome arrived at is nonetheless reasonable, despite the
error or failure that is equally
the end of the review application.
In short, in order for the review to succeed, the error of failure
must affect the reasonableness
of the outcome to the extent of
rendering it unreasonable.
In
Herholdt
v Nedbank Ltd and Another
[22]
the Court said:
‘…
.
A result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that was before
the
arbitrator. Material errors of fact, as well as the weight and
relevance to be attached to the particular facts, are not in
and of
themselves sufficient for an award to be set aside, but are only of
consequence if their effect is to render the outcome
unreasonable.’
[50]
As to
the application of the reasonableness consideration as articulated in
Herholdt
,
the LAC in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[23]
said:
‘…
.
in
a case such as the present, where a gross irregularity in the
proceedings is alleged, the 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 a reasonable decision maker could
come to on the
available material.’
[51]
Accordingly,
the reasonableness consideration envisages a determination, based on
all the evidence and issues before the arbitrator,
as to whether the
outcome the arbitrator arrived at can nonetheless be sustained as a
reasonable outcome, even if it may be for
different reasons or on
different grounds.
[24]
This necessitates a consideration by the review court of the entire
record of the proceedings before the arbitrator, as well as
the
issues raised by the parties before the arbitrator, with the view to
establish whether this material can, or cannot, sustain
the outcome
arrived at by the arbitrator. In the end, the review
application would succeed only if the outcome arrived at
by the
arbitrator cannot be sustained on any grounds based on that material,
and the irregularity, failure or error concerned is
the only basis to
sustain the outcome the arbitrator arrived at.
[25]
In
Anglo
Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others
[26]
it was held:
‘…
.
the
reviewing court must consider the totality of evidence with a view to
determining whether the result is capable of justification.
Unless
the evidence viewed as a whole causes the result to be unreasonable,
errors of fact and the like are of no consequence and
do not serve as
a basis for a review.
’
[52]
Against
the above principles and test, I will now proceed to consider the
applicant’s application to review and set aside
the arbitration
award of the second respondent.
Grounds
of review
[53]
The
first part of the applicant’s review case as made out in the
founding affidavit is simple. According to the applicant,
with
the second respondent having accepted in his own award that the first
respondent had indeed committed the misconduct he had
been charged
with in respect of T., the second respondent committed a gross and
reviewable irregularity in not accepting that this
kind of conduct
constituted sexual harassment. According to the applicant, and
for this reason alone, the only reasonable
outcome could be that the
first respondent’s dismissal was fair, because he sexually
harassed T..
[54]
The
other part of the applicant’s review case concerns, in summary,
a complaint by the applicant as to the manner in which
the second
respondent dealt with and then determined the evidence relating to
the misconduct the first respondent had been charged
with where it
came to N. and N.. According to the applicant, had the second
respondent properly considered and determined
the evidence as a
whole, together with the pertinent probabilities, the only reasonable
outcome that he could have arrived at is
that the first respondent
also committed this misconduct, which equally constituted sexual
harassment, towards N. and N..
[55]
I
will now proceed to consider the review application based on these
two principal grounds of review, as summarized above.
Evaluation:
sexual harassment
[56]
The
second respondent was undoubtedly correct when he said that the issue
in this matter was principally one of sexual harassment.
The second
respondent accepted that the untoward behaviour committed by the
first respondent towards
T.
indeed occurred, but did not consider it to be sexual harassment.
At
least, and when deciding the review ground where it comes to the
misconduct towards T., with the cross review being disposed
of, the
second respondent’s findings of fact where it came to this
misconduct committed by the first respondent must stand.
[27]
[57]
The
second respondent accepted that the first respondent asked
T.
for sexual favours in exchange for giving her marks, in the context
of her failing the course. But the second respondent
reasoned
that this did not amount to sexual harassment, because T. initially
answered the second respondent’s advances by
saying she would
‘think about it’, and she never actually indicated to him
that this caused her discomfort or that
she considered the conduct
unacceptable. Then, as to the second incident, the second
respondent accepted that the first respondent
kissed T. and grabbed
her buttocks. According to the second respondent, this was the
first time T. indicated the conduct
was unwelcome, when she pushed
him away. The second respondent reasoned that even this was
still not sexual harassment, because
T. went to the sports hall when
the first respondent asked her to despite the earlier incident, and
the first respondent did not
repeat the conduct again after T. pushed
him away. The second respondent concluded that this conduct of the
first respondent was
‘inappropriate’ and not ‘befitting
a person of his stature’, but that was as far as the nature
misconduct
went. According to the second respondent, this misconduct
of the first respondent could be remedied by applying corrective
discipline
to the first respondent.
[58]
Can this kind of
reasoning of the
second
respondent, considering his own findings of fact, be considered to be
reasonable and thus sustainable? In my view,
and for the
reasons elaborated on hereunder, unfortunately not.
[59]
Once
the issue a CCMA arbitrator is required to determine is misconduct
relating to sexual harassment, certain imperatives come
into play.
In
Campbell
Scientific Africa (Pty) Ltd v Simmers and Others
[28]
the Court said:
‘
The
treatment of harassment as a form of unfair discrimination in s 6(3)
of the Employment Equity
Act
55 of 1998
(EEA)
recognises that such conduct poses a barrier to the achievement of
substantive equality in the workplace. …
’
The
Court then added:
[29]
‘
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
'
[60]
Accordingly,
a commissioner when considering this kind of misconduct must always
bear the objective of eliminating this kind of
barrier articulated in
Campbell
Scientific
,
in mind. And in order to do this, specific tools are provided,
by way of
the
Code of Good Practice on the Handling of Sexual Harassment Cases in
the Workplace
[30]
(‘the
Code’) issued in terms of the Employment Equity Act (‘the
EEA’)
[31]
.
This means that
once the second respondent became alive to the fact that the alleged
misconduct of the first respondent concerned
alleged sexual
harassment, the second respondent was compelled to have specifically
considered and applied the Code.
As
said in
SA
Metal Group (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[32]
:
‘
It
is peremptory then for a commissioner to apply the 2005 code when he
or she presides over arbitrations dealing with dismissals
for alleged
misconduct, in which alleged acts of sexual harassment constitute the
said misconduct. …
’
[61]
A
reading of the award of the second respondent shows that he did not
specifically refer to the provisions of the Code at all.
It
cannot even be said that the second respondent had regard to the
principles contained in the Code, even though not specifically
referring to it, because save for only dealing with what could be
considered to be ‘unwelcome’, there is a complete
absence
of any reasoning relating to most of the principles in the Code,
evident from the award.
In
Maepe
v Commission for Conciliation, Mediation and Arbitration and
Another
[33]
the Court said:
‘…
While
it is reasonable to expect a commissioner to leave out of his reasons
for the award matters or factors that are of marginal
significance or
relevance to the issues at hand, his or her omission in his or her
reasons of a matter of great significance or
relevance to one or more
of such issues can give rise to an inference that he or she did not
take such matter or factor into account.’
