Old Mutual Life Assurance SA (Pty) Ltd v Makanda and Others (JR1246/18) [2019] ZALCJHB 285; (2020) 41 ILJ 444 (LC) (14 October 2019)

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[2019] ZALCJHB 285
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Old Mutual Life Assurance SA (Pty) Ltd v Makanda and Others (JR1246/18) [2019] ZALCJHB 285; (2020) 41 ILJ 444 (LC) (14 October 2019)

IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR1246/18
In
the matter between:
OLD
MUTUAL LIFE ASSURANCE SA (PTY) LTD
Applicant
and
NELSON
JONGIKHAYA MAKANDA
First
Respondent
THE
COMMISSION FOR CONCILIATION, MEDIATION, AND ARBITRATION
Second
Respondent
COMMISSIONER
T HLATSHWAYO
N.O.
Third
Respondent
Date
Heard: 9 July 2019
Delivered:
14 October  2019
JUDGMENT
SIBANDA,
AJ
Introduction
[1]
Old Mutual seeks to review and set aside an arbitration
award, in
which the Commissioner held that Mr Makanda’s dismissal on
allegations of sexual harassment was substantively unfair.
This case
illustrates two principles.
[2]
The first, is the importance of a Commissioner’s
duty to
grapple with mutually destructive versions tendered by single
witnesses. The correct approach to untangling this knot,
is to assess
both versions against three factors, namely: credibility,
reliability, and the probabilities.
[3]
This
approach is tried and tested. However, the importance of its
application is particularly pronounced in cases involving sexual

harassment.  This is so because sexual harassment often takes
place in isolated circumstances, away from the glare of the
third
parties. In such cases, there is little more than (i) the
complainant’s version; (ii) the alleged perpetrator’s

version, and (iii) the objective facts.  It behoves a trier of
fact to interrogate both versions to determine where the truth
lies.
The Commissioner did not do so.
[4]
The second
principle, is that the Commission for Conciliation, Mediation and
Arbitration (CCMA) should be a safe, gender-responsive

dispute-resolution forum. This principle is implicit in existing
domestic legislation. Apart from this, the International Labour

Organisation recently recognised this principle in the
Convention
Concerning the Elimination of Workplace Violence and Harassment in
the World of Work
.
[1]
[5]
This
injunction places several duties on commissioners. Primarily, it
requires commissioners (and litigating parties) to be alive
to the
fraught nature of sexual harassment, and to conduct arbitrations with
the requisite degree of sensitivity. More importantly,
it requires
commissioners to shed patriarchal predispositions in their assessment
of the evidence. Failure to do so, leads to outcomes
that are simply
out of step with society’s fight against gender inequality.
Such outcomes cannot be reasonable.
[6]
Regrettably,
the underlying arbitration, and resulting award, did not rise to
these standards. The Commissioner failed to grapple
with both
versions presented to him. The award is also replete with factual
findings that bear no rational connection to the evidence
adduced.
Worse still, the inferences drawn from these factual findings are
plainly out of step with society’s fight against
gender
inequality.
[7]
In the
circumstances, the award cannot stand.
Background
[8]
The
arbitration took place over a number of days, rendering a large
record comprising over 1400 pages. In what follows, I shall
attempt
to distil the material facts before the arbitrator. I begin by
identifying the
dramatis
personae
.
[9]
Mr Makanda,
who is the first respondent, was employed by Old Mutual as a
Provincial General Manager in Gauteng. This was a relatively
a senior
position. Mr Makanda reported to Mr Clarence Nethengwe (Mr
Nethengwe).
[10]
I shall
identify the complainant as “Ms S” to preserve her
anonymity. During April 2016, Ms S joined Old Mutual as a
Human
Resources Coordinator. Ms S reported to Mr Joshua Mothlabane (Mr
Mothlabane) who, in turn, reported to Mr Maxwell Khubeka
(Mr
Khubeka).
