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[2018] ZALCJHB 72
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Rustenburg Platinum Mines Limited v UASA obo Pietersen and Others (JR641/2016) [2018] ZALCJHB 72; (2018) 39 ILJ 1330 (LC) (27 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Of
Interest to other Judges
Case
no: JR 641/2016
In
the matter between:
RUSTENBURG
PLATINUM MINES LIMITED
Applicant
and
UASA
OBO STEVE PIETERSEN
First Respondent
COMMISSIONER
JOSIAS SELLO MAAKE
N.O
Second Respondent
COMMISSION
FOR CONCILIATION MEDIATION AND
ARBITRATION
Third Respondent
Heard:
21 February 2018
Delivered:
27 February 2018
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
The ex-employee, Steve Pietersen, was dismissed by Rustenburg
Platinum Mines Limited (The applicant) for misconduct related
to
sexual harassment. In finding that the dismissal was unfair, the
second respondent (Commissioner) concluded that;
‘…
,
I am persuaded that the Applicant had made sexual advances towards
the victim, but that however, he was encouraged to continue
doing so,
by the docile conduct of the victim and consequently that, such
conduct did not amount to unwanted sexual harassment’.
(
Sic
)
[2]
For its troubles, the applicant was ordered to retrospectively
reinstate Pietersen, and to grant him back-payment in the amount
of
R575 770.00. As shall be clearer in this judgment, the clearly
misogynistic, patriarchal and insensitive approach to the
allegations
at hand is ubiquitous throughout the award.
[3]
In the face and growth of
global movements such as ‘
#MeToo’
;
‘
The Silence
Breakers’
;
‘
#NotInMyName’,
and
#BalanceTonPorc
or
"out your pig
",
there is an even greater need for more sensitization to the scourge
of sexual harassment in the workplace. Equally so, there
is an even
greater need for the Commission for Conciliation Mediation and
Arbitration (CCMA) and Bargaining Councils to place more
emphasis on
specialised training to deal with such cases as called upon by the
provisions of Item 11.4 of Amended Code of Good
Practice
[1]
.
The review application in this case and the manner with which the
Commissioner approached the allegations of sexual harassment
is a
reminder of the need for the urgency and seriousness with which such
training is necessary, and for it to be provided on an
on-going
basis.
Background:
[4]
The applicant, as its name suggests carries on business in the
platinum mining industry. Pietersen was employed with effect
from
2004, and as at the date of his dismissal, he held a senior position
of Engineering Specialist. In 2015, the applicant had
cause to
investigate allegations of sexual harassment made against Pietersen
by Ms. Jane Kgole (The Complainant) (She is mentioned
by name as this
is now on record). At the time of the allegations, she was employed
as a Boiler-Maker. Flowing from the investigations
conducted,
Pietersen was suspended and charged with misconduct as follows;
‘
It
is alleged that you between 2007 and 20 August 2014 (specific dates
unknown), at the Mogalekwena South Concentrator, committed
sexual
harassment by;
·
Suggesting that you go
and stay with Ms Jane Kgole to help her with her expenses, and
·
Proposing (on several
occasions) to Ms Kgole that you should sleep together/have sex, while
she found your actions unwelcome and
uninvited’
[5]
A disciplinary enquiry convened resulted in the dismissal of
Pietersen, who aggrieved by the sanction, approached the CCMA through
his union, UASA. The matter ultimately came before the Commissioner,
whose award is the subject of this review application.
The
arbitration proceedings and the award:
[6]
Five witnesses, including the complainant were called upon to testify
on behalf of the applicant, whilst Pietersen was the sole
witness in
his case. Statements made by witnesses as part of the investigations
leading to the disciplinary enquiry were relied
upon by the applicant
and read into the record. I do not deem it necessary to deal with the
evidence of the chairperson of the
enquiry leading to the dismissal,
and that of the investigator.
Kgole’s
testimony:
[7]
She had been employed since 2002. Her ordeal started in 2007 when
Pietersen, who was then an acting Foreman laid charges of
misconduct
against her. Despite Pietersen having called for her dismissal at a
disciplinary enquiry, Kgole was issued with a final
written warning.
[8]
On the same date that she was subjected to discipline, a braai event
was hosted by the applicant’s Safety Department.
At the event,
Pietersen approached her, and asked her how she managed to survive on
her salary. When her response was that managed
as she lived on a
budget, Pietersen had then suggested to her that he could stay with
her and help with payment of her expenses.
The suggestion was that he
could then be able to meet up and sleep with her. She rebuffed these
suggestions.
[9]
Since that incident, Pietersen had constantly asked her to meet and
sleep with him. Pietersen had even suggested that they should
both
attend a work organised course in Randfontein Training Centre so that
he could get an opportunity to sleep with her. Despite
frequent
advances by Pietersen, which made her uncomfortable
(‘not
free’
as she put it) Kgole failed to complain as she
thought it would not assist her. She also took into account that
Pietersen’s
life may be ruined if she reported the harassment.
She had nonetheless informed her husband and some of her
colleagues/friends
about Pietersen’s conduct.
[10]
At some point, Pietersen had again approached her and informed her
that she could help her get promoted if she slept with him.
