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[2017] ZALCJHB 491
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Tshivhase-Phendla v University of Venda (JS1145/12) [2017] ZALCJHB 491 (12 October 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no:
JS1145/12
In
the matter between:
THIDZIAMBI
TSHIVHASE-PHENDLA
Applicant
and
UNIVERSITY
OF
VENDA
Respondent
Heard
:
31 July-4 August 2017 and 18 September 2017
(Oral argument)
Delivered
:
12 October 2017
Summary:
A referral in terms of which the applicant alleges that she was
automatically unfairly dismissed. An employee who alleges
automatically
unfair dismissal is required to produce credible
evidence showing that he or she has been subjected to an
automatically unfair
dismissal. (First hurdle) Ordinarily, the
employer is the one knowing the reason why it dismissed an employee.
In
casu
, the respondent states that it dismissed
the applicant for misconduct. The applicant on the other hand alleges
that the true reason
for dismissal is that the respondent unfairly
discriminated her on the ground of sex. An employee must cross the
first hurdle before
an employer is behoved to show that the dismissal
is not for a prohibited reason. The Labour Court can only entertain a
dispute
that ought to have been referred to arbitration with the
consent of the parties and if it is expedient to do so. In
casu
,
the parties consented and it was expedient to do so.
Held: (1)
The applicant was not automatically unfairly dismissed. Held: (2) The
dismissal of the applicant is both substantively
and procedurally
fair. Held: (3) The applicant to pay the costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
This is a referral in terms of
section 191 of the Labour Relations Act
[1]
(LRA). The applicant alleges that the respondent subjected her to an
automatically unfair dismissal within the contemplation of
section
187 (1) (f) of the LRA as amended. In the alternative, the applicant
alleges that the dismissal was both substantively
and procedurally
unfair. On the other hand, the respondent disputes that the applicant
was subjected to an automatically unfair
dismissal. Instead, the
respondent contends that the applicant was dismissed for misconduct
and thus the dismissal is fair.
Background
facts
[2]
The respondent is an institution of academic
learning. Around 2006, the institution required the service of a
cleaning company.
At that time the applicant was in the employ of
another institution of academic learning known as University of
Pretoria. On the
respondent’s version, the applicant was
approached by a potential service provider and paid money to
influence the Council
of the respondent, where she sat as a member at
the time, to award the services to the said service provider. On the
applicant’s
version the delegation of the said service provider
indeed paid her a visit in order to benchmark cleanliness of academic
institutions.
[3]
Two years later, the applicant obtained employment
with the respondent. Later on one of the Unions raised an issue
around the improper
awarding of the cleaning contract. That led to an
agreement to conduct investigations in order to verify the
allegations of impropriety.
Subsequently, forensic investigators, who
fingered the applicant and others for the impropriety, produced a
report. Such led to
the applicant being charged, disciplined and
dismissed.
[4]
During the
course of the disciplinary hearing, the applicant revealed that she
has been subjected to sexual harassment by the Vice
Chancellor of the
respondent for a period of about two years. After dismissal she laid
complaints with some chapter 9 institutions
[2]
.
It is unclear to the Court whether those institutions resolved the
complaints or not. Suffice to mention that in one of the court
sittings the applicant’s counsel informed me that
representatives of the Gender Commission were present to keep the
proceedings
under watch.
[5]
Aggrieved by her dismissal, the applicant referred
a dispute of alleged automatically unfair dismissal alternatively
unfair dismissal.
The referral was late but this court condoned the
lateness.
[6]
Most if not
all the witnesses of the respondent confirmed the correctness of
their evidence at the disciplinary hearing. The applicant
chose to
give her evidence afresh in Court. The applicant however changed tack
and agreed with the respondent that the evidence
of Mulaudzi and
Moloto should be that which was tendered at the disciplinary hearing
contained in the transcript.
[3]
The original position of the applicant was that she would lead
evidence afresh in respect of her and her witnesses.
[7]
It is not necessary for the purposes of this
judgment to recount the evidence punctiliously.
Evidence
Led
Professor
Peter Mbati
[8]
He became
the Vice Chancellor of the respondent effective February 2008. During
the year 2010, he became aware of some allegations
by NEHAWU. The
allegations were raised in writing. Initially
PriceWaterhouseCoopers
(PWC) was appointed to investigate the veracity of the allegations.
Later on Deloitte and Touché (Deloitte) was appointed
to
conduct a forensic investigation. In November 2010, they produced a
report.
[4]
[9]
He confirmed
that during 2008, certain allegations were made regarding the
appointment of Clean Shop to provide cleaning services
to the
respondent. Allegations were made that the respondent’s
policies and procedures were not followed in the appointment
of Clean
Shop. Members of NEHAWU, a trade union representing workers of the
respondent, made some of the allegations. The respondent
requested
its internal auditors PWC to perform a preliminary investigation into
the matter. PWC found and reported irregularities
in the procurement
process. One such irregularity was the fact that Clean Shop did not
submit a tax clearance certificate. Following
the PWC report the
respondent appointed Deloitte to conduct a forensic investigation
into the appointment of Clean Shop.