[11]
Both Ms S
and Mr Makanda occupied offices in Old Mutual’s Parktown
campus. It is common cause that, on occasion, Ms S’s
role
required her to assist Mr Makanda with human resources matters. This
dispute concerns three incidents, in which Old Mutual
contends that
Mr Makanda made unwelcome sexual advances towards Ms S. These
incidents were alleged to have taken place on 2 August
2016, 18
October 2016, and November 2016. Mr Makanda denied that these
incidents took place as alleged or at all.
[12]
As such,
each incident is the subject of wildly disparate versions. Given this
divergence, I shall set out Ms S’s version
and Mr Makanda’s
separately.
The
Ms S’s Version
[13]
This is Ms
S’s story. Ms S testified that, in April 2016, Mr Nethengwe
introduced her to Mr Makanda. Over the next few months,
Ms S had
several work-related encounters with Mr Makanda, which passed without
incident.
[14]
However,
the first incident took place on 2 August 2016. The office was not
busy that day. As Ms S surmised, since 3 August 2016
had been
declared a public holiday for Local Government Elections, many
employees likely opted to take advantage of a long weekend.
[15]
At some
stage in the afternoon, while Ms S was alone in her office, Mr
Makanda entered and struck up a conversation with her, during
which
he informed her that he was
en
route
to a meeting in Bedfordview. As this conversation drew to a close, Mr
Makanda extended his hand to her, for what she thought was
a
handshake. Ms S reciprocated and extended her hand. Suddenly, Mr
Makanda pulled her towards him and hugged her tightly. Ms S
described
the hug as uncomfortable. She managed to slightly loosen herself from
his grip. At that point Mr Makanda, whose cheek
was pressed against
Ms S’s, tried to kiss her. Ms S managed to push him away, after
which, Mr Makanda left her office.
[16]
Ms S
testified that this incident shocked her. She initially sat in her
office for a while, trying to unravel what had happened.
Over the
next few weeks, she mulled over the incident and tried to avoid Mr
Makanda.
[17]
It is
common cause that Ms S did not immediately report the incident. Ms S
gave two reasons for failing to do so. The first, was
that she tried
to deal with the immediate trauma of the incident. Once she had
sufficiently recovered from her immediate trauma,
Ms S remained
reluctant to report the incident because she feared being
disbelieved. In Ms S’s analysis, she had insufficient
evidence
to lodge a complaint.
[18]
Ms S
testified that, in the interim, Mr Makanda telephoned her several
times to invite her to late lunches and dinners outside the
office.
Ms S diplomatically declined each of these invitations.
[19]
On 28
September 2016, Ms S had a discussion with Mr Mothlabane. In this
conversation, Ms S told Mr Mothlabane about the incident
of 2 August
2016. Mr Mothlabane invited Ms S to lodge a formal complaint in terms
of Old Mutual’s Sexual Harassment Policy.
Ms S declined to do
so, as she did not feel emotionally ready.
[20]
In his
evidence, Mr Motlhabane confirmed that this meeting took place and
that Ms S reported the incident of 2 August 2018 to him.
Mr
Mothlabane testified that, in an attempt to manage the situation, he
instructed Ms S to avoid working with Mr Makanda.
[21]
After his
meeting with Ms S, Mr Motlhabane decided to informally escalate the
issue to his line manager, Mr Khubeka. It is unclear
from the record
whether Ms S asked him to do so. Nevertheless, Mr Khubeka wanted to
hear about the incident from Ms S personally
and to ascertain what
support he could offer.
[22]
On 18
October 2016, Ms S had a meeting with Mr Khubeka and Mr Motlhabane.
In this meeting, Ms S recounted her version of the 2 August
2016
incident. What is clear, is that Mr Khubeka advised Ms S to confront
Mr Makanda and that there was a broad discussion of how
best to do
so.
[23]
There was,
however, dissensus during evidence, about the exact advice given to
Ms S at this meeting. It appears the trio sought
a diplomatic way for
Ms S to confront Mr Makanda. According to Ms S, Mr Khubeka suggested
informing Mr Makanda that her managers
reprimanded her over a rumour
that someone had observed her being intimate with Mr Makanda in his
office. This rumour was, of course,
concocted. In her evidence, Ms S
admitted this upfront. Mr Khubeka denied dispensing this advice to Ms
S. However, he admitted
that a rumour was likely part of the
conversation
[24]
Very little
turns on this. Whether on Mr Khubeka’s advice or not, the fact
is that Ms S took this exact approach in her later
conversation with
Mr Makanda.