Her
response was that she was not interested. In August 2014,
Pietersen gave her a test memorandum to assist her in applying
for a
Salvage Yard Officer position which was advertised. He had encouraged
her to apply. Kgole had every intention to apply
for the
vacancy in any event, and the test memorandum contained questions she
would have been asked in the process of selection
for the post.
Despite Pietersen asking her not to show the memorandum to anyone,
she nonetheless shared it with her friends/colleagues.
[11]
A further incident took place in August 2014 when Pietersen
instructed Kgole to perform some tasks in an area that fell
outside
the scope of her responsibilities. When Kgole informed him that he
needed to speak to her Foreman first, Pietersen got
angry, shouted at
her and called the Engineering Manager, who had equally accused her
of refusing to obey instructions. At the
time, she was an acting
Foreman, and was threatened by the Engineering Manager that he would
stop her from acting in the position
if she did not want to work.
[12]
Having completed the task over the ‘fatigue’/night shift,
the next morning she sent Pietersen two WhatsApp messages
informing
him that she intended to report the harassment to the Production
Manager (Ashina Buddu) if he did not stop. Before she
could report
the matter, she was placed on suspension because of the messages sent
to Pietersen.
[13]
Before a disciplinary enquiry could be convened and whilst on
suspension, her husband, who is also employed by the applicant
laid a
complaint of sexual harassment on her behalf. It was thereafter that
she was asked to come in to give a statement by the
investigator. She
denied that she had reported the harassment in retaliation to the
charges of misconduct laid against her.
[14]
Despite the constant advances by Pietersen, she had also not
immediately reported the matter as she thought of his wife who
was
also employed by the applicant, who she considered to be a ‘good
person’. She had however informed her colleagues
about the
matter as it was ‘
heavy’ and a burden
on her, to
seek advice. One of her colleague gave her a copy of the applicant’s
Sexual Harassment Policy and told her to
study it and report the
matter.
[15]
Under cross-examination, Kgole testified that Pietersen used to ask
her to meet and sleep with him on no less than twice a
month, and she
had during the seven years’ period, informed her colleagues
about it and tolerated it for too long. She had
constantly told
Pietersen to stop, hoping that he would do so. She confirmed that no
other person was present when the advances
were made, but that she
felt that she had to report the matter at the time she did because
she could no longer bear it as it was
turning into victimisation.
The
evidence of Hendrica Matsuang:
[16]
She is employed by the applicant as a ‘fitter repairman’/fitter
assistant. Kgole is her friend and colleague. She
confirmed that
Kgole had since 2013, complained that Pietersen had proposed to her.
When she asked her why she had not reported
the matter, her response
was that Pietersen was a manager and was afraid that she might not be
believed, or she could be victimised.
Kgole further said that she
felt sorry for Pietersen and his family. Matsaung also confirmed that
Kgole reported to her that Pietersen
had suggested that they should
attend a course together so that he could sleep with her.
The
evidence of Peter Maaka:
[17]
Maaka is the applicant’s Full-Time Health and Safety
representative and is employed
in the Engineering Department with
Kgole. He confirmed that Kgole confided in him on no less than three
times that Pietersen had
proposed to her and asked to her to be his
girlfriend and she had turned down the proposal.
[18]
The incidents as far as he knew dated back to 2008. She was upset and
had spent about four hours in his office crying. This
incident took
place after Kgole was issued with a final written warning in a matter
he had represented her. Maaka’s advice
to Kgole was to confront
Pietersen instead of reporting the matter to HR. When the matter
persisted, he had advised her to report
the matter to HR and her
response was she was concerned about Pietersen’s wife who was a
kind person, who had comforted her
during her time of family
bereavement. She did not want to hurt Pietersen’s wife.
[19]
In August 2014, Kgole approached him and informed him that
Pietersen was again at it and wanted to charge her. He confirmed
that
Kgole had showed her a test memorandum given to her by Pietersen,
which was to assist her in applying for a vacancy. Kgole
informed him
that Pietersen had given her the memorandum as proof of how serious
he was about having sex with her. Maaka further
confirmed that at
some point he had given Kgole a copy of the company’s Sexual
Harassment Policy.
Pietersen’s
evidence:
[20]
He confirmed that Kgole reported to him in 2007 when he was Foreman
in the boilermaker section. He confirmed an incident when
Kgole was
charged in 2007 and issued with a final written warning. He denied
having proposed to Kgole at the braai event after
she was issued with
a warning, or ever having said anything to her that could be
construed as sexual advances. He nonetheless testified
that even if
Kgole was to be believed that he made the statements attributed to
him at the braai event, he did not see any sexual
harassment in him
making an offer to her to pay for her expenses.
[21]
Pietersen confirmed that he had received WhatsApp messages from
Kgole, which were threatening to him and his family, and had
reported
the matter to his manager and HR. When he was informed of the sexual
allegations against him, he had anticipated it, together
with
allegations of him either being dishonest or racist, in view of the
events that led to Kgole having been suspended for misconduct
and for
her previous incidents of discipline.
[22]
Pietersen further denied having given Kgole the test memorandum in
expectation of sexual favours. He denied ever having made
any sexual
advances to Kgole at any point since 2007. He contended that she held
a grudge against him since she was disciplined
in 2007, and for her
suspension prior to making the allegations of sexual harassment. He
accused her of
fabrication
, and of ‘
planning and
plotting the whole thing’
.