[5]
[10]
Dr Zaayman
was in charge of the process leading to the appointment of Deloitte.
Professor Mbati’s only role was to support
the appointment of a
forensic auditor. This followed an agreement
[6]
between the respondent and NEHAWU to appoint a forensic auditor.
Prior to this process he did not know of any allegations against
the
applicant. The report recommended disciplinary steps against the
applicant.
[7]
After he read the report in utter shock, he sought a legal opinion on
the matter. He shared the report with three members of Council
who
agreed with the recommendation to take disciplinary steps. Bowman
Gilfillan Attorneys opined that he must deal with the issue
of
discipline. The disciplinary code and procedure of the respondent was
followed. An independent chairperson was appointed. He
did not
testify at the internal disciplinary hearing.
[11]
He strenuously disputed allegations of sexual
harassment. In amplification of the denial, he testified that he
first met the applicant
in 2008, when he met different schools within
the institution. Following that they had a collegial relationship.
She acted as a
link between the respondent and the Tshivhase Royal
Family. The Royal Family served as trustees of the land on which the
respondent
was located. At that time there were efforts to acquire
title deed of the land. The applicant facilitated those efforts.
[12]
In the process of the facilitation he had an
occasion to share a meal with the applicant and at times in the
presence of members
of the Royal Family. At times at a hotel or at
his official residence. The respondent’s Council had delegated
him to deal
with the issue of the title deed.
[13]
In February 2009, there was a function at Kruger
Park. At the function, the purpose was to develop a strategic plan of
the respondent.
The applicant was part of the function. Participants
met in the evenings for various reasons. They met at his allocated
chalet.
One meeting happened at his chalet in order to reflect on the
plans for the following day. The applicant was not party to that
meeting which was facilitated by one Singo-administration officer.
[14]
Upon conclusion of the function, he gave the
applicant and another colleague a lift to Thohoyandou on their
request. He also gave
the applicant a lift to Pretoria when her car
broke down. He spoke to the applicant over the telephone line on work
related issues.
On estimation they would speak once or twice in a
week.
[15]
With
reference to the appointment to the Deanship, he testified that
Manenzhe would testify to the letter.
[8]
However he disputed handing the said letter to the applicant.
[16]
He was cross-examined at length. He was steadfast
in his denial of the alleged sexual harassment. He confirmed that he
did deliver
a response to the allegations laid by the applicant at
the Gender Commission. He objected to the Modise report, which was
set aside
by a court of law. He admitted the itemized calls from the
mobile of the applicant. He however denied any dinners at his home.
He was laboriously taken through the calls and consistently denied
the alleged purposes of the calls.
Mr
Mutshavasindi
[17]
He confirmed
that he gave evidence at the disciplinary hearing. He had read
through the recorded evidence and confirmed it to be
his evidence in
court.
[9]
[18]
In cross-examination he denied that the applicant
saw him for the first time in August 2011 at the disciplinary
hearing. In 2006
he, Mulaudzi and Themedi, did a site visit at the
respondent. At the time of the site visit he had not met the
applicant as yet.
Regarding the purpose of the site visit, Mulaudzi
told him that he wanted business from the respondent. He met the
applicant for
the first time in 2006. That was before the deep
cleaning, which happened during the winter holidays. He met her at
the University
of Pretoria. He could not recall where her office was
located nor could he describe the office. He was following Mulaudzi.
The
meeting lasted for an hour where the company, Clean Shop was
introduced and the report was shared with the applicant. One of the
employees of the respondent referred them to the applicant, as she
was allegedly an influential Council member. He observed an
exchange
of money between the applicant and Mulaudzi, in order to thank her
for her time. She assured Mulaudzi that Clean Shop
will be appointed
and that she will “push” for that to happen.
[19]
Subsequently Mulaudzi told him that they got the
business. When the money was exchanged he counted it and stopped at
R500 or R600.
The exchange happened inside the office. He did not
talk to anyone, as he understood the money to be a gift. He was there
as part
of Clean Shop, to market it and to get the business. He
persisted that the applicant received the money. He disputed the
version
that Mulaudzi was with Moloto and no money was exchanged, as
the purpose of the meeting was to benchmark how clean the University
of Pretoria was as being incorrect. When the notes were given to the
applicant she said “thank you”. He knew Moloto
after the
business was awarded.
Mr
Edgar Djadji
[20]
Deloitte
employs him since 2006. He was involved in the forensic
investigation. He confirmed the contents of the report. He
interviewed
the applicant in the course of the investigations. He
also gave evidence at the disciplinary hearing
[10]
.