[25]
At any
rate, immediately after this meeting Ms S telephoned Mr Makanda and
arranged to meet with him. It is common cause that this
meeting took
place at approximately 17h00 that evening. This meeting gave rise to
the second allegation of sexual harassment.
[26]
It is
apposite to set out Ms S’s version verbatim. During her
evidence in chief, Ms S’s testified as follows:
“
MS S: I told Mr
Makanda that I had just been to a meeting with my seniors wherein I
was reprimanded about unbecoming behaviour from
myself because there
are allegations that had surfaced about an inappropriate relationship
between him and I.
Mr PATEL: Was what you
told him factually correct?
MS S: It was not.
MR PATEL: So why did you
tell him that?
MS S: Because that is the
advice that I got from my managers in the meeting earlier that day.
MR PATEL: Good.  Now
let us go on.  When you told him what did he say?
MS S: He was shocked.
That was his initial reaction then he then (sic) immediately said he
has no idea where that would come
from considering that there is such
limited contact between him and I and most of the time when we do
have contact at all it is
in a public setting.  So he is shocked
on where those rumours would have come up or what would have informed
such rumours
and then he then (sic) immediately then just took over
the conversation.  I did not get to say much after how I
positioned
my being there with him.  He then took over the
conversation and went on to say a lot of things which also included
him stating
the incidents that I had mentioned from the 2
nd
August as well as his own calls and he spoke to them in the sense
that well I do know – I do remember on such a day I was
in your
office.
…
MS S: On such a day I was
in your office and as I was about to leave your office I hugged you.
Now I know my hugs might have been
a bit tight and uncomfortable but
the reason for that which is something that I never intended on
telling you but because we are
now having this conversation today I
will let you know that the reason for that is because I have had a
crush on you ever since
I met you. So every now and again my feelings
will cause me to do things that I would – I did not necessarily
want to let
out or let show and then he went on then and spoke about
his phone calls…
MS S: For lunch and late
dinners and he would also justify them by it is feelings that I have
for you that I am struggling and finding
it really, really hard to
contain and then he went into lashing out about MAX [Mr Khubeka]…
So he was lashing out
about MAX. MAX always being the instigator or in the middle of such
rumours because it is not the first time
where he finds himself in a
situation where is being – where there is alleged
relationships, inappropriate relationships
between him and women and
all that coming from MAX…
So he was just letting me
know that MAX is always in the middle of such issues where people are
being said to have relationships
of some inappropriate manner with
other people and then he also went on then to let me know that he has
been having fantasies about
me which were so intense that he wished
he was away on business more often because then at least when he is
away on business he
is able to then help himself and act on his
fantasies. I then asked him why he would entertain such fantasies and
his response
was that I have no business asking him or telling him
who to or not to fantasise about.   So that is none of my
business
but what he can do commit to doing is not to act on his
fantasies.
MR PATEL: Good.  And
what happened then?
MS S: So as Mr Makanda is
stating all things physically he has now changed so his face is
flushed and he is (sic) whole demeanour
has changed and he is fidgety
so he is fidgeting in and out of the table.
…
MS S: And then as he is
fidgeting it draws then my attention to the fact that he is now erect
and this was now during the period
where he is very vividly
explaining the types of fantasies he has about me.
MR PATEL: And what does
he say, what are those fantasies?
MS S: He is explaining
how he holds me.
MR PATEL: Yes?
MS S: And also that there
is activities – yes, for lack of a better word, activities of
things that he like to do to me.
MR PATEL: Sexual
activities?
MS S: Sexual Activities,
yes.
…
.
MS S: They were sexual
activities explaining how he would hold me and do to me.
MR PATEL: Explain that to
us so that we have that on record if you can?
MS S: He described my
physical structure and how he would have me on top of him.”