Already
in this respect, the award of the first respondent is grossly
irregular, as he failed to have regard to critical principles
he was
required to have considered.
[62]
However,
in terms of the review test as set out above, the existence of a
gross irregularity does not necessarily mean the award
is
reviewable. It must now be considered if the outcome arrived at
by the second respondent was nonetheless reasonable.
This
entails, firstly, a consideration of the actual provisions of the
Code, starting with the definition of ‘sexual harassment’
in clause 4:
‘
Sexual
harassment is 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.
’
[63]
In
Bandat
v De Kock and Another
[34]
the Court said the
following, with specific reference to the definition in clause 4:
‘…
What
is clear from the above provisions of the code is that central to the
existence of sexual harassment is conduct that must be
'unwelcome'.
If the conduct is not unwelcome, it cannot be sexual harassment. The
determination of whether conduct is 'unwelcome'
is an objective one,
because conduct that may be subjectively unwelcome to one person may
not be unwelcome to another.
’
The
Court in
Bandat
was dealing with how an employer must go about in assessing whether
conduct is unwelcome. Further, and considering that the
complainant in the case of sexual harassment is actually the victim
of what can only be considered as heinous misconduct, the point
of
view of the complainant cannot be ignored. As was said in
Motsamai
v Everite Building Products
(
Pty
)
Ltd
[35]
:
‘
Sexual
harassment is
the
most heinous conduct that plagues the workplace; not only is it
demeaning to the victim, it undermines the dignity, integrity
and
self worth of the employee harassed. …
Sexual
harassment goes
to
the root of one's being and must therefore be viewed from the point
of view of a victim; how does he/she perceive it, and whether
or not
the perception is reasonable.
’
[64]
As to
what may be considered to be ‘unwelcome’, this is also
specifically dealt with in the Code, in particular in clause
5.2,
where it is stipulated:
‘
5.2.1
There are different ways in which an employee may indicate that
sexual conduct is unwelcome, including
non-verbal conduct such as
walking away or not responding to the perpetrator.
5.2.2
Previous consensual participation in sexual conduct does not
necessarily mean that the conduct
continues to be welcome.
5.2.3
Where a complainant has difficulty indicating to the perpetrator that
the conduct is unwelcome,
such complainant may seek the assistance
and intervention of another person such as a co-worker, superior,
counsellor, human resource
official, family member or friend
.’
[65]
In
Bandat
[36]
,
the Court dealt with the most direct basis on which conduct could be
indicated to be unwelcome, where it was held:
‘
How
does one then go about in objectively determining whether the kind of
conduct as set out in clause 5 of the Code is unwelcome?
In my view,
the first question that has to be asked is whether the conduct was
ever complained about by the employee. This can
be done by the
perpetrator being informed that the employee considered the conduct
to be unwelcome and the perpetrator then being
called on to cease the
conduct. Or the employee can formally pursue a complaint with more
senior management using relevant harassment
policies that may be
applicable, or raising a grievance. …
’
[66]
However,
and as is clear from the above provisions in clause 5 of the Code,
indicating that the conduct is unwelcome goes beyond
just directly
declaring it to be unwelcome. In fact, and even if no complaint
or grievance is raised, the conduct may still
be considered to be
sexual harassment, provided a proper explanation is provided by the
complainant for not raising the complaint
earlier.
In
Makoti
v Jesuit Refugee Service SA
[37]
,
the Court said the following:
‘
The
applicant's testimony of the specific acts of sexually aggressive
behaviour of the director aimed at her was relatively detailed,
plausible and could not be directly contradicted by the respondent.
Understandably, the respondent sought to suggest that her account
ought not to be believed because she never raised any grievance about
it at the time. It is true that the applicant's failure to
make an
issue of a deeply felt grievance at the time when it was suffered
calls for a plausible explanation, which must be carefully
assessed.
’
[67]
Whether behaviour is
repeated must also be considered in the context of deciding whether
it is unwelcome. In simple terms,
the behaviour may be such
that the perpetrator should be able to reasonably assess for himself
or herself that it would be unwelcome,
considering the earlier
reaction from the complainant, prompting the perpetrator of his or
her own accord to not repeat it again.
In
Mokoena and
Another v Garden Art Ltd and Another
[38]
,
where the Court said:
‘
Sexual
attention becomes sexual harassment if the behaviour is persisted in,
although a single incident of harassment may constitute
sexual
harassment, the recipient has made it clear that the behaviour is
considered offensive and the perpetrator should have known
that the
behaviour would be regarded as unacceptable.’
And
in
Gaga v
Anglo Platinum Ltd and Others,
[39]
the Court
said
:
‘…
if
not the initial behaviour, then, at the very least, the persistence
therein is unacceptable…
’
[68]
Next, nonverbal
reactions by the complainant could also signal that the conduct is
unwelcome. This could take the form of
for example walking away
or turning away, pushing the perpetrator away, obstructing contact or
interaction with the perpetrator,
or engaging third parties to ‘run
interference’, so to speak.
[69]
Another
important consideration
in
deciding whether conduct is unwelcome
is
the actual dynamic and nature of the relationship between the
perpetrator and the complainant.
[40]
This dynamic must
not only be considered within the context of the employment
relationship, but also at a personal level. It may
well be that this
dynamic justifies and reasonably explains a situation where there is
no complaint about the conduct, despite
such conduct on face value
being conduct worthy of complaint. The Court in
Gaga
[41]
said:
‘
The
failure by the complainant to take formal steps against the appellant
should be construed likewise in the light of the personal
and power
dynamic in the relationship, which probably operated to inhibit the
complainant…’
[70]
The Court in
Campbell
Scientific
[42]
also considered the nature of the relationship between the
perpetrator and the complainant as to establishing whether the
conduct
is unwanted, and said the following, with reference to the
conduct of the perpetrator:
‘…
Far
from not being serious Mr Simmers capitalised on Ms Markides’
isolation in Botswana to make the unwelcome advances that
he did. The
fact that his conduct was not physical, that it occurred during the
course of one incident and was not persisted with
thereafter, did not
negate the fact that it constituted sexual harassment
…
Mr
Simmers’ conduct violated Ms Markides’ right to enjoy
substantive equality in the workplace. It caused her to be
singled
out opportunistically by Mr Simmers to face his unwelcome sexual
advances in circumstances in which she was entitled to
expect and
rely on the fact that within the context of her work this would not
occur. In treating the conduct as sexual harassment,
Ms Markides, and
other women such as her, are assured of their entitlement to engage
constructively and on an equal basis in the
workplace without
unwarranted interference upon their dignity and integrity. This is
the protection which our Constitution affords.