The
grounds for review and evaluation:
[23]
The applicant contends that the award falls to be reviewed and set
aside on the grounds that;
a)
The Commissioner committed misconduct by committing
a material error
of law; and/or
b)
Committed gross irregularities in relation
to his duties as an
arbitrator; and/or
c)
Came to a decision that a reasonable Commissioner,
could not reach in
the light of the evidence that was before him
[24]
Prior to dealing with the above grounds of review, it would be useful
to deal with basic principles related to a determination
of sexual
harassment disputes. In terms of section 203(3) of the Labour
Relations Act (LRA), any person interpreting or applying
that Act
must take into account
any relevant code of good practice.
[25]
The starting point therefore in
a determination of sexual harassment disputes is the 1998 Code of
Good Practice on the Handling
of Sexual Harassment Cases in the
Workplace
[2]
,
as well as the 2005 Amended Code
[3]
.
Savage AJA in
Campbell
Scientific Africa (Pty) Ltd v Simmers and Others
[4]
confirmed that despite the 2005 Code being termed the “Amended”
Code, it did not replace or supersede the 1998 Code.
The result is
that in terms of section 203(3) of the LRA, both Codes are “relevant
codes of good practice” to guide
commissioners in the
interpretation and application of the LRA.
[26]
Section 138(6) of the LRA equally places an obligation on
Commissioners to take into account any code of good practice that
has
been issued by NEDLAC or the guidelines published by the CCMA that is
relevant to a matter being considered in the arbitration
proceedings.
[27]
In terms of Item 3 of the 1998 Code, ‘Sexual Harassment’
is defined as;
(1)
‘…
unwanted
conduct of a sexual nature. The unwanted nature of sexual harassment
distinguishes it from behaviour that is welcome and
mutual.
(2)
Sexual attention becomes
sexual harassment if:
a.
The behaviour is
persisted in, although a single incident of harassment can constitute
sexual harassment; and/or
b.
The recipient has made it
clear that the behaviour is considered offensive; and/or
c.
The perpetrator should
have known that the behaviour is regarded as unacceptable.’
[28]
Under Item 4 of the same Code, Forms of sexual harassment include;
(1)
Any unwelcome physical,
verbal or non-verbal conduct, but is not limited to the examples
listed as follows:
a.
Physical conduct of a
sexual nature includes all unwanted physical contact, ranging from
touching to sexual assault and rape, and
includes a strip search by
or in the presence of the opposite sex.
b.
Verbal forms of sexual
harassment include unwelcome innuendoes, suggestions and hints,
sexual advances, comments with sexual overtones,
sex-related jokes or
insults or unwelcome graphic comments about a person’s body
made in their presence or directed toward
them, unwelcome and
inappropriate enquiries about a person’s sex life, and
unwelcome whistling directed at a person or group
of persons.
c.
Non-verbal forms of
sexual harassment include unwelcome gestures, indecent exposure, and
the unwelcome display of sexually explicit
pictures and objects.
d.
Quid pro quo harassment
occurs where an owner, employer, supervisor, member of management or
co-employee, undertakes or attempts
to influence the process of
employment, promotion, training, discipline, dismissal, salary
increment or other benefit of an employee
or job applicant, in
exchange for sexual favours.
(2)
Sexual favouritism exists
where a person who is in a position of authority rewards only those
who respond to his/her sexual advances,
whilst other deserving
employees who do not submit themselves to any sexual advances are
denied promotions, merit rating or salary
increases.
[29]
Item 3 of the 2005 Code deems
sexual harassment as a form of unfair discrimination within the ambit
of
Section 6
of the
Employment Equity Act 55 of 1998
. Item 4 sets out
the test for sexual harassment
[5]
,
whilst Item 5 outlines the factors to establish sexual harassment
[6]
.
[30]
In
Campbell
, Savage AJA further held that;
“
At
its core, sexual harassment is concerned with the exercise of power
and in the main reflects the power relations that exist both
in
society generally and specifically within a particular workplace.
While economic power may underlie many instances of harassment,
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. This type of power abuse often is
exerted by a (typically male) co-worker and not necessarily
a
supervisor.”
And,
“
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”
(Authorities
omitted)
[7]
[31]
The above sentiments flow from
those similarly echoed in
Motsamai
v Everite Building Products (Pty) Ltd
[8]
, where it was held that;
Sexual harassment is the most heinous
misconduct that plagues a workplace; not only is it demeaning to the
victim, it undermines
the dignity, integrity and self-worth of the
employee harassed. The harshness of the wrong is compounded when the
victim suffers
it at the hands of his/her supervisor. 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…”
[32]
The significance of the 1998
and 2005 Codes is that they essentially spoon-feed Commissioners in
terms of what they must look for
in determining such disputes, and it
is in this regard that the Commissioner in this case was found
lacking. His starting point
was to refer to John Grogan’s
[9]
exposition of the ‘Code of Good Practice on Sexual Harassment’
and ‘case law and the elements of the offence’.