[2]
[27]
Ms S
testified that Mr Makanda repeatedly expressed his feelings for her.
This led Ms S to suspect that Mr Makanda was subliminally
suggesting
they have an affair. Ms S testified as follows:
“
MS S: Up until at
some point I asked him but if you really actually did not intend on
ever professing your feelings or letting me
know of your feelings,
why is it that every other sentence you keep on getting back to
emphasising the feelings you have for me.
At the time I could not
remember the term ‘subliminal messaging’ and I said to Mr
Makanda I do not know why it is that
you are doing or if you are
aware that you – I think that you are trying to plant this in
my mind anyway but I could not
remember the term ‘subliminal
messaging’. I then said to him I will remember and once I
remember what it is that I
am trying to refer to which you are doing
to me I will then let you know what it is. So that is what brought
about this text message
later on that evening.”
[3]
[28]
Finally, Ms
S testified that this meeting ended with Mr Makanda agreeing not to
hug her, or call her for anything other than work-related
reasons.
[4]
[29]
Later that
night, Ms S recalled the meaning of subliminal messaging and sent the
following text message to Mr Makanda:
“
A subliminal
message is a signal or message designed to pass below (sub) the
normal limits of perception. For example, it might
be inaudible to
the conscious mind (but audible to the unconscious or deeper mind) or
might be an image transmitted briefly and
unperceived consciously and
yet perceived unconsciously.”
[30]
A short
while later, Mr Makanda replied with the following text message:
“
Now
it makes sense, it’s truly a psychological game. Not sure I was
consciously playing it or it occurred unconsciously. Thanks
I learnt
something today.”
[31]
On Ms S’s
version, the next few weeks passed without incident.
[32]
During
November 2016, Ms testified that she encountered Mr Makanda in the
basement parking lot. Mr Makanda said he was struggling
to comply
with the agreement they reached on 18 October 2016.
[5]
According to Ms S, at this stage, she realised that the harassment
would not stop.
[33]
However, Ms
S did not lodge a formal complaint about the alleged harassment until
February 2017. In the intervening period, Ms S
procured a transfer to
Old Mutual’s Sandton office as an HR Consultant. This transfer
took effect from 15 January 2017.
[34]
During the
remainder of January 2017, Ms S was in the process of handing over
her duties to the person who replaced her. After settling
into her
new environment, Ms S lodged a formal complaint.
[6]
[35]
I now turn
to Mr Makanda’s version.
Mr
Makanda’s version
[36]
Mr Makanda
testified that, during April 2016, Mr Nethengwe introduced him to Ms
S. At that stage, Ms S had just joined Old Mutual,
and would be part
of the HR team supporting him in his function.
[37]
During the
introduction, Mr Nethengwe made a remark about Ms S’s beauty
and said “
please
do not touch her.
”
Although Mr Makanda considered this remark inappropriate, he did not
pay heed to it.
[38]
According
to Mr Makanda, that same month, he had a meeting with Ms S to discuss
performance contracts. Mr Makanda testified that,
during this
meeting, the following took place:
“
MR MAKANDA:
Soon after she got into my office, what came as a shock to me, as she
was sitting – we were looking at the
computer sitting next to
me, instead of focussing on the computer she started rubbing my left
hand with the palm of her right hand,
and stopped talking about the
contracts, started talking about her love life.
MR MAJA: What did she say
when she was talking about her love life?
MR MAKANDA: She was
talking about why she is cheating for her husband. She is cheating
because she wants to sleep with another man,
she wants to have fun.
MR MAJA: What does that
mean?
MR MAKANDA: It made no
sense to me. I did not know where the talking came from and I was
still a bit shocked though I though it
is an innocent touch, but I
was shocked but I was assisted by my regional – one of my
regional managers walked through, Zoleka
Cima, and as soon as Zoleka
Cima walked through the door she removed her hand changed the topic
back to the performance contract.”
[7]
[39]
Although
this arises from the disciplinary hearing, Mr Makanda repeated this
evidence in the arbitration.
[8]
Mr Makanda testified that he informed his personal assistant about
the incident.