’
[71]
It does not matter that
the three complainants, T., N. and N., are not employees of the
applicant. The applicant’s own
policy on sexual
harassment provides that students are covered by it. Also, the
Code, and all its provisions, nonetheless
remains applicable, and any
of the kind of conduct contemplated by the Code, committed by the
first respondent towards the complainants,
would still constitute
sexual harassment. In
Campbell
Scientific
[43]
,
the Court held:
‘
Both
the 1998 and the amended codes of good practice provide that victims
of sexual harassment may include not only employees, but
also
clients, suppliers, contractors and others having dealings with a
business. …
’
The
Court concluded:
[44]
‘…
The
fact that Mr Simmers did not hold an employment position senior to
that of Ms Markides or that they were not co-employees did
not have
the result that no disparity in power existed between the two. His
conduct was as reprehensible as it would have been
had it been
metered out by a senior employee towards his junior in that it was
founded on the pervasive power differential that
exists in our
society between men and women and, in the circumstances of this case,
between older men and younger women.
’
[72]
Applying
the above, and if what the three complainants complained of is indeed
true, I am satisfied that it would qualify as being
unwanted conduct
as contemplated by the code. At least in the case of T., her
testimony as to this conduct was accepted by
the second respondent
himself. Whether the testimony of the other two complainants
should also have been accepted by the
second respondent is dealt with
later in this judgment. What does however appear to be
undeniable is that in response to
the conduct, all three complainants
in very close proximity to the incidents made formal statements to
complain about what happened,
first as a group, and then
individually. In the case of T., she also immediately told her
friend (
S.
)
about what happened, following each incident. Also, and when
the first respondent sought to kiss T. and touch her buttocks,
she
pushed him away, which indicates the conduct is unwanted
[45]
.
[73]
Even
if it can be said, as the second respondent suggests, that in the
case of T. she should not have told the first respondent
in response
to his suggestion of sexual favours for marks, that she ‘would
think about it’, this cannot change what
the first respondent
did. T. testified that she said this because she was
‘traumatised’. It is my view
that in the context of
the authorities referred to above, this kind of reaction by T. would
be a natural reaction by on the part
of a young student confronted
with such an unwanted proposition by her lecturer directly
responsible for her success in a course,
and is tantamount to trying
to escape from the situation instead of incurring the ire of her
harasser by expressly rejecting the
advance. She was trying to
protect her position as a student that needed to retain the good
graces of her lecturer who was responsible
for her passing the
subject.
[46]
It is what Waglay DJP (as he then was) called, in
Motsamai
[47]
,
a
‘dignified
retreat’. It is my view that for
T.
to say ‘I will think about it’, in this context, can
comfortably be considered to be same as declaring what was happening
to be unwanted. This is precisely the situation the Court
envisaged in
Gaga
[48]
where it was said:
‘…
It
would be unfair to the employer were the appellant to be allowed to
avoid liability for sexual harassment on the basis of the
ignorance
of his victim of the steps required to be taken in the policy and her
hesitation in taking them. The complainant's evidence
looked at as a
whole suggests that she was uncertain about how to deal with the
situation. Her conspicuous vacillation was an understandable
response
in a youthful and junior employee. She was placed in the invidious
position of being compelled to balance her sexual dignity
and
integrity with her duty to respect her superior; which obligation no
doubt was appreciably compromised by his behaviour.
’
[74]
A
critical consideration is the nature and dynamic of the relationship
that existed between the first respondent and the three
complainants. He was their lecturer and they were his
students. He was in a highly respected position, lecturing law
to susceptible young minds, and clearly has substantial power over
them as his students. There is a significant amount of trust,
if not
admiration, that exists between a student and a lecturer. Added
to that, the first respondent was an older male figure
as well,
standing against three young female students.
[49]
There exists what the Court called in
Campbell
Scientific
[50]
,
a substantial ‘
power
differential’, which makes exploitation by way of sexual
harassment possible.
[75]
Considering
the
kind
of relationship the first respondent had in this case, where it comes
to the three complainants, together with the substantial
power
differential, it must follow that the first respondent must always be
beyond any kind of reproach where it comes to his students
and his
dealings with them, especially his female students. This is actually
contemplated by the applicant’s sexual harassment
policy, where
it provides that propositions of a sexual nature in exchange for
marks is sexual harassment. The first respondent
should not even put
himself in a position where the kind of complaints which came forward
in this matter, were even possible.
The point is that
considering the first respondent’s particular position and
relationship vis-à-vis the three complainants,
he would
reasonably know that it is unlikely that they would challenge him if
he sought favours, and what he did can only be seen
as unwanted
exploitation of his position amounting to sexual harassment, no
matter what. I consider the following
dictum
from the judgment of the erstwhile Industrial Court in
J
v M Ltd
[51]
to be apt:
‘…
It
is difficult enough for a young girl to deal with advances from a man
who is old enough to be her father. When she has to do
so in an
atmosphere where rejection of advances may lead to dismissal, lost
promotions, inadequate pay rises, etc - what is referred
to as
tangible benefits in American law - her position is unenviable.
Fear
of the consequences of complaining to higher authority whether the
complaint is made by the victim or a friend, often compels
the victim
to suffer in silence. That sexual harassment of an employee in an
inferior position is despicable is only fully realized
when one has
to comfort a young girl crying her heart out in a quiet corner.
[76]
The next consideration
is whether what the first respondent did, on the version of the three
complainants, would entail the kind
of conduct that could be seen to
be sexual harassment.
The
Code, specifically in clause 5 thereof, deals with this, and
provides:
‘
5
.3.1
The unwelcome conduct must be of a sexual nature, and includes
physical, verbal or non-verbal conduct.
5.3.1.1
Physical conduct of a sexual nature includes all
unwelcome physical
contact, ranging from touching to sexual assault and rape, as well as
strip search by or in the presence of
the opposite sex.
5.3.1.2
Verbal conduct includes unwelcome innuendos, suggestions,
hints,
sexual advances, comments with sexual overtones, sex-related jokes or
insults, graphic comments about a person's body made
in their
presence or to them, inappropriate enquiries about a person's sex
life, whistling of a sexual nature and the sending by
electronic
means or otherwise of sexually explicit text.
5.3.1.3
Non-verbal conduct includes unwelcome gestures, indecent
exposure and
the display or sending by electronic means or otherwise of sexually
explicit pictures or objects.
5.3.2
Sexual harassment may include, but is not limited to, victimization,
quid pro quo
harassment and sexual favouritism.
5.3.2.1
Victimization occurs where an employee is victimized
or intimidated
for failing to submit to sexual advances.
5.3.2.2
Quid
pro quo
harassment occurs where a person such as an owner, employer,
supervisor, member of management or co-employee, influences or
attempts
to influence an employee's employment circumstances (for
example engagement, promotion, training, discipline, dismissal,
salary
increments or other benefits) by coercing or attempting to
coerce an employee to surrender to sexual advances. This could
include
sexual favouritism, which occurs where a person in authority
in the workplace rewards only those who respond to his or her sexual
advances.
’
The
aforesaid speaks for itself.