It is
apparent that the Commissioner only looked at the 1998 Code in this
regard. The Commissioner then found that the implications
of the
elements identified was that should any of them be ‘lacking’,
then no sexual harassment would have occurred,
with special emphasis
being placed on whether the accused employee must have been aware or
should have reasonably been aware that
his or her conduct was
unwanted by and deemed offensive to the complainant.
[33]
As shall be more evident in the reasoning of the Commissioner, he had
placed too much emphasis on the provisions of Item 2(a),
(b) and (c)
of the 1998 Code to the exclusion of the test set out in Item 4 of
the 2005 Code. This was the first material error
of law committed by
the Commissioner. There is nothing in both the Codes that states that
all elements of sexual harassment
must
be established. Sexual
harassment, as per the test formulated in the 2005 Code requires
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 a variety of factors.
On the plain reading of Item 4 of
the 2005 Code, there is no requirement that the accused employee must
have been aware or should
have reasonably been aware that his or her
conduct was unwanted, or that the recipient must have made it clear
that the behaviour
is considered offensive. These requirements in the
1998 Code had an element of subjectivity, which placed an onerous
burden on
the complainant to prove the harasser’s state of
mind, and to also prove that he or she had at all material times in
unequivocal
terms, made the harasser aware that the conduct was not
welcomed.
[34]
It could not have been the intention of the drafters of the Codes, as
further evident from Items 4 and 5 of the amended 2005
Code, to
require any one singular factor to take precedence over others. To do
so would have the result of the test being pigeon-holed,
which would
have led to absurdity. The factors outlined in Item 4 and 5 of the
2005 Code appear to be less onerous and more objective,
and sadly,
the Commissioner failed to take them into account as shall be made
clearer below.
[35]
The Commissioner acknowledged
that there were disputes of fact and found that neither party’s
version had been corroborated
by direct evidence. Again, the
Commissioner floundered and required a high standard of proof from
the applicant and the complainant,
when he should have been guided by
the principles enunciated in
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell & Kie SA
and Others
[10]
in resolving those disputed
facts.
[36]
In any event, the standard of proof in labour disputes is that of a
balance of probabilities, and to require direct evidence
in such
cases as the Commissioner sought to do, is to set the standard of
proof too high and insurmountable, which would constitute
a
reviewable irregularity on the part of the Commissioner.
[37]
The nature of the offence of sexual harassment is such that any
direct evidence will be hard to come by, especially in this
case
where each allegation of the complainant is denied. Furthermore, the
provisions of Item 5.3.1.2 of the 2005 Code makes it
clear that
verbal conduct includes unwelcome innuendos, suggestions, hints,
sexual advances, or comments with sexual overtones.
This requires an
objective assessment of the conduct complained of. A suggestion by
Pietersen that he would pay for the complainant’s
expenses so
that they could sleep together is on its own, sufficient to
constitute more than a hint or innuendo. Other acts and
allegations
of unwanted advances made by Pietersen which he had merely met with a
bare denial are sufficient for a finding of sexual
harassment to have
been made.
[38]
The Commissioner nonetheless had regard to Maaka’s and
Matsaung’s evidence and concluded that Pietersen ‘
had
made the alleged sexual advances towards the purported victim’
(Sic).
He nevertheless inexplicably stated that these finding did
not put an end to the matter and proceeded to ask whether the conduct
in question constituted sexual harassment.
[39]
In answering the question, the Commissioner traced the matter to 2007
with the braai incident and concluded that;
‘
The
initial sexual advance was made way back in 2007, a period of about
eight years now, at a safety braai. It does not occur to
me that the
words uttered by the Applicant towards the victim there at the safety
braai, had, by any stretch of the imagination,
amounted to sexual
harassment. At best, they appear to depict a love proposal. Surely
there can never be anything untoward for
an employee to be attracted
to a co-employee, irrespective of the juniority or seniority status
of the parties and for such an
employee to accordingly propose love
towards such co-employee. The problem only arises when the
unwelcomeness of such a love proposal
is communicated to the proposer
and the proposer nevertheless, persists in his/her conduct.
Accordingly, I find nothing untoward
with the Applicant’s
amorous conduct towards the victim on the safety braai day, in
particular because even then, the victim
did not clearly and
unambiguously, express to him/her unhappiness at his proposal, a fact
which is eminently relevant and material
to the Applicant’s
future conduct towards the victim, as unfolds immediately have-under’
(Sic)
[40]
One can only express shock and horror at the above findings in the
light of the evidence that was before the Commissioner,
and his
failure to appreciate the provisions of Items 4 and 5 of the 2005
Code. A workplace is exactly that and should not ordinarily
be
confused with a ‘
find me love’
sanctuary or lonely
hearts’ club for love-sick employees. I agree with the
Commissioner’s observations that there is
nothing wrong with
employees being attracted to each other at the workplace. After-all,
we are all part of
Homo sapiens
with feelings and emotions,
and it is possible for the office affair to turn into a ‘happily
thereafter union’.
[41]
There is a school of thought that holds the view that human beings
can be slaves to their urges. That being so, it does not
imply that
employees are incapable of controlling those urges in the workplace.