He repeated his evidence at the disciplinary hearing.
[11]
[21]
In cross-examination he testified that he
personally interviewed the applicant and has never interviewed
Moloto. He was not aware
that the applicant received the interim or
final report. The only person who informed him about the money
exchange was Mutshavasindi
and he gave him a sworn affidavit to that
effect.
Justice
Manhenzhe
[22]
Since 1995, he is a Director: Human Resources. He
deals with recruitment of staff, which includes appointment of Deans.
In 2008
eight Deans were appointed. Amongst them was the applicant.
He gave detailed evidence relating to the appointment of the eight
Deans. All the appointed Deans were given preliminary letters since
the conditions of service were not completed as yet. He drafted
all
the preliminary letters and forwarded them to the Vice Chancellor for
electronic signature. All the letters bore a wrong date
of 9 August.
The letters were not issued on t 9 August but 9 September. He
produced two letters, one was electronic and the other
was a hard
copy. It cannot be true that on 9 August a letter was issued.
[23]
At the
February 2009 function he came by bus. He asked for a lift from the
Vice Chancellor to Thohoyandou. During the trip he and
the other
occupants were discussing generally and laughing. In
cross-examination, he testified that he was seeing the grievance
[12]
of the applicant for the first time. He could not testify about the
discussions between the applicant and Professor Mbati with
regard to
the lift as he made his own arrangement. He wanted to arrive in
Thohoyandou early. He disputed the allegation that he
communicated
the results of the interviews telephonically.
Angeline
Singo
[24]
Since 1994 the respondent employed her to do
secretarial and administrative work within a department. In 2009, she
attended a function/workshop
in Kruger Park as a secretary and an
administrative person.
[25]
On 24 February 2009, the planning meeting took
place from 21h00. The meeting was delayed since dinner ended late. Mr
Essop facilitated
the meeting. She was there to take minutes and to
provide logistics. The planning meetings were held at Professor
Mbati’s
executive suite. The meeting adjourned at 23h30. The
meeting took longer because of the complex issues that were
discussed.
[26]
She did not know of the allegations made in the
complaint of the applicant. She did not see Professor Mbati making or
receiving
a call. She did not see the applicant at the meeting. The
applicant was never part of the planning committee.
Applicant-Thidziambi
Tshivhase-Phendla.
[27]
Regarding employment history, she testified as
follows: She was a domestic worker at the age of 11. She became a
school principal
in 1992. From 2001-2006, she was a Senior Lecturer
at the University of Pretoria. In 2007 she became a Professor at the
respondent.
From 2005 she was a Council member of the respondent. She
became a Dean in October 2008. She met Professor Mbati in April 2008.
[28]
She described Professor Mbati as a powerful man
feared by many. He is a control freak and he disregards policies. She
never served
in the tender committee and never interacted with
potential tenderers.
[29]
Regarding
the reasons for her dismissal, she prefaced it as a “long
journey and a sad story”. She was taken by surprise
when she
received the charges. When she met with Clean Shop, she was told that
the state of the respondent was dire. Mulaudzi came
to her to see the
cleanliness of the University of Pretoria. He came with one
Moloto.
[13]
[30]
She was
dismissed not because of what she did but for what she did not do;
continue with sexual favours for Professor Mbati. The
harassment
sexually, commenced on 4 May 2008. He proposed sexual relationship
and promised to advance her career. In addition he
promised to
protect her at all times even if she were to refuse his advances.
[14]
She had several dinners at Professor Mbati’s house.
[31]
On 21 May
2008, Professor Mbati invited her to the house to discuss work
related matters. He proposed a sexual relationship, which
she turned
down. He started touching her all over her body including the breast.
He told her that he is aroused and cannot stop.
He took off his boxer
and raped her. She did not report this since Professor Mbati was a
powerful man and in an authoritative position.
[15]
Later on she received an email for nomination as a board member of
SANPAD, she opined that the nomination came as a reward.
[32]
Thereafter she had what she termed a “coerced
relationship” with Professor Mbati. He called her
telephonically almost
every day. She at some stage had to undergo a
surgical operation. Professor Mbati offered to transport her to the
place where the
operation was to take place. On their way back from
the operation place, he offered her Deanship. This offer happened at
the home
of Professor Mbati on 12 August 2008. She received a letter
inviting her to the interview of the Deanship position on 26 August
2008. There was no policy at the respondent to receive preliminary
letters as such she does not believe that any other person received
the letter she received from Professor Mbati.
[33]
Regarding the Deloitte investigation, she
testified that she told the interviewers that Mulaudzi came to her at
the University of
Pretoria in order to see how a clean toilet looks
like. She thought it was a social call. She disputed receiving
R500.00 or any
money. She only saw the Deloitte report two years
after her dismissal.