[77]
The
allegations
in
casu
concerns the first respondent offering to all three complainants
extra marks in exchange for having intercourse with him or providing
sexual favours to him. He suggested to them that he ‘wanted
them’. Individually, the first respondent conducted
himself as follows towards the three complainants: (1) the case of T.
he proposed intercourse in exchange for passing a course
and pulled
her close, grabbed her buttocks and kissed her; (2) in the case of
N.
he implied sexual favours for a research topic, and when she did not
accede to this, she received a zero mark; (3) in the case
of N., he
asked her out for drinks in the context of suggesting she exchange
her body for marks.
This
kind of conduct would without doubt be sexual in nature, and would
also be what is defined as
quid
pro quo
harassment
in the Code.
[78]
The
first respondent promised an advantage or benefit to the three
complainants in exchange for sexual favours, in circumstances
where
the awarding of that advantage or benefit would be within the power
of the first respondent to bestow (being the additional
marks awarded
or passing the course). In the case of T., the further incident
would be direct physical contact constituting
harassment as defined
in the Code. And in the case of
N.,
threatening to give her a zero mark and then actually giving her a
zero mark because she did not agree to his innuendo of a
sexual
nature, would be victimization as contemplated by the Code. In
summary, and if what the three complainants said happened
indeed
happened, the conduct of the first respondent would constitute sexual
harassment.
[79]
A
final issue to deal with is the approach by the second respondent to
the effect that following the second incident with T. where
she
pushed the first respondent away, the misconduct was never repeated,
the first respondent should in some way be excused.
This kind
of approach is entirely unacceptable. It is trite that even a
single incident can constitute sexual harassment.
[52]
Further, this incident of grabbing T. and kissing her must be
considered in the context of the earlier incident, where he
asked for
sexual favours in exchange for marks. The act of repeating the
conduct, when T. never acquiesced to his first request,
makes the
first respondent’s conduct in grabbing T.’s buttocks and
kissing her inexcusable, even if never repeated
again after that.
In
SA
Post Office Ltd v CCMA and Others
[53]
the Court dealt
with a comparable situation, and a similar finding made by a
commissioner. The Court said:
[54]
‘
In so far
as the second occasion is concerned, the commissioner found that
because she did not indicate that the touching
was unwelcome the
employee was unaware of her response thereto. In so concluding, the
commissioner failed to consider the evidence
of the second incident
later that same night after supper, when the employee performed the
same action and Jones successfully placed
physical barriers in the
form of colleagues between her and the employee.
…
The
employee ought to have foreseen from Jones's initial reaction to his
advances on the first occasion that any further advance
would not be
welcomed. However, he persisted with that conduct. When Jones did not
physically react to the first incident during
supper, and given her
initial rejection of his advances on the very first occasion during
the lunch, the employee probably assumed
that his advances were now
welcomed
.’
The
Court then concluded as follows with reference to the reasoning of
the commissioner:
[55]
‘…
He
paid no heed to the fact that at a rational level, Jones gave the
employee the benefit of the doubt the first time he made an
advance
on her and that only after she found the benefit to be misplaced did
she take control of the situation in a discreet and
effective way.
She was objectively not the girl who cried wolf.
’
These
same considerations would equally apply to the reasoning of the
second respondent in this instance.
[80]
The
second respondent is an educator. In
Grey
v Education Labour Relations Council and Others
[56]
the Court was
dealing with a sexual relationship that existed between a teacher and
a learner. The Could said:
[57]
‘…
Where
an educator has abused the position of trust in which he is employed,
and given that continued employment would require further
and ongoing
interaction with and exposure to children, dismissal is 'a sensible
operational response to risk management'
Although
such a sexual relationship in the case of teacher and learner is
prohibited by statute
[58]
the above
dictum
is not without some appropriate application
in
casu
.
I cannot see why these same sentiments should not equally apply in
the case of misconduct of sexual nature in institutions
of higher
learning between educators and students, where continued exposure of
the perpetrator to students is a reality.
In
Maepe
[59]
,
Jappie JA writing for the majority of the Court, dealt with sexual
harassment committed by a senior CCMA commissioner and said:
‘…
When
circumstances are present which cast serious doubt on the integrity
of a person holding a position such as that previously
held by the
appellant, then, in my view, such a person is not a fit and proper
person to be entrusted with such a position.
’
I
consider a university lecturer to occupy a similar kind of position.
[81]
It is
therefore in my view clear that the conduct of the first respondent
towards T. constitutes sexual harassment. The second
respondent’s findings that this was not the case is entirely
irregular, and equally not a reasonable outcome. I am
satisfied
that the only reasonable outcome has to be that what the first
respondent did where it came to T. constituted sexual
harassment.
[82]
In
the case of N. and N., if what they complained of is true, then this
would also constitute sexual harassment. But because
the second
respondent did not accept their testimony in this regard, it has to
be decided, in the next part of this judgment, whether
these findings
of fact of the second respondent is in any way irregular and/or
unreasonable.
[83]
I
conclude on this topic by saying that it is strictly speaking not
even necessary to consider the reasoning of the second respondent
where it came to the cases of N. and N., considering that the
misconduct and sexual harassment where it comes to T. only would
justify the dismissal of the first respondent for sexual harassment.
Referring to the sanction of dismissal upheld by a commissioner
for
sexual harassment, the Court in
Campbell
Scientific
said:
[60]
‘…
the
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.
’
[84]
Nonetheless,
and for the sake of being complete, I will now turn to determine
whether the first respondent indeed committed the
conduct with which
he had been charged by the applicant, where it comes to N. and N.,
and thus whether the findings by the second
respondent to the
contrary is reviewable.
Evaluation
of the evidence
[85]
According
to the applicant, the second respondent committed a gross and
reviewable irregularity in not also finding that the first
respondent
committed the sexual harassment towards N. and N. with which he had
been charged. As touched on above, and with
the cross review
being disposed of, the second respondent’s findings of fact
where it comes to T., not being challenged by
the applicant, stands.
This means that what happened to T. would also play a role in
deciding the cases of N. and N..
[86]
From
the outset, the second respondent dealt with the group complaint made
by the three complainants on 18 November 2010, and described
it as an
‘exaggerated piece of evidence’. The second respondent
also considered that the individual statements by the
three
complainants were different from the group statement. The
second respondent then decided to disregard this group statement,
in
favour of the individual statements. I can find little fault
with this reasoning. It is clear to me that the group
statement
was just intended to ‘get the ball rolling’, so to speak,
on the sexual harassment complaint. This
is evident from the
fact that the group statement specifically contemplated and mentioned
that individual statements from the three
complainants would be made,
should the applicant decide to take the matter further. This
group statement thus had no value
in deciding this matter, other than
proving a complaint was immediately brought by the complainants.
Its contents was properly
disregarded by the second respondent.