A workplace should be free from ‘amorous’
and
testosterone filled employees looking for love and gratification at
every available opportunity. There is everything wrong
when employees
express their affection in the workplace to each other, to the point
where the conduct in question is frowned upon,
as it crosses that
fine line between innocent attraction and sexual harassment. Where
such conduct creates
a sexually hostile and
intimidating work environment that undermines the dignity, privacy
and integrity of the harassed, this is
where Item
4.4 of the
2005 Code becomes relevant, insofar as Commissioners are obliged to
assess and determine the impact of the sexual conduct
of the
employee.
[42]
There is therefore everything wrong where the affectionate advances
were rebuffed at every turn and opportunity, to the point
where the
complainant felt helpless, ‘
not free’
and
burdened
as in this case. It is not even necessary to dwell into the effect of
such conduct on the working relationship between the harasser
and
complainant, or the manager/subordinate relationship. For the
Commissioner therefore to not to have found anything wrong in
the
inappropriate advances made by Pietersen at the braai event or even
thereafter, and to merely treat them as actions of someone
love-struck, or ‘proposing love’ is worrying in the
extreme.
[43]
To conclude on this point, even if one were to be sympathetic and
accommodated employees’ urges in the workplace, there
is
nothing that prevents them from expressing their love and affection
outside of the work environment. Even then, what two consenting
adults who are co-employees do in their private lives remains
private. However, any concomitant conduct in that regard should not
fall within the four corners of the elements of sexual harassment, or
negatively impact the working relationship in the sense of
creating a
hostile unpleasant environment.
[44]
The Commissioner proceeded to take issue with the fact that the
complainant did not clearly and unambiguously say no to Pietersen.
Had the Commissioner bothered to have regard to the provisions of
5.4
(Impact of the conduct)
of the 2005
Code, he would have appreciated
that the conduct complained of
constituted an impairment of the complainant’s dignity, taking
into account her circumstances
and her junior position
vis-à-vis
Pietersen, and that in the absence of reciprocation, there was no
requirement for the complainant to say no in unambiguous terms
as
suggested. Despite what appears to be the Commissioner’s strict
interpretation of Item 2 of the 1998 Code that the recipient
must
have made it clear that the behaviour is considered offensive, and/or
that the perpetrator should have known that the behaviour
was
regarded as unacceptable, silence in the face of harassment as shall
further be illustrated in this judgment, can never be
a hint for
acquiescence.
[45]
Had the Commissioner further looked at the provisions of Item 5.2.1
of the 2005 Code, he would have also acknowledged that
there are
different ways with which a complainant may indicate that sexual
conduct is unwelcome, including non-verbal conduct such
as walking
away or not responding to the perpetrator. In this case, the
Commissioner failed to appreciate that in the seven years
that the
sexual advances had persisted, not once had the complainant
reciprocated Pietersen’s advances, and how that reaction
or
non-reaction could have been interpreted as being docile and inviting
is beyond comprehension.
[46]
Nothing can be clearer and unambiguous than the complainant’s
responses to the advances in this case. She had said no
to Pietersen
on countless occasions the advances were made, and I am uncertain
whether it was expected of her, other than to report
the matter, to
stand and shout from the top of the applicant’s mine dump to
express her displeasure at Pietersen’s
conduct.
[47]
The Commissioner proceeded to deal with Kgole’s testimony to
the effect that Pietersen used to suggest that she sleeps
with him
and when he turned him down, he had used to charge her (with
misconduct). He nonetheless poked holes in that testimony
due to her
failure to furnish particulars of the occasions when those
suggestions had occurred, and the circumstances under which
they had
occurred. He essentially found that her testimony was vague. The
Commissioner added the following to his conclusions in
this regard;
‘
This
could perhaps be ascribed to forgetfulness on her part, which is
blamable upon her having waited for a period of about eight
years to
lay a sexual harassment complaint against him, on the spurious
grounds that she did not want to jeopardise his employment
and/or on
the basis of the decency of his wife who, according to her, was a
good person. I fail to understand why a sex pest should
be protected
against loss of employment and/or on the basis of the decency of his
spouse. It would have been a different kettle
of fish if the failure
to lay a sexual harassment complaint against the Applicant, was
inspired by a fear of possible occupational
victimization or
detriment, a fact she never raised at these proceedings…..It
is quite apparent that had it not been for
the said suspension, she
would have to date, not laid a sexual harassment complaint against
him and accordingly, the Applicant
is correct to ascribe bad motive
to her in this regard, which, according to him, was actuated by the
disciplinary actions instituted
against her’
(Sic)
[48]
The above findings need to be assessed within the context of the
principal finding made
already that there were indeed advances of a
sexual nature made by Pietersen. In finding that sexual harassment
had not however
been established, the Commissioner concluded by
stating that, ‘
in order to maintain credibility’, the
purported victim ought to act within a reasonable time period’
,
and that in this case Kgole had let the problem to persist without
expressing her unhappiness ‘
at the alleged conduct and to
accordingly keep alive his hope that she would eventually agree to
his sexual advances’
(Sic)
[49]
The lessons coming out of the global anti-sexual harassment movements
mentioned elsewhere in this judgment are that the so-called
‘victims’
of sexual harassment react to their own ordeals and circumstances
differently, and in most instances, long
after the fact. Astute
lawyers will always attack the credibility of complainants because of
the time lapses between the incidents
and when they get reported, and
the inability to proffer specifics or corroborating evidence. There
is of course always a danger
in accepting at face value that an
incident took place simply because it was reported immediately
thereafter. The consequences
could be dire for both the accuser and
accused if the allegations are found to be without merit. The stigma
of being a sex pest
remains forever even if in the end, the
allegations are found to be unsubstantiated. There is however an even
greater danger when
it is not accepted that the incident took place
because the complainant took long to report it, or that he or she
cannot recall
details with clarity. Without vindication because of
such technicalities, the trauma persists indefinitely for the
complainant.