[34]
After she made a decision to stop the sexual
escapades, she was charged with misconduct and dismissed on 1
November 2011. On 14
September 2011, she lodged a grievance with the
respondent. On 7 June 2012, she lodged a complaint with the
Commission for Gender
Equality.
[35]
Regarding the Kruger Park function, she testified
that on 24 February 2009, Professor Mbati called her at around 21h30.
He was convincing
her to come to his bungalow. Upon failing to
convince her he came up to her room and fetched her back to the
bungalow. At the bungalow,
he raped her without using a condom. She
cried uncontrollably she said. He dropped her off at her room around
23h00 that night.
[36]
At the end
of the function/session, Professor Mbati invited her to travel back
with him. She did not report this second incident
of rape for fear of
stigma and rejection
[16]
.
She persisted with the statements she made when she lodged the
complaints. She met Mutshavandini for the first time in August
2011.
She never attended a meeting wherein Clean Shop was discussed.
[37]
In cross-examination, she testified that she does
not know about the appointment of Deloitte. Djadji indeed interviewed
her and
had asked her about the meeting with Mulaudzi and about Clean
Shop. She admitted that only during her cross-examination at the
disciplinary hearing did she raise for the first time the issue of
sexual favours.
[38]
Regarding the 2006 meeting she testified that
Mulaudzi told her that he was given an opportunity to clean the
University of Venda.
Prior to the meeting she got a call from one
official alerting her of Mulaudzi who wanted to see the cleanliness
of the University
of Pretoria. She testified that she was not
responsible for toilet cleaning. She did not direct Mulaudzi to the
relevant people.
[39]
Regarding the Deanship appointment, she testified
that when she got the letter on 12 August 2008, she was an applicant
and did not
inform the interviewing panel that she already had an
appointment letter. She did not attach any value to the letter as she
saw
it as a strategy to lure her to bed. As at 16 August 2008, she
knew that she was not offered the Deanship as yet.
[40]
She further testified that the only unprotected
sex happened on 24 February 2009. The rape of May 2008 was protected.
She terminated
the relationship when her marriage was at the brink of
collapsing and her husband was becoming suspicious. She however told
her
husband about what happened for two years. She believes that she
was charged because she terminated the relationship.
[41]
As pointed out earlier the evidence of Mulaudzi
and Moloto is as recorded in the transcript of the disciplinary
hearing. It is unnecessary
to recount it herein.
Argument
[42]
Both representatives submitted detailed written
heads of argument to which the Court is grateful. In addition, the
parties augmented
their submissions orally. It is unnecessary for the
purposes of this judgment to repeat all those submissions.
Evaluation
[43]
This is one
of those matters where the true reason for the dismissal is being
disputed. As pointed out elsewhere in this judgment,
the respondent
contends that the applicant was dismissed for misconduct. The
applicant however contends that the true reason for
the dismissal is
that she had actually been subjected to unfair discrimination.
Determining the reason or principal reason of dismissal
is a question
of fact. As such it is a matter of either direct evidence or of
inference from the primary facts established by evidence.
The reason
for dismissal consists of a set of facts, which operated on the mind
of the employer when dismissing the employee
[17]
.
They are within the employer’s knowledge. The employer knows
better than anyone else in the world why he or she dismissed
the
employee.
[44]
When an
employee positively asserts that there was a different and
inadmissible reason for his or her dismissal, he or she must
produce
some evidence supporting the positive case, such as being unfairly
discriminated. An employer who dismisses an employee
has a reason for
doing so. He or she knows what it is and must prove what it is.
[18]
Was
the dismissal of the applicant automatically unfair or not?
[45]
The
applicant suggests that she has been subjected to an unfair
discrimination on the basis of sex. The applicant pegs her case
on
two legs. Firstly, on section 6 of the Employment Equity Act
[19]
(EEA). Secondly on section 187 (1) (f) of the LRA.
[46]
Commencing with section 6 of the EEA, reliance is
placed on section 6 (3), which makes sexual harassment a form of
discrimination.
Section 6 makes reference to employment policy or
practice. In section 1 (m) dismissal is mentioned as an employment
practice or
policy. Therefore, dismissing an employee on the grounds
of sex for instance is prohibited and amounts to an unfair
discrimination.
[47]
Section 10 of the EEA, excludes unfair dismissal
disputes. The question that arises is whether an employee would have
two causes
of action? One arising from the EEA and the other from the
LRA. To my mind once an employee alleges unfair dismissal, his or her
cause of action arises from the LRA. If an employee raises unfair
discrimination as a cause of action the EEA would apply.
[48]
Section 11 of the EEA only applies in instances
where an employee claims unfair discrimination within the
contemplation of the EEA.