[87]
But
where it came to the witness testimony, I must confess that I have
difficulty with the manner in which the second respondent
dealt with
the evidence. Firstly, he never made any credibility findings
where it came to the testimonies of the various
witnesses that
testified before him. In particular, and considering the first
respondent’s complete denial that he had done
anything wrong,
it was important to have assessed his credibility. The complete
lack of credibility findings by the second
respondent is a material
failure and irregularity on his part.
As
was said in
Sasol
Mining
(
Pty
)
Ltd
v Ngqeleni NO and Others
[61]
:
‘
One
of the commissioner's prime functions was to ascertain the truth as
to the conflicting versions before him. The commissioner
was obliged
at least to make some attempt to assess the credibility of each of
the witnesses and to make some observation on their
demeanour. He
ought also to have considered the prospects of any partiality,
prejudice or self-interest on their part, and determined
the credit
to be given to the testimony of each witness by reason of its
inherent probability or improbability. He ought then to
have
considered the probability or improbability of each party's version.
The commissioner manifestly failed to resolve the factual
dispute
before him on this basis. ….’
[88]
The
versions presented by the witnesses for the applicant, on the one
part, and those for the first respondent, on the other part,
were
directly contradictory, as to whether the events complained of even
happened. This further necessitated proper reasoned
credibility
findings to have been made by the second respondent, which needed to
be reflected in his award.
In
Blitz
Printers v
Commission for Conciliation, Mediation and Arbitration and Others
[62]
the Court said the
following in finding the award of the arbitrator to be reviewable:
‘…
.
The
second respondent, had he discharged his duties properly, was
compelled to determine this conflicting evidence and thus decide
what
evidence to accept, and what to reject. The second respondent had to
assess credibility and probabilities and come to a proper
and
reasoned finding as to what evidence to accept. The second respondent
did none of this ….’
[89]
It is
my view that in cases such as these, which more often than not only
involve the perpetrator and complainant, proper credibility
findings
are important. This was also recognized in
Gaga
[63]
where the Court dealt with the situation where ‘
The
commissioner made no explicit finding accepting or rejecting the
appellant's total denial that he had ever made any suggestive
remarks
or had ever sexually propositioned the complainant
’
.
The Court held:
[64]
‘
In
the result, the commissioner's lapse in not performing a full
assessment of the complainant's credibility with reference to her
almost guileless candour, forthright demeanour, lack of bias, and the
consistency of her evidence in relation to the remarks and
propositions having been made and their unwelcome nature, as
supported by the inherent probabilities evident particularly in the
manner in which the complaint came to light, meant that he ignored
relevant considerations and failed to apply his mind properly
to
material evidence and the definitional requirements of sexual
harassment in the policy and the code. …
‘
[90]
If
one reads the award of the second respondent, it is clear that when
determining the evidence, all he does is to regurgitate the
testimony
of the complainants, the testimony of the first respondent in answer
thereto, and then makes a finding on what the second
respondent calls
the ‘probabilities’. There is simply no
consideration or any kind of analysis as to what testimony
must be
accepted, what must be rejected, and why. The conduct of the
second respondent in this respect is comparable to
the
following
dictum
from the judgment in
Sasol
Mining
[65]
,
where the Court said:
‘
Regrettably,
the commissioner's logic (or, more accurately, the lack of it)
permeates many of the awards that are the subject of
review
proceedings in this court. Some commissioners appear wholly incapable
of dealing with disputes of fact - their awards comprise
an often
detailed summary of the evidence, followed by an 'analysis' that is
little more than a truncated regurgitation of that
summary
accompanied by a few gratuitous remarks on the evidence, followed by
a conclusion that bears no logical or legal relationship
to what
precedes it. What is missing from these awards (the award under
review in these proceedings is one of them) are the essential
ingredients of an assessment of the credibility of the witnesses, a
consideration of the inherent probability or improbability
of the
version that is proffered by the witnesses, and an assessment of the
probabilities of the irreconcilable versions before
the
commissioner...’
[91]
It is
thus clear that the second respondent’s approach to considering
and deciding the evidence is a gross irregularity and
a material
failure. But does this mean that the outcome arrived at is
unreasonable? To answer this question necessitates
a complete
assessment of the testimony presented by the witnesses, as it appears
from the record.
[92]
A
reading of the transcript of the testimony of the witnesses in the
arbitration leaves me convinced that the testimony presented
by T.,
N. and N. emerged principally unscathed. To a large extent,
their respective testimonies matched the individual statements
they
had made in November 2010. Each one of them readily
conceded to the existence of differences between the group
statement
initially made, and their individual statements. Their versions
about what happened to them remained consistent
under what was
vigorous and extensive cross examination. Although I cannot
comment on their demeanour, the manner in which
they testified as
apparent from the transcript appears to be open and forthright. In
short, I could find nothing material in the
transcript that detracted
from the credibility of their evidence.
[93]
I may
add that all of the complainants had at the time of the arbitration
moved on into their respective careers, and had no vested
interest in
continuing to perpetrate a fabrication. There was simply no feasible
reason why individual female students would put
themselves through
the trauma of the case that followed (both in the disciplinary
hearing and in the arbitration), with the spotlight
firmly on them,
simply to get rid of or punish the first respondent. There was
no evidence of any prior difficulties or untoward
relationship,
between the three complainants and the first respondent. In
Gaga
[66]
the Court said the following about the issue of the absence of any
cause for fabricating such a version:
‘
The
complainant had no discernible reason to be dishonest about the
pattern of behaviour and her discomfort. Both she and the appellant
confirmed that in all other respects they had a good working
relationship. … For the court to accept the appellant's total
denials as truthful, we would be required to believe that the
complainant and Ms Mogaki, with unknown motives, had conspired to
falsely accuse the appellant of serious misconduct. Neither witness
displayed bias against the appellant of that order...’
I
consider the same reasoning applies
in
casu
,
especially having regard to what was mostly bald denials on the part
of the first respondent.
[94]
I
also find it hard to believe that three individual students, even if
they were friends, would spontaneously fabricate different
instances
of sexual harassment. This is especially so considering the
second respondent’s own findings that the first
respondent
indeed misconducted towards one of them (T.) in the manner as she had
complained about. So, and if one of them
did not fabricate the
events, it is unlikely that the other two would. Also, the
three of them could gain nothing by targeting
the first respondent,
because even if he was removed, they would not get better marks or
pass the course.
[95]
Considering
then the testimony of the first respondent, I do not believe he fared
as well as the three complainants in giving evidence.
He was
certainly an argumentative witness and even resorted to distorting
statements by the witnesses to suit his own purposes.
He gave
lengthy monologues about irrelevant issues. A fair amount of
his testimony was not based on his own recollection
of events, but
rather what he read from recorded testimony, such as that contained
in the earlier disciplinary hearing and statements
made therein.
Several aspects of his evidence was never put to any of the
applicant’s witnesses under cross examination.
[67]
As said in
Trio
Glass t/a The Glass Group v Molapo NO and Others
[68]
:
‘…
.