[50]
Common sense however, and a bit of appreciation of the human mind
dictates that one must look deeper and objectively into the
reasons
incidents of sexual harassment are not immediately reported. This
examination again has to do with how human beings react
differently
to the same or similar set of circumstances. Depending on the nature
and character of the individual complainant, in
some instances, and
immediately when an incident takes place, the harasser may be told in
unequivocal and impolite terms to cease
and desist the conduct, and
to find the nearest cold shower. At best, the incident may even be
reported immediately. Of course,
this would be the ideal scenario,
and the workplace would be free from sex pests and harassers, if
every incident was to be dealt
with in that manner.
[51]
In most cases however, it might take ages for the complaint to
finally muster the strength and courage to report the incidents.
This
could be for a variety of reasons including but not limited to;
a)
Being ‘frozen’, and disbelieving what they are
experiencing, and not having the human tools to respond immediately.
This state of paralysis may be accompanied by guilt, confusion,
self-anger, self-blame, shame, victimhood, unusual calm, being
distraught and incapable of expression, withdrawal, helplessness,
or
outright terror. (The ‘paralysis mode’ syndrome)
b)
Many fear a backlash if they complain, especially where the
incident
took place in a power/subordinate relationship. There is a fear of
being hounded out of a job or being victimised at various
levels.
Thus, a complaint of sexual harassment against that ‘bright
blue-eyed boy/girl’ in the office; or a senior
employee/executive, may be a career ending or career limiting move,
to be regretted dearly.
c)
There is a fear of causing a fuss or disharmony in the workplace,
with allegations that may not be taken seriously or believed,
especially in the absence of corroborating evidence. (Most incidents
of sexual harassment take place where there are no witnesses)
d)
Fear of consequential and negative labelling once an incident
is
reported. Aligned to the fear that the complainant might be perceived
to have ‘asked for it’, (either because there
is a view
that she was flirtatious etc.), the possibility of being labelled by
colleagues as a person with loose or low morals
and being named and
shamed is not remote.
e)
Feeling pity for the harasser for whatever reason, irrespective
of
the reprehensible conduct;
f)
Enduring the ordeal with the hope that it will go away,
or that it
was a once off incident never to be repeated (The ‘quit or
endure’ syndrome), coupled with the carrying
of a sense of
guilt for not reporting the matter.
g)
The fear of publicity, and/or having to substantiate the allegations
in public proceedings under relentless and unsympathetic
cross-examination.
[52]
The above list of responses is not exhaustive, and will in most
instances, obviously require of the complainant/experts to
attest to
them. What is of significant though is that the inability to recall
events with specifics, including the timelines within
which events or
incidents took place, is not an unusual phenomenon in such cases.
Courts and Commissioner ought therefore to bear
in mind that the fact
that a complainant cannot recall specifics does not imply that the
incidents did not take place. There should
therefore be an ability to
distinguish between an ‘attention-seeker’, a
‘trouble-maker’, ‘a scorned
employee retaliating in
the aftermath of a failed office affair’; and a genuine
complaint of sexual harassment.
[53]
In arriving at the conclusion that indeed there were advances of a
sexual nature made towards the complainant, the Commissioner
nonetheless disabused his mind to the above considerations, and
effectively failed to appreciate that the conduct complained of
was
also unwelcome. In the face of evidence by the complainant, as
corroborated by two other witnesses that the incidents were
reported,
it is inexplicable that the Commissioner would find that Pietersen
was merely amorous and love-struck.
[54]
Of course, the complainant’s testimony had to have holes in it
in respect of specifics and timelines of the incidents
as they took
place over a period. She had failed to report the incidents for
reasons that in my view should have persuaded the
Commissioner in the
face of a bare denial by Pietersen. Her reasons were that she had
hoped that the conduct would stop as she
was not reciprocating it;
she did not think it would help in reporting it; since Pietersen was
a manager, she thought she might
be victimised; she had consistently
told Pietersen to stop the conduct; and that she felt sorry for
Pietersen and his wife whom
she considered a good person. Other than
these reasons, she had also reported the incidents to her friends and
colleagues, and
to her husband who was also employed by the applicant
[55]
The Commissioner does not state the reason he had not found the
sexual advances unwelcome, or the reason he had placed little
or no
weight to the explanation proffered by the complainant as to why she
had taken long to report the matter. He merely found
comfort in
casting aspersions on her credibility without just cause. He
criticised the complainant for feeling pity for Pietersen
and his
wife and failed to appreciate that as a consequence of rebuffing the
advances, she had been subjected to victimization
and occupational
detriment, including what she considered to be unfair disciplinary
processes. He failed to appreciate that by
becoming a target or
‘victim’ of sexual harassment, it did not necessarily
make the complainant less of a human being,
incapable of feeling pity
for her assailant/harasser or his spouse.