Where an employee alleges that the reason
for dismissal is one that is prohibited, section 11 does not apply. I
am unable to agree
with Mr Mokoena for the applicant that in line
with section 11 of the EEA, even if an employee does not produce
credible evidence,
the employer is behooved to prove that the alleged
discrimination is fair. To my mind section 11 still requires an
applicant to
produce some facts to prove that unfair discrimination
has taken place. Not all forms of discriminations are unfair. The
section
refers to whenever “unfair discrimination” is
alleged. Such implies that there must be evidence to support the
allegation
that not only did discrimination in the ordinary sense
take place but that an unfair discrimination has taken place.
[49]
Section 3 (a) of the EEA enjoins that the Act must be interpreted in
compliance with the Constitution. Section 34 of the Constitution
grants everyone the right to have any dispute that can be resolved by
the application of law decided in a fair public hearing before
a
court or, where appropriate, another independent and impartial
tribunal or forum. To my mind resolution by the application of
law
must mean that a party alleging unfair discrimination must produce
evidence credible enough to call upon an employer to rebut.
It will
be inconsistent with the Constitution if an employer is called upon
to justify an unfair discrimination with no credible
facts to work
with. The fact that an unfair discrimination has taken place does not
simply lie on the mouth of an employee. It
requires credible facts
supporting the allegation that unfair discrimination has taken place.
Absent credible facts, the employer
is not behoved to justify that a
discrimination is fair. Put it differently, an employee must first
establish unfair discrimination,
whereafter the employer must justify
that that which the employee termed unfair is actually fair.
[50]
What applies
is the test set out in
Kroukam
v SA Airlink (Pty) Ltd
[20]
,
which
is that
,
the employee must produce credible evidence that shows that an
automatically unfair dismissal has occurred. This I call the first
hurdle. Should an applicant fail to cross this hurdle such an
applicant must to my mind fail. The applicant calls hers a
quid
pro quo
sexual harassment. In
J
v M Ltd
[21]
the
defunct Industrial Court had the following to say:
‘
The
author (Mowatt) examines the development of the law regarding sexual
harassment in the United States of America and in England.
If one
applies the dictionary meanings of the words, sexual harassment would
mean to trouble another continually in the sexual
sphere. In the
employment relationship the word has a slightly different connotation
and is very broadly unwanted sexual attention
in the employment
environment. The author of the article correctly points out that in
its narrowest form sexual harassment occurs
when a woman (or a man)
is expected to engage in sexual activity in order to obtain or keep
employment or obtain promotion or other
favourable working
conditions. In its wider view it is, however, any unwanted sexual
behavior or comment, which has a negative
effect on the recipient.
‘
[51]
It does seem
to me that what the applicant complained about is sexual harassment
in the narrower sense. In support of her argument,
the applicant
relied on three cases.
[22]
In
J
v M Ltd,
the employee who had been harassed was a young female. The senior
executive that harassed her was charged and dismissed for sexual
harassment. In
Kok
v Commission for Conciliation, Mediation and Arbitration and
Others
[23]
,
the employee harassed was a contract cleaner. The branch manager
after harassing her told her that if she revealed what happened
he
would ensure that she is dismissed. The cleaner reported the incident
without delay. In
Gaga
v Anglo Platinum and Others
[24]
,
the Group Human Resources Manager harassed a personal assistant, who
only knew about the grievance procedures at a later stage.
[52]
All of the above cases are distinguishable from
the applicant’s case. The applicant only raised her issue in a
disciplinary
hearing during her cross-examination. One wonders why
the applicant did not mention this to anyone. I do not accept her
version
that she found Professor Mbati to be powerful. Three years
before the ordeal commenced, the applicant was a Councilor at the
respondent.
Surely she knew most if not all the Councilors during the
period she underwent the ordeal. She gets raped; the worst form of
harassment,
yet she chooses to remain mum and continue to attend
dinners, which she knew of its dangers. If this was unwanted, it
could not
have continued for a period of two years.
[53]
The applicant was not a lowly employee; she was a
Dean of a school. She must have been conscious of her rights. It is
highly improbable
that a Professor can allow herself to be subjected
to such a huge violation of her rights and decide to keep quiet. It
is not like
the applicant did not know what to do and where to go. At
one stage she threatened to report Professor Mbati to the Council.
The
reasons why she did not do so are very flimsy. That nobody will
believe her is flimsy and less convincing. The question remains
why
should anybody believe her two years later?
[54]
Her version is truly unbelievable and
contradictory in many respects. Why did she wait to be charged and
only then did she reveal
what she termed a “long and sad
story”? According to her, she terminated the horrendous
relationship on her own accord.
She did that for reasons that suit
her. There is no evidence of resistance or persistence on the part of
Professor Mbati. Such
suggests that she could have stopped all of
this a long time ago. In November she threatened to report Professor
Mbati to the Council
as to why she did not do it remains a mystery to
me.