The
effect of the failure to put such an important issue to the
third respondent under cross-examination must mean that this
evidence
must be disregarded….’
[96]
In
the end, a proper consideration of the evidence leaves me satisfied
that the testimony of T., N. and N. is to be preferred over
the
testimony of the first respondent, on the basis of it being overall
more credible. But the enquiry does not end just
with a
credibility finding. As said in
SFW
Group Ltd and Another v Martell et Cie and Others
[69]
:
‘…
To
come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the various factual witnesses;
(b)
their reliability; and (c) the probabilities...’
[97]
What is thus also needed
is a probability finding, which entails a process of reasoning by way
of inferences to be drawn from the
facts, to arrive at a conclusion
that is the most natural, plausible and logical conclusion to be
drawn out of any number of possible
conclusions, from those
facts.
[70]
As said in
Bates
and Lloyd Aviation (Pty) Ltd v Aviation Insurance Co
[71]
:
‘
The
process of reasoning by inference frequently includes consideration
of various hypotheses which are open on the evidence and
in civil
cases the selection from them, by balancing probabilities, of that
hypothesis which seems to be the most natural and plausible
(in the
sense of acceptable, credible or suitable).’
This
reasoning was similarly adopted in
Food
and Allied Workers Union and Others v Amalgamated Beverage Industries
Ltd
[72]
,
where it was held as follows:
‘
The
fact that the evidence is consistent with the inference sought to be
drawn does not of course mean that it is necessarily the
correct
inference. A court must select that inference which is the more
plausible or natural one from those that present themselves
…’
[98]
Considering
that, at a level of credibility, the testimony of the witnesses for
the applicant is to be preferred, the facts as established
by the
testimony of these witnesses, together with the undisputed and common
cause evidence, must be utilized to draw the requisite
inference
referred to above. In this regard, a number of considerations
are pertinent, which I will now set out.
[99]
I can
see no reason why the first respondent would ask for the cell phone
numbers of students, and then call them at times which
are actually
after hours. There was no evidence that the first respondent
behaved in this fashion towards all students.
Also, each of
these students had an issue with marks, and the first respondent was
in a position to provide these marks.
The logical inference
that can be drawn from this is that the first respondent knew that he
could possibly extract sexual favours
from these students in exchange
for providing them with what he knew they needed.
In
Kok
v Commission for Conciliation, Mediation and Arbitration and
Others
[73]
the Court said:
‘…
I
must further say that I find it simply inexplicable why a branch
manager such as the applicant would telephone a contract cleaner
(who
does not even work for the third respondent) on nine occasions, and
even after hours. And also, why would the applicant take
the kind of
interest in Tshabalala as he did, but took no similar interests in
any of the other cleaners. To say that these issues
constitute
probabilities against the applicant is undoubtedly correct.
’
[100]
Also,
the three complainants immediately came forward and complained about
what happened to them. They presented these complaints
to the
highest authority in the applicant, and did so without asking for
anything in return. In the end, two of them still
failed the
course, but passed it the following year under the auspices of a
different lecturer.
[101]
The
second respondent, in dealing with the evidence of N., made much of
the fact of what he considered to be an improbability, where
it came
to her contention that she actually went to the first respondent’s
office the evening of 16 November 2010 to collect
her script, and not
the following day as suggested by the first respondent. According to
the second respondent, it was unlikely
that N. went to the first
respondent’s office that same evening, because she told the
first respondent when he called her
to come and get the script that
she was not feeling well and would come the next day. This
reasoning of the second respondent
indicates to me that he simply
misconstrued the evidence. N. never disputed and in fact
indicated of her own accord that
she initially did convey to the
first respondent that she would come to collect the script the next
day. What then happened
is that one M., who went to see the
first respondent that very evening, conveyed a message to her that
the first respondent was
still in the office and she could still go
to collect her script. She then changed her mind, and went to
collect it.
There is nothing unlikely in this. The one
situation does not contradict the other. It is mere one event
following on the
other, and circumstances changed after the further
message N. received.
[102]
The
specific probabilities that also support the version of N. is that on
the undisputed evidence, the first respondent asked for
her cell
phone number and called her to come and collect a script. As
touched on above, I cannot comprehend why a lecturer
would ask for a
student’s cell phone number to just call the student to come
and get her script. There is no reason
why he could not present
this script to her in the normal course of classes. Then there
is also the inexplicable situation
of N. going to the first
respondent’s office to collect her script, together with a
queue of other students that also went
to collect their scripts, but
instead of the first respondent actually giving it to her, he asked
for her cell phone number, and
called her much later that day, after
all the ‘normal student traffic’ for the want of a better
description, had dissipated,
to come and fetch it. This seems
part of a standard
modus
operandae
of the first respondent, and has many comparisons to the situation
with T.. In my view, probabilities indicate that the first
respondent had created a situation where could meet with and suggest
sexual favours from N., and then capitalize without risk of
possible
interruption should she be susceptible to the suggestion.
[103]
In
the case of N., the second respondent does appear to accept that N.
did qualify to write the exams, but nonetheless went to the
first
respondent’s offices for an oral presentation normally only
applicable to those candidates that did not qualify to
write the
exams. It is also not disputed that the second respondent gave
her 60%. The second respondent however concludes
that it was unlikely
that the first respondent propositioned N. for sex, as she contended
to be the case, for a two reasons.
The first reason was that it
was unlikely that the first respondent apologized to N. for remarks
he had allegedly made to her earlier
about her “attitude’
of not attending class. The second reason is that the applicant
did not investigate this
issue of N. being given ‘free marks’,
in essence implying that it was necessary to have taken action
against N. for
it.
[104]
I
have difficulty in sustaining this reasoning of the second
respondent, on any basis. The glaring and unanswered point is
why would a student that already qualified to write the exam go and
do an oral presentation reserved for those that did not qualify.
The only reason has to be that the first respondent promised her more
marks. In this context, the evidence of N. makes sense,
being
that she was given 60% without having to make a presentation, as she
did not need to make it in the first place. Once
again, this
situation created the opportunity for the proposition of sexual
favours. This is simply the most likely scenario.
To
simply seek to detract from this inference because of the non
existence of an apology on an unrelated issue and no action being
taken against N. for receiving these ‘free marks’, is
untenable.
[105]
N.
testified that the statement the first respondent made to her was ‘ke
a o batla’, which she interpreted to mean that
the first
respondent wanted her for sex. The second respondent seems to
reason that because the first respondent did not
touch her, it was
‘unfair’ for N. to interpret this statement in this way,
if indeed it happened. The reason
for this conclusion of the
second respondent was in essence a finding that because N. was
friends with the other complainants,
she probably heard about the
first respondent from them, leading her to interpret this statement
in this way. For the reasons already
elaborated on above when dealing
with the principles relating to sexual harassment, this kind of
reasoning by the second respondent
is entirely unsustainable. It is
about how N. as a complainant felt about the conduct, perceived the
statement, and not which interpretation
might be ‘fair’
or ‘unfair’ after the fact. The point is that it is a
statement that could readily have
the meaning that N. ascribed to it,
and considered in the context of this matter, this is most likely
exactly what was meant.