[40]
This led Mr
Makanda to suspect that Ms S had been placed in his office to frame
him for sexual harassment. At any rate, in the subsequent
months, Mr
Makanda continued to work with Ms S without incident.
[41]
Mr Makanda
denied that the 2 August 2016 incident took place at all. He
maintained that, although he was in the office that day,
he did not
encounter Ms S, much less force himself upon her. He testified that
it would not have made sense for him to do so. Being
a weekday, there
were many people in the office. To reach Ms S’s office, he
would have had to pass the tea room, in which
employees often
converged. He could not have passed by unnoticed. Given his
seniority, employees would have interacted with him.
What is more, it
was implausible that the incident could pass unnoticed because Ms S’s
office was visible from the corridor.
Finally, Mr Makanda tendered
his travel logs to demonstrate that he did not travel to Bedfordview
that day, as alleged by Ms S.
[42]
Mr Makanda
also denied inviting Ms S to late dinners. He tendered his telephone
records to demonstrate that he did not telephone
Ms S at all.
[43]
According
to Mr Makanda, his relationship with Ms S was collegial and
professional. She continued to assist him with various tasks
even
after 2 August 2016.
[44]
Mr Makanda
testified that, on 18 October 2016, his secretary informed him that
Ms S sought an urgent meeting with him. He accepted
this meeting and
Ms S arrived late in the afternoon. Mr Makanda hotly disputed Ms S’s
version of this meeting. During his
evidence in chief, Mr Makanda
testified as follows:
“
MR MAKANDA: …
The first thing [Ms S] said to me is that Mr Makanda, I am not here
about a work-related issue.  I am
here about us. Then I asked
who is us. Me and you. Then I started to be short. I do not know us
between me and you. What is it
all about. I am coming from a meeting
with Maxwell Khubeka and Joshua Motlhabane, my bosses. Maxwell
reprimanded me because he
heard that me and you were caught sleeping
in your office and you threatened the person who caught us sleeping,
that should she
tell anyone you will fire her. I was shocked. Who
said that? It is Maxwell. The first this (sic) [Ms S] – my
first question
response, how can I be caught sleeping with you in my
office when I am not even flirting with you. That is my first
question. My
second question, can I call Maxwell after that. [Ms S]
said no, I came to you in confidence, please do not call Maxwell.
Then again
I went back. Then I am shocked, how can I be caught
sleeping with you when I am not even flirting with you. Then I asked
[Ms S],
why are you here [Ms S]. Is it because you are not sure
whether we slept in my office or we did not. [Ms S] did not answer
because
I was also – I do not remember her answer there, I was
shocked but what I remember is what she said [Ms S], Mr Makanda, this

is the third time now you are mentioning that you are not flirting
with me and yet I have got a subliminal message playing in my
head.
MR COMMISSIONER: Come
again?
MR MAKANDA: I have got a
subliminal message playing in my head. I said what is a subliminal
message [Ms S], I do not know that word.
It is a bit new, that word
was new to me. No Mr Makanda, it is a psychological game sort of. But
[Ms S] I am not playing psychological
games here. Okay.
COUNSEL: Just stop there…
MR MAKANDA: Then she said
I will explain what it means when I am at home.”
[9]
[45]
Mr Makanda
admitted that he was fidgeting. He attributed this to the unsettling
contents of their discussion. He said:
“
MR MAKANDA: All I
know is that on the day I was shocked and a bit angry, controlling my
anger because the reason of that I did not
want to show my upset, my
anger because [Ms S] has been in my office almost – that was
the fourth time on that day in a space
of one and a half months
because in the month of September she has been in my office three
times, assisting me with the acquiring
of my PA.”
[10]
[46]
Mr Makanda
denied that he was aroused and, even if he had been, Ms S was not in
a position to observe this. On Mr Makanda’s
version, the
meeting ended as follows:
“
MR MAKANDA:
What
I told [Ms S] was that as from today she must stop coming to my
office.