[55]
The report of Deloitte was produced in November
2010, shortly before she could end the relationship. Therefore, as at
that time
there was evidence upon which the respondent could
terminate employment. Given the power of Professor Mbati, why did he
allow the
sexual relationship to end without offering resistance and
or flexing his muscles? It was not suggested to Professor Mbati that
he also wanted the relationship to end at that time when the
applicant ended it. I find it unbelievable that Professor Mbati will
punish the school of education by refusing to appoint a secretary and
to replace a retired Professor in order to retain a relationship.
A
quid pro quo
simply mean something given in return for something else or accepted
as a reciprocal part of an exchange.
[56]
Regarding the letter of appointment to the
Deanship position, I do not find that as any favour to start with.
The evidence of Manenzhe
is without a shadow of any doubt. It is
clear to me that the date of 9 August was a typographical error. On
the applicant’s
own version, at the time Professor Mbati
allegedly gave her the preliminary letter of appointment she knew
that she was still going
to be interviewed for the position, that the
interviewing panel would make recommendations as to who should be
appointed and that
the appointments would only be made after the
interviews. She knew that the preliminary letter was meaningless. Her
evidence as
to when exactly was she given the letter by Professor
Mbati vacillates to a greater degree and contradictory at different
stages
when narrated.
[57]
The other
worrying factor is the vacillating versions that the applicant gave
to the different bodies
[25]
.
In certain narrations some of the worst forms of harassment are not
mentioned. It does appear to me that after her dismissal the
applicant created events, which may have been consensual and turned
them into coerced events. The applicant is not a person who
would
have suffered in silence. When she testified in court I observed that
she only shed a tear once. When Professor Mbati testified
she was
bravely sitting in court and actively passing notes to her legal
team. Ordinarily a person who has been subjected to such
horrendous
treatment as narrated in the complaints will act different from what
I had observed. This is just an observation in
passing and nothing
much turns on this observation.
[58]
I am not convinced that the applicant was
subjected to a sexual harassment. Her version is replete with
material inconsistencies
and cannot be accepted by this Court as
being true. The narration of the events occurred after the
disciplinary hearing. After
the disciplinary hearing the applicant
had an occasion to narrate what happened in a spurn of two years. It
is difficult to say
that the applicant is making all these up.
However, I have a strong suspicion that the applicant made this up in
order to divert
attention from the misconduct that she was charged
and dismissed for.
[59]
It may well be so that the applicant and Professor
Mbati had a consensual relationship, which like many other
relationships hit
the rough patch. In any event Professor Mbati was
not put through a trial nor was he charged for sexual harassment.
Given the evidence
before me I must accept the version of Professor
Mbati that he did not sexually harassed the applicant.
[60]
Mr. Mokoena
sought to make a case around the timing of the disciplinary enquiry
in an attempt to create a nexus between the alleged
termination of
the sexual relationship and the charges. I am unable to comprehend
this point. In terms of the non-contentious chronology,
[26]
on 5 November 2010, Deloitte submitted its report to the respondent.
It is known that the report recommended disciplinary steps.
On 7
February 2011, Professor Mbati called the applicant and informed her
of the intention to proceed with misconduct charges.
On 15 February
2011, the applicant received the charges.
[61]
It ought to be remembered that the forensic
investigation conducted by Deloitte arises out of an agreement
between the respondent
and NEHAWU. It must follow axiomatically that
up until a report is produced, the respondent could not have taken
disciplinary steps.
The applicant’s evidence as to when she
terminated the sexual relationship is in itself not satisfactory. In
her statement
of case, she alleged that at the end of December 2010,
which will be 31 December 2010, she terminated the relationship
between
Professor Mbati and herself. In her testimony she
ambivalently referred to October or November of 2010. On her version
in the statement
of case, at the time she terminated, the Deloitte
report was out with its recommendations.
[62]
The two
incidents of rape leave much to be desired. According to her the
first incident happened in May 2008 at the study room of
Professor
Mbati. At the very first opportunity at the disciplinary hearing she
does not mention this incident. Instead, she testified
that Professor
Mbati was requesting sexual favours. When she made her first
complain
[27]
to the Commission she leaves the rape out of account. Only in her
second complaint
[28]
to the Commission did she mention the May and February rapes. In her
statement of case before this Court, she alleged that she
was first
raped in February 2009.
[63]
How the February 2009 rape happened on her own
version, could have been avoided. To start with he is on a call
attempting to convince
her to come to the place where she would be
violated. She shares a room with a colleague and does not tell. She
agrees to come
with the person to violate her in a car to his
bungalow. This being the person who violated her in 2008. She gets
violated there,
she cries uncontrollably, yet when she is taken back
to the room she does not tell the roommate. As if that was not
enough. The
very following day she travels with the person who
violated her. All of this does not add up, particularly in the face
of the evidence
of Singo, whom I have no doubt, gave an honest
account of what happened the night in question.
[64]
Therefore, I conclude that the applicant did not
produce credible evidence that shows that an automatically unfair
dismissal has
taken place. Accordingly, the applicant was not
automatically unfairly dismissed. The applicant’s claim for
automatically
unfair dismissal is bound to fail.