[56]
The Commissioner essentially viewed the complainant as an
aggrieved/begrudged employee as a result of the disciplinary
processes
against her, when in fact there was a basis for a
conclusion to be made that Pietersen’s conduct amounted to
sustained sexual
harassment, which deserved serious censure by the
applicant. All that Pietersen had offered was conspiracy theories and
denials.
How the Commissioner was persuaded by mere denials in the
face of the evidence by the complainant and other witnesses is beyond
comprehension.
[57]
The Commissioner concluded that the failure to report the incident
timeously was an indication that the complainant had encouraged
and
‘
inspired’
Pietersen to conclude that she was not
averse to his conduct, and to accordingly keep alive his hopes that
she would eventually
agree to sleep. This conclusion is patriarchal
and misogynistic in the extreme. It denotes a right or entitlement.
The message
is that that harassers can persist with the unbecoming
conduct, with the hope that they will get lucky at some point, as
long as
the complainant does not report the matter. It is further
indicative of the Commissioner’s failure to appreciate the
importance
of the two Codes referred to.
[58]
Silence, no matter how
prolonged it may be, as the Commissioner ought to have known, does
not amount to consent. A ‘docile’
response to sustained
sexual harassment cannot be equated with an invitation
[11]
.
There is nothing that was presented before the Commissioner, that
indicated that the complainant ‘inspired’ Pietersen
to
continue with his deplorable conduct, and clearly the Commissioner
misconceived the nature of the enquiry or went about the
enquiry in a
wrong manner.
[59]
The Commissioner capped his
conclusions by stating that no evidence had been led to demonstrate
that the employment relationship
had irretrievably broken down. The
legal position as enunciated in
Edcon
Limited v Pillemer NO and Others
[12]
regarding the need for evidence demonstrating a breakdown in a trust
relationship has since been clarified in
Impala
Platinum Limited v Zirk Bernardus Jansen & Others
[13]
.
The Labour Appeal Court held that it is not correct that an employer
must always lead evidence to establish a breakdown in the
trust
relationship for a sanction of dismissal to be appropriate, as that
rule was not immutable
[14]
.
It was held that it must be implied from the gravity of the
misconduct that the trust relationship had broken down and that a
dismissal is the appropriate sanction
[15]
. Furthermore, it has been held that the breakdown of the trust
relationship is not solely dependent on what the employer says,
and
that irrespective of the employer’s testimony in this regard,
the Commissioner is still enjoined to enquire whether that
is indeed
so
[16]
.
[60]
In this case, there was evidence of incidents of persistent unwelcome
conduct on the part of Pietersen, five of which should
have been
apparent to the Commissioner and dispositive of the matter. These
were;
a)
The incident at the safety braai event;
b)
The persistent requests to meet and engage in sexual activity,
and
the complainant’s consistent lack of reciprocation
c)
The suggestion by Pietersen that he and the complainant should
attend
a training course in Randfontein so that that they can sleep together
d)
The promise of a promotion if the complainant agreed to sleep
with
Pietersen (quid pro quo harassment)
e)
Pietersen gave the complainant a test memorandum to assist her
with
applying for a vacancy, with the expectation that she would agree to
sleep with him
[61]
These incidents, in the face of
a bare denial, were serious enough to demonstrate that sexual
harassment had taken place, which
had the consequences of
irretrievably breaking down a trust and employment relationship
between Pietersen and the applicant. No
amount of evidence on the
part of the applicant would have made the seriousness of the
misconduct in question any less. Pietersen
had failed to own up to
his actions and had instead conjured up conspiracy theories. Not once
had he shown any contrition, and
in the light of the seriousness of
the misconduct, there was no basis in law or fact, for the
Commissioner to interfere with the
sanction of dismissal
[17]
.
[62]
To conclude then, having made a finding that Pietersen had made
sexual advances to the complainant, the Commissioner nonetheless
committed material error of law by failing to take full account and
applying the provisions of the 2005 Code; committed gross
irregularities in the conduct of proceedings as he clearly
misconstrued the nature of the enquiry in such cases, and failed to
take into account or ignored material evidence. Ultimately, the
decision arrived at by the Commissioner in the light of the material
before him, is one which a reasonable decision maker would not have
come to.
[63]
It was further pointed out on behalf of the applicant that all the
material necessary for a substitution of the award rather
than
remitting the matter back to the CCMA are before the Court. I fully
agree with this submission.
[64]
What remains is the issue of costs. It is trite that this court is
required to take into account the considerations of law
and fairness
in making an order of costs. In this case, it was or should have been
apparent to UASA that the Commissioner’s
award was
indefensible. It had nonetheless persisted in opposing this
application in circumstances where it should have reflected
on the
merits of the matter and made an informed decision. It failed in that
regard, and I can see no reason why it should not
be burdened with
the costs of this application. It is accepted that the court should
be slow in awarding costs in circumstances
where there is an on-going
relationship between the Union and the employer. This is only but one
of the factors to be considered
in the overall determination of
whether law and fairness requires that a cost order should be made
and is indeed not a bar to such
an order.
Order:
[65]
In the premises, the following order is made;
1.