If I need any human resource assistance, I will ask Joshua, her boss
because I dot (sic) not like these nuances – I will
not be
associated with this kind of nuances in future. So as from today she
must stop coming to my office.  It is incorrect
for her to
mention things like stopping hugging and what is this, shaking hands,
fidgeting, because what she came and spoke about
– about a
rumour. She has been reprimanded by Maxwell about us having been
caught sleeping in my office. So those nuances
I do not like them
.
I said from now onwards, please let us agree if I need any human
resource help, I will ask Joshua because like I said before,
that was
the 4
th
time she has been to my office in a space of one and a half month,
because she was assisting e with the appointment of a BE move
.
She came with shortlisted CVs, employment contract and amended
employment contract third time. Fourth time with this outrageous

rumour of us being caught sleeping. Then at my position, I did not
need that. That was the only agreement, to limit our contact
or she
must keep the distance. That was the agreement because there was
never a mention of 2
nd
August at any stage like she said. There was never mention of I must
stop my advances. Never ever. No mention of those things…”
[11]
[47]
Mr Makanda
did not report this conversation to anybody else.
[48]
Mr Makanda
denied that he met Ms S in the basement during November 2016. He
testified that he had no reason to be in the basement
parking lot
because he parked at surface level in front of the building.
[49]
Mr Makanda
suspected that Ms S was placed in his department to trap him. He
based this conclusion on the April 2016 incident, and
the timing of
Ms S’s formal complaint (which coincided with a competitive
process for a promotion he wanted). Further, in
the build-up to his
disciplinary hearing, Mr Makanda received a text message from another
employee with whom Ms S was friendly.
In this exchange, Ms S warned
that employee of the upcoming hearing and the possibility of Mr
Makanda alleging that she was conducting
an affair with him. When
that employee asked whether Mr Makanda had touched Ms S, she said he
had. However, this was after he asked
several times.
The
disciplinary and arbitration proceedings
[50]
As I
already mentioned above, in February 2017, Ms S filed a formal
complaint of sexual harassment against Mr Makanda. Pursuant
to this
complaint, Old Mutual charged Mr Makanda with sexual harassment,
arising from the incidents of 2 August 2016, 18 October
2016,
November 2016, and the telephone calls.
[51]
After a
lengthy hearing, chaired by a member of the Bar, Mr Makanda was
dismissed for sexual harassment. In turn, Mr Makanda engaged
the
dispute resolution mechanisms in the Labour Relations Act (the
LRA)
[12]
to challenge the
procedural and substantive fairness of his dismissal.
[52]
As to
substantive fairness, Mr Makanda contended that (i) the incident of 2
August 2016 did not happen, (ii) the incident of 8 October
2016 did
not amount to sexual harassment, and (iii) he made no telephone calls
to Ms S during that period.
[53]
In his
procedural challenge, Mr Makanda contended that Old Mutual was
time-barred from proceeding with the disciplinary enquiry.
This was
so because Old Mutual’s Sexual Harassment Policy required Ms S
to report the incident within two months, as required.
[54]
The
Commissioner arbitrated the dispute and found Mr Makanda’s
dismissal to be substantively unfair. The Commissioner did
not
express a finding on procedural fairness, despite being called upon
to do so.
The
award
[55]
The
resulting arbitration award is difficult to decipher. During
argument, counsel for both parties agreed that the award is based
on
five conclusions. In what follows, I shall crystalise these
conclusions.
[56]
The first
conclusion is this: The Commissioner rejected Ms S’s version of
the 2 August 2016 incident. He found it improbable
that the incident
took place because Ms S failed to report the incident timeously. The
Commissioner drew an adverse inference against
Ms S, from her failure
to disclose the text message exchange of 8 October 2016 during
evidence in chief. He inferred that Ms S
was trying to downplay her
role in the matter. The Commissioner expressed this line of reasoning
as follows:
“
Ms S’s
evidence has to be evaluated in its totality. She alleged that the
applicant took advantage of her when he extended
his hand as if for a
hand shake. The applicant attempted to forcefully hug and kiss her in
the office on 2 August 2016.  Ms
S broke off the grip and the
applicant ran out of the office.