Was
the applicant’s dismissal substantively and procedurally
unfair?
[65]
In this part of the judgment I am acting as an
arbitrator. The parties have consented and I believe that it is
expedient to consider
the claim. A dismissal is unfair if the
employer fails to prove that the reason for dismissal is a fair
reason related to amongst
others the conduct of the employee.
[66]
An arbitrator dealing with a dispute of misconduct
must establish whether the employee was indeed guilty of the
misconduct that
led to his or her dismissal. In addition, he or she
must establish whether dismissal was an appropriate sanction for the
misconduct.
The charge that led to the dismissal of the applicant has
been set out in the applicant’s heads of argument. It can be
summarized
to be improper meeting with the potential service
provider, accepting gratification, breach of policies and
non-disclosures.
[67]
It is common cause that in 2006, the applicant met
with one Mulaudzi of Clean Shop. It is also common cause that the
meeting was
about the cleaning contract. What the applicant disputes
is the fact that she received any money to facilitate the appointment
of Clean Shop. According to Mulaudzi after he got the feeling that
his company might be awarded the tender to clean the respondent
he
thought of benchmarking. At the time the cleanest campus was the
University of Pretoria. He prepared himself to go there. A
friend of
his directed him to the applicant.
[68]
He and Moloto met the applicant in her office; he
showed her documents including pictures and a short presentation.
Whereafter she
took them around and later walked them to the parking
and bid them good-bye. This version differs from the evidence of the
applicant
before me. According to her it was more of a social call.
Moloto relegated his duties on the day of the meeting to taking
pictures
and did not participate in the discussions between Mulaudzi
and the applicant. Again the applicant did not testify about any
excursion
of taking pictures of the toilets.
[69]
According to Mulaudzi, the benchmarking meeting
was crucial as he had a feeling that his company was about to be
awarded a tender.
He shared the relevant documents including a short
presentation with the applicant. Clearly this was not a social call.
It was
a meeting with the potential service provider who harboured
feelings that he was about to be awarded a cleaning tender. The
question
is if the applicant could not help one way or another and
does not deal with issues of cleanliness of toilets or procurement,
why
did she agree to meet with the representatives of Clean Shop? Why
did she even engage them? On Mulaudzi’s version she took
them
around. On the balance of probabilities, the applicant must have
received gratification. It is clear on Mulaudzi’s version
that
the visit was aimed at enhancing the chances of Clean Shop to be
appointed as he already had a feeling that his company will
be
awarded the cleaning tender.
[70]
On the probabilities, the applicant knew of this
meeting and intended to use her influence as a Council member to
ensure that Clean
Shop is awarded the cleaning tender. Mr. Mokoena
makes a point that at that time, 2006, the applicant was not an
employee of the
respondent and could not have breached any rule. This
argument is oblivious of the fact that the applicant at that time was
linked
with the respondent as a Councilor. She had the ability as it
were, to influence non-compliance with the procurement procedures.
In
fact, on Mulaudzi’s version, she was approached in order to
enhance the chances of Clean Shop to be awarded the tender.
[71]
I am unable to agree with Mr. Mokoena when he
submits that the only witness in support of charge 1 was
Mutavhasindi. Another leg
of charge 1 was the non-disclosure upon
employment. On the applicant’s own version, this charge is
sustained. She did not
disclose the meeting.
[72]
It is common cause that upon being employed, the
applicant did not disclose the approach by Clean Shop. The question
is did she
have a duty to do so? I am of a view that the applicant as
a senior employee of the respondent had a fiduciary duty to disclose
the meeting. There was nothing untoward; it was a social call on her
evidence; why not disclose it upon employment. The fact that
she
failed to disclose the meeting seeks to support a view that she had
something to hide. It was not just a social call as she
described it.
There was more to it. I have no reason to disbelieve Mutshavandini.
It is indeed so that money exchanged hands. If
Mulaudzi took him with
to the respondent given his expertise in deep cleaning why would he
leave him behind when he is on course
to enhance the feeling to be
awarded a cleaning tender. Moloto on his own version was a
photographer on the day. On the probabilities
Mutshavandini was
present on the day. The fact that he does not recall the layout of
the office does not make his evidence doubtful.
I therefore conclude
that the applicant was indeed guilty of the charges that led to her
dismissal.
[73]
Turning to the question of the appropriateness of
the sanction of dismissal, I conclude that the misconduct with which
the applicant
was found guilty and dismissed, is a serious one. The
principle that the punishment must fit the crime finds application
here.
It is clear that the employment relationship has broken down.
Professor Mbati testified that corruption is a big problem within
the
institution and would not have a person such as the applicant in
employment. Further he testified that it would be impossible
to
continue employment with a person who makes unsupported allegations
of sexual harassment.