[106]
In the end, the most
natural, plausible and logical inference to be drawn from the facts,
as a whole, and as discussed above, has
to be that the first
respondent committed the misconduct towards N. and N. as well, and
his conclusions to the contrary is simply
not a reasonable outcome.
Thus, I have little hesitation in concluding that the first
respondent sexually harassed N. and
N. as well, as this being the
only reasonable outcome in this matter.
[107]
Based on the discussion
earlier in the judgment concerning the principles relating to sexual
harassment, and with it being accepted
that the first respondent
indeed sexually harassed N. and N. as well, his dismissal would be a
competent and fair sanction.
As
such, the applicant’s review application must succeed, and the
award of the second respondent falls be reviewed and set
aside in
this respect as well.
Conclusion
[108]
It is
therefore my conclusion that the reasoning and findings of the second
respondent to the effect that T., N. and N. were not
sexually
harassed by the first respondent is grossly irregular, and outside
the bands of what may be considered to be a reasonable
outcome.
It is thus not sustainable, and falls to be reviewed and set aside.
[109]
Having
reviewed and set aside the award of the second respondent where it
comes to the sexual harassment of T., N. and N. by the
first
respondent, I see no reason to remit this matter back to the third
respondent again for determination
de
novo
before another arbitrator. All the required evidence has been led and
is on record. The transcript is detailed, complete and extensive,
and
all the documentary evidence presented is part of the record. I
have all the evidentiary material available before me
so as to enable
me to finally determine this matter, which evidentiary material is in
any event unlikely to change in any newly
constituted
arbitration.
[74]
A further consideration is that one would not want to put all three
complainants, who have now clearly gone on with their lives
and have
fledging careers, to be put through the trauma of testifying about
these events again.
[110]
This,
matter, in the end, is one of sexual harassment, the first respondent
having sexually harassed all three complainants, T.,
N. and N..
It is the kind of conduct that is a scourge in the workplace
[75]
,
and must be rooted out of existence. In
F
v Minister of Safety and Security and another
(Institute
for Security Studies, Institute for Accountability in Southern Africa
Trust and Trustees of the Women's Legal Centre
as Amici Curiae)
[76]
the Court held:
'The
abuse of women and girl-children is rife in this country. ... This
was aptly articulated in
Carmichele
:
"'Sexual
violence and the threat of sexual violence goes to the core of
women's subordination in society. It is the single
greatest threat to
the self-determination of South African women.' . . . South Africa
also has a duty under international law to
prohibit all gender-based
discrimination that has the effect or purpose of impairing the
enjoyment by women of fundamental rights
and freedoms and to take
reasonable and appropriate measures to prevent the violation of those
rights."
'
There
cannot be any doubt that the dismissal of the first respondent must
be held to be substantively fair, especially considering
his
persistent denial that he did anything wrong.
[77]
I shall therefore substitute the award of the second respondent with
an award that the dismissal of the first respondent
by the applicant
was substantively fair.
[111]
This
then only leaves the question of costs. When it comes to the issue of
costs, and in terms of sections 162(1) and (2), I have
a wide
discretion. When exercising this discretion, I consider a costs award
against the first respondent to be entirely justified.
[78]
I say this for a number of reasons. Firstly, the first
respondent filed an answering affidavit consisting of 167 pages of
mostly irrelevant and argumentative contentions, and containing
references to evidence that was not even before the second
respondent.
The founding affidavit in the cross review is 56 pages of
mostly legal argument, having no place in such a pleading. The
first respondent also brought a condonation application of sorts,
purportedly under Section 158(1)(f) of the LRA, also encompassing
close on 100 pages (including annexures) of mostly completely
unnecessary and irrelevant information. The first respondent’s
cross review was ill founded, and clearly an afterthought, but still
required consideration. It must have been apparent,
in my view,
that the first respondent had little prospect in successfully
defending this matter, but still he soldiered on. Therefore,
I
consider a costs award against the first respondent to be warranted.
Order
[112]
In
the premises, I make the following order:
1.
The applicant’s review application is upheld.
2.
The first respondent’s cross review is dismissed.
3.
The arbitration award of the second respondent dated 27 August 2013
and issued
under case number LP 9048 – 12 is reviewed and set
aside.
4.
The arbitration award of the of the second respondent dated 27 August
2013 and
issued under case number LP 9048 – 12, is substituted
with an award that the dismissal of the first respondent by the
applicant,
was substantively fair.
5.
The first respondent is ordered to pay the applicant’s costs.
_____________________
S
Snyman
Acting
Judge of the Labour Court
Appearances:
For the
Applicant:
Adv Z M Navsa
Instructed
by:
Bowman Gilfillan Inc Attorneys
For the First Respondent:
In Person
[1]
Act 66 of 1995.
[2]
See
Section 145(1)(a) which reads: ‘Any party to a dispute who
alleges a defect in any arbitration proceedings …
may apply
to the Labour Court for an order setting aside the arbitration
award- (a) within six weeks of the date that the
award was
served on the applicant …’
[3]
See
Higgens
v Commission for Conciliation, Mediation and Arbitration and Others
[2013]
JOL 30844
(LC) at para 4.
[4]
(2016) 37 ILJ 257
(LC) at paras 24 – 25
[5]
Id
at para 27.
[6]
[2015] JOL 32867
(LC) at para 17.
[7]
Rule
7A(8) reads ‘The applicant must within 10 days after the
registrar has made the record available either- (a) by
delivery
of a notice and accompanying affidavit, amend, add to or vary the
terms of the notice of motion and supplement the supporting
affidavit; or (b) deliver a notice that the applicant stands by its
notice of motion’.
[8]
(
supra
)
at para 30.
[9]
(2002) 23 ILJ
1229 (LAC) at para 4.
[10]
(2000)
21 ILJ 166 (LAC)
.
[11]
(2008) 29 ILJ 318
(LC) at paras 17 – 18.
[12]
(2015) 36 ILJ 232
(LC) at para 22.
[13]
Id
at para 25.
[14]
(2010) 31 ILJ
1413 (LC) at para 13
[15]
(2011) 32 ILJ
2206 (LC) at para 27.
[16]
See
Mziya
v Putco Ltd
[1999]
3 BLLR 103
(LAC) at para 9;
NUM
v Council for Mineral Technology
[1999]
3 BLLR 209
(LAC) at 211G-H;
Colett
v Commission for Conciliation, Mediation and Arbitration and Others
(2014)
35
ILJ
1948 (LAC)
at
para 38.
[17]
(2004) 25
ILJ
2195
(LAC) at para 23.
[18]
(2008) 29
ILJ
1704 (LAC) at para 8.