The arbitration award issued by the Second Respondent under case
number LP3530/15 dated 14
March 2016 is reviewed, set aside and
substituted with an order that;
‘
The
dismissal of Steve Pietersen by Rustenburg Platinum Mines Limited on
20 April 2015 was substantively fair’.
2.
UASA is ordered to pay the costs of this application.
__________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES
:
For
the Applicant:
Mr. I Gwaunza of Edward Nathan Sonnenberg INC
For
the First Respondent:
Adv. HG Strydom (Union Official)
[1]
On the Handling of Sexual Harassment Cases In The Workplace
(Published under GN 1357 in GG27865 of 4 August 2005
[2]
Notice 1367 Of 1998 Issued by NEDLAC under section 203(1) of the
Labour
Relations
Act 66 of 1995 (LRA)
[3]
See
SA
Metal Group (Pty) Ltd v CCMA
(2014) 35 ILJ (LC) at para 11, where Rabkin-Naicker J held that;
“
It is peremptory then for a
commissioner to apply the 2005 Code when they preside over
arbitrations dealing with dismissals for
alleged misconduct, in
which alleged acts of sexual harassment constitute the said
misconduct…”
[4]
(CA 14/2014) [2015] ZALCCT 62 (23 October 2015)
[5]
‘
Test for sexual
harassment
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 of the employee’
[6]
Factors to establish sexual
harassment
5.1 Harassment on
a prohibited ground
5.1.1
The grounds of discrimination to establish sexual harassment are
sex, gender and sexual orientation.
5.1.2
Same-sex harassment can amount to discrimination on the basis
of
sex, gender and sexual
orientation.
5.2 Unwelcome conduct
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.
5.3 Nature and extent of the conduct
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 Victimisation occurs where an
employee is victimised 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 favouritism, which
occurs where a person in authority in the workplace rewards only
those who respond
to his or her sexual advances.
5.3.3 A single incident of unwelcome
sexual conduct may constitute sexual harassment.
[7]
At
paragraphs [20] – [21]
[8]
[2011] 2 BLLR 144
(LAC) at para [20]
[9]
Dismissal:
Discrimination and Unfair Labour Practices
[10]
2003 (1) SA 11
(SCA) para 14I–15E, where it was held that;
'To come to a conclusion on the
disputed issues a court makes findings on (a) the credibility of the
various factual witnesses;
(b) their reliability; and (c) the
probabilities. As to (a), 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, or with established fact or with his own extracurial
statements or actions, (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. As to (b), a witness' reliability will
depend, apart from the 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. As to (c), this necessitates an
analysis and evaluation of the probabilities and improbabilities
of
each party's version on each of the disputed issues. In the light of
its assessment of (a), (b) and (c) the court will then,
as a final
step, determine whether the party burdened with the onus of proof
has succeeded in discharging it. The hard case,
which will doubtless
be the rare one, occurs when the court's credibility findings compel
it in one direction and evaluation
of the general probabilities in
another. The more convincing the former, the less convincing will be
latter. But when all factors
are equipoised probabilities prevail.’
[11]
See
Gaga
v Anglo Platinum Ltd and others
[2012]
3 BLLR 285
(LAC) (Referred to in SA Metal Group (Pty) Ltd), where
Murphy AJA
at para 41 held as follows:
“
The rule against sexual
harassment targets, amongst other things, reprehensible expressions
of misplaced authority by superiors
towards their subordinates. The
fact that the subordinate may present as ambivalent, or even
momentarily be flattered by the
attention, is no excuse;
particularly where at some stage in an ongoing situation she signals
her discomfort. If not the initial
behaviour, then, at the very
least, the persistence therein is unacceptable. By applying too
narrow a definition of sexual harassment,
the commissioner
overlooked these considerations and made a material error that
denied the first respondent a full and fair determination
of the
issues; thereby committing an irregularity or misconduct”
[12]
[2010] 1 BLLR 1 (SCA).
[13]
(JA100/14)
[14]
At para 10
[15]
at para 15
[16]
Barloworld Logistics v Ledwaba NO (JA119/14)
[2016] ZALAC 17
(11 May
2016) at para 20
[17]
See Gaga at
para
48, where it was
held that;
“
By and large employers are
entitled (indeed obliged) to regard sexual harassment by an older
superior on a younger subordinate
as serious misconduct, normally
justifying dismissal. In
SA Broadcasting Corporation Ltd v
Grogan NO and Another,
Steenkamp AJ (as he then was) observed
that sexual harassment by older men in positions of power has become
a scourge in the workplace.
Its insidious presence is corrosive of a
congenial work environment and productive work relations. Harassment
by its nature will
steadily undermine the supervisory authority
vested in the superior, upon which the employer perforce must rely,
and hence will
diminish or even destroy the trust requisite in the
employment relationship; ultimately justifying the imposition of the
sanction
of dismissal. It is appropriate then for this court and
employers to send out an unequivocal message: senior managers who
perpetrate
sexual harassment do so at their peril and should more
often than not expect to face the harshest penalty. Much will depend
on
the circumstances, with the court or commissioner being obliged
to have regard to the nature and gravity of the infringement; the
impact on the victim; the relationship between the perpetrator and
victim; the position and responsibilities of the perpetrator;
and
whether or not there is a pattern of behaviour evidenced by prior
misconduct”