[74]
Non-disclosure has an element of dishonesty in it.
Any misconduct that has an element of dishonesty is bound to destroy
continuation
of employment. Further where an employee breaches his or
her fiduciary duty such an employee is not to be trusted by the
employer.
In the circumstances, I am of a view that dismissal was an
appropriate sanction. The sanction is fair and cannot be interfered
with.
[75]
Turning to procedural fairness. The applicant has
not raised any specific ground relating to why the dismissal was
procedurally
unfair. In argument though, Mr. Mokoena raised the issue
of the timing of the disciplinary hearing. In other words, the fact
that
the respondent delayed in taking disciplinary steps, taking of
such steps late is unfair. This ground has not been pleaded at all.
Where an employee complains about procedural unfairness, such an
employee must state the basis of the unfairness to enable the
employer to address it in evidence. To simply raise the basis in
argument is inappropriate. However, it is common cause that prior
to
her dismissal the applicant was subjected to a disciplinary hearing.
At no stage in her evidence did she complain about any
unfairness
arising from the said disciplinary hearing. Accordingly, the
dismissal of the applicant is procedurally fair.
[76]
As to costs, I have no reason to gainsay any
submission that costs should follow the results. Therefore, the
applicant is to pay
the costs.
[77]
In the results, I make the following order:
Order
1 The
dismissal of the applicant is not automatically unfair.
2
The
dismissal of the applicant is both substantively and procedurally
fair.
3
The
applicant is to pay the costs.
_______________________
GN
Moshoana,
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant
: Advocate P L
Mokoena SC
Instructed
by
: Len Dekker and Associates Attorneys of Monument Park, Pretoria
For
the Respondents
: Advocate T J Bruinders SC and Advocate N Lewis
Instructed
by
: Bowman Gilfillan Inc, Sandton
[1]
Act 66 of
1995 as amended.
[2]
Chapter
9 of the Constitution of the Republic of South Africa. 108 of 1996.
[3]
Bundle
C4 pages 752-941 Mulaudzi and pages 944-1010 Moloto.
[4]
Pages 32-62
of Bundle D
[5]
Paragraph 2
page 36 Bundle D.
[6]
On 14 April
2010, the respondent on the one hand and Nehawu on the other signed
an agreement. On allegations of corruption, it
was agreed that an
independent forensic auditor agreeable between the parties be
appointed to probe the allegations of corruption.
Pages 28-31 Bundle
D.
[7]
Prof
Tshivhase-Phendla. The Council of the University should consider
disciplinary action against Prof Tshivhase-Phendla for accepting
to
meet with the representatives of Clean Shop without following proper
procedure as prescribed by the University policies and
procedures
relating to the procurement of goods and services. Furthermore, the
Council should consider disciplinary action for
accepting a
gratification from Mr Mulaudzi of Clean Shop in order to influence
the Council to award a cleaning contract to Clean
Shop. Page 60
Bundle D.
[8]
Page 1351
Bundle D.
[9]
Pages
134-197 Bundle C
[10]
Pages
39-133 Bundle C. he confirmed the evidence to be accurate
[11]
Pages 54-55
Bundle C where the applicant admitted meeting with the
representatives of Clean Shop and her raising the issue with
Council
but not being entertained.
[12]
Pages
91-100 Bundle D.
[13]
She
described Moloto as a short and light in complexion man.
[14]
Paragraph 3
of the 15 June 2012 statement.
[15]
At page 241 paragraph 5 statement of 15 June 2012.
In
court she testified that she did not report the incident because she
was traumatized, very few will report and she was afraid
of
victimization.
[16]
In her
statement to the commission for gender she stated that she was
afraid of her safety and did not summon enough courage since
she was
almost 200km away from the Thohoyandou police station.
[17]
Abernethy
v Mott, Hay and Anderson
[1974] ICR
323.
See also
K
Screene v Seatwave
Ltd Appeal No. UKEAT/0020/11/RN delivered on 26 May 2011.
[18]
See
Kuze
v Rouche Products Ltd
[2008] EWCA Civ 380
(17 April 2008)
[19]
Act 55 of
1998.
[20]
[2005] 26
ILJ 2153 (LAC).
[21]
[1989] 10
ILJ 755 (IC).
[22]
J v M
supra, Kok v CCMA and others
[2015] JOL
32888
(LC)
and
Gaga v Anglo Platinum Ltd
[2012]
3 BLLR 285 (LAC)
[23]
[2015]
JOL 32888 (LC
[24]
[2012]
3 BLLR 285 (LAC)
[25]
The
complaint on 14 September 2011 to the Chairperson of Council makes
no mention of the 2008 and 2009 rapes. The rape was mentioned
in a
statement of 15 June 2012.
[26]
A document
generated by the parties and handed up by agreement.
[27]
11 May 2012
complaint
[28]
15 June
2012 complaint.