[19]
(2007)
28 ILJ 2405 (CC).
[20]
Constitution of
the Republic of South Africa, 1996.
[21]
Id at para
110. See also
CUSA
v Tao Ying Metal Industries and Others
(2008)
29 ILJ 2461 (CC)
at
para 134;
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
(2008)
29
ILJ
964 (LAC) at para 96.
[22]
(2013)
34
ILJ
2795 (SCA)
at
para 25.
[23]
(2014) 35 ILJ 943
(LAC)
at
para 14. The
Gold
Fields
judgment was followed by the LAC itself in
Monare
v SA Tourism and Others
(2016) 37 ILJ 394 (LAC) at para 59;
Quest
Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp
Fulfilment Services (Pty) Ltd) v Legobate
(2015) 36 ILJ 968 (LAC) at paras 15 – 17;
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
(2015) 36 ILJ 2038 (LAC) at para 16.
[24]
See
Fidelity
Cash Management
(
supra
)
at para 102.
[25]
See
Campbell
Scientific Africa (Pty) Ltd v Simmers and Others
(2016) 37 ILJ 116
(LAC) at para 32.
[26]
(2015) 36 ILJ
1453 (LAC) at para 12.
[27]
See
Xstrata
SA (Pty) Ltd (Lydenburg Alloy Works) v National Union of Mineworkers
on behalf of Masha and Others
(2016)
37 ILJ 2313 (LAC) para 7.
[28]
(2016) 37 ILJ 116
(LAC) at para 19.
[29]
Id
at para 21.
[30]
GN 1357 in
GG
27865 of 4 August 2005 issued in terms of Section 54(1)
(b)
of the Employment Equity Act. See also GN 1367 in
GG
19049 of 17 July 1998 for the Code of Good Practice on the Handling
of Sexual Harassment Cases published in terms of the LRA.
The
two codes are virtually the same.
[31]
Act
55 of 1998
[32]
(2014) 35 ILJ
2848 (LC) at para 11.
[33]
(2008) 29 ILJ
2189 (LAC) at para 8.
[34]
(2015) 36 ILJ 979
(LC) at para 72.
[35]
[2011] 2 BLLR 144
(LAC) at para 20.
[36]
(
supra
)
at para 74.
[37]
(2012) 33
ILJ
1706 (LC) at para 44.
[38]
(2008) 29
ILJ
1196 (LC) a
t
para 47.
[39]
(2012) 33
ILJ
329 (LAC) at para 41.
[40]
See
Bandat
(
supra
)
at para 81.
[41]
Gaga
(
supra
)
at para 42.
[42]
(
supra
)
at para 33.
[43]
Id
at para 22. See also clause 2.1 of the Code.
[44]
Id
at para 33
[45]
See
Christian
v Colliers Properties
(2005)
26 ILJ 234 (LC) at 238H-239D.
[46]
Compare
SA
Metal Group
(
supra
)
at para 15.
[47]
(
supra
)
at para 18
[48]
Gaga
(
supra
)
at para 42.
[49]
See
Campbell
Scientific
(
supra
)
at para 20 where the Court said: ‘…
a
sexually hostile working environment is often less about the abuse
of real economic power, and more about the perceived societal
power
of men over women …’
[50]
Id
at para 27. See also
SA
Metal Group
(
supra
)
at para 15.
[51]
(1989) 10 ILJ 755
(IC) at 758B-E.
[52]
See
clause 5.3.3 of the Code;
Campbell
Scientific
(
supra
)
at para 22;
SA
Metal Group
(
supra
)
at para 20;
Bandat
(
supra
)
at para 76.
[53]
[2011] JOL 28128
(LC.
[54]
Id
at paras 102 – 103.
[55]
Id
at para 105.
[56]
(2016) 37 ILJ 379
(LAC).
[57]
Id
at para 16.
[58]
See
Section
17(1)
(c)
of the Employment of Educators
Act
76 of 1998
.
[59]
(
supra
)
at para 47.
[60]
(
supra
)
at para 35.
[61]
(2011) 32 ILJ 723
(LC) a
t
para 7.
In
SFW
Group
Ltd and Another v Martell et Cie and Others
2003 (1) SA 11
(SCA)
at
para 5, the Court said the following as to how to assess
credibility:
‘…
the
court's finding on the credibility of a particular witness will
depend on its impression about the veracity of the witness.
That in
turn will depend on a variety of subsidiary factors, not necessarily
in order of importance, such as (i) the witness'
candour and
demeanour in the witness-box, (ii) his bias, latent and blatant,
(iii) internal contradictions in his evidence, (iv)
external
contradictions with what was pleaded or put on his behalf…,
(v) the probability or improbability of particular
aspects of his
version, (vi) the calibre and cogency of his performance compared to
that of other witnesses testifying about
the same incident or
events. …a witness' reliability will depend, apart from the
other factors mentioned under (a) (ii),
(iv) and (v) above, on (i)
the opportunities he had to experience or observe the event in
question and (ii) the quality, integrity
and independence of his
recall thereof. …’
[62]
[2015] JOL 33126
(LC)
at
para 37.
[63]
(
supra
)
at para 29.
[64]
Id
at paras 43.
[65]
(supra)
at
para 7.
[66]
(
supra
)
at para 36.
[67]
ABSA Brokers
(Pty) Ltd v Moshoana N.O. and Others
(2005)
26
ILJ
1652
(LAC) at para 39;
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
(2010) 31
ILJ
452 (LC) footnote 13.
[68]
(2013) 34
ILJ
2662 (LC) at para 41.
[69]
2003 (1) SA 11
(SCA) at para 5.
[70]
See
Minister
of Safety and Security v Jordaan t/a Andre Jordaan Transport
(2000)
21 ILJ 2585 (SCA) at para 9;
Govan
v Skidmore
1952
(1) SA 732
(N)
at 734A-C;
Bates
and Lloyd Aviation (Pty) Ltd v Aviation Insurance Co
1985
(3) SA 916
(A)
at 939I-J;
Food
and Allied Workers Union and Others v Amalgamated Beverage
Industries Ltd
(1994)
15 ILJ 1057 (LAC)
at 1064C-E;
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
(2013)
34
ILJ
945 (LC) at para 37
[71]
1985
(3) SA 916
(A)
at 939I-J
.
[72]
(1994)
15 ILJ 1057 (LAC)
at 1064C-E
.
[73]
[2015] JOL 32888
(LC) at para 29.
[74]
See
Blitz
Printers
(
supra
)
at para 77.
[75]
See
Campbell
Scientific
(
supra
)
at para 33; Gaga (
supra
)
at para 48;
Erasmus
v Ikwezi Municipality and Another
(2016) 37 ILJ
1799 (ECG) at para 57.
[76]
(2012)
33
ILJ
93 (CC)
at
para
37
.
[77]
Kok
(
supra
)
at para 37;
SA
Post Office
(
supra
)
at para 142
[78]
Compare
Kok
(
supra
)
at para 40.