Ms S was the HR
consultant in the area of the applicant and Nethengwe had told the
applicant to keep his hands off her.  This
alone should have
assured Ms S that she was protected.  Since Nethengwe said she
had a direct line to him, she should have
raised the issue timeously.
The respondent’s
disciplinary code was specific about the timeline within which to
report the offence. The applicant as a
custodian of the HR policies
was familiar with the time constraints. There was, however, no
provision for condonation or pardon
though in consideration of the
serious allegation I have to deal with the matter as it was
presented.
Ms S did not disclose
that she wrote the whatsapp message relating to subliminal feeling. I
am, therefore, not persuaded that she
was numbed to the extent that
she could not have raised the alarm.  Ms S claimed to have been
afraid that she did not have
enough material evidence to implicate
the applicant at the time.  Ms S claimed to have raised the
issue of the whatsapp in
the hearing though it would have been
imperative to raise the issue before me.  I am wary that this
emerged only through cross-examination
.
I
therefore draw a negative inference against her that she wanted to
underplay her part in the process.
I find that Ms S was not
so afraid that she could not raise the alarm on or immediately after
2 August 2016.”
[13]
(my
emphasis)
[57]
Having done
so, the Commissioner moved to the events of 18 October 2016. The
Commissioner appears to have accepted Ms S’s
version of the
events of 18 October 2016. From his reasoning, one can only deduce
that the Commissioner did not construe Mr Makanda’s
alleged
conduct as sexual harassment. This reasoning forms the second and
third conclusions upon which the award is based.
[58]
The
Commissioner’s second conclusion, was that Ms S’s
behaviour on 18 October 2016 gave Mr Makanda the wrong impression.

This was because (i) Ms S did not directly confront Mr Makanda about
his previous conduct; (ii) she chose to conduct the meeting
in the
evening; and (iii) she commenced the discussion with a false rumour.
Again, it is apposite to repeat the Commissioner’s
reasoning
for illustrative purposes.
“
The second
incident took place on 18 October 2016 when she was advised to
confront the applicant.  Ms S took a route which
gave the
applicant a wrong impression in that she spoke about the rumour
making rounds regarding the fact that they were caught
sleeping
together.
In my considered view the
route taken suggested that Ms S had something to hide.  I would
have expected Ms S to have been brutally
honest with the applicant
and said: I am not at ease with your antics or stop touching me
inappropriately and I don’t relish
it.
I have regard to her
position as HR consultant and she could have shown others that she
was worthy of her position.”
[14]
[59]
The
Commissioner’s third conclusion is that Ms S’s approach
to the incident of 18 October 2016 was inconsistent with
a victim of
sexual harassment. The Commissioner expressed this as follows:
“
Ms S claimed to
have noted that the applicant was flushed, erect and fidgety when he
told her to stop seeing one another.
The manner in which she
addressed the matter was, in my view, not consistent with a person
who was sexually harassed.
Ms S did not state to me
what gave rise to the applicant assuming this state of being erect,
fidgety and flushed. It was only under
cross-examination that it
emerged that the conversation was characterised by sexual
undertones.  Ms S was free to deal with
issues which were
characterised by sexual undertones, considering that she was afraid.
I have regard to the time
at which she approached the applicant at about 18h00 late after
work.  I am not persuaded that Ms
S felt threatened in the
presence of the applicant.”
[15]
[60]
Fourth, the
Commissioner made a credibility finding against Ms S, pertaining
specifically to the incident of November 2016. The
Commissioner
preferred Mr Makanda’s version because he remained consistent
under cross-examination, while Ms S prevaricated
and was ruffled.
This, in the Commissioner’s view, tilted the probabilities in
Mr Makanda’s favour. The Commissioner
expressed this finding as
follows:
“
Ms S claimed the
third incident took place around the parking bay in the basement. The
applicant claimed that his parking bay was
on the surface not
underground.
I am persuaded to prefer
the version of the applicant as he was consistent and did not appear
ruffled under cross-examination.
Ms S appeared to prevaricate
in the course of cross-examination. This, in my considered view,
tilts the scale of probability in
favour of the applicant.”
[61]
Fifth, the
Commissioner found that the telephone calls and invitations to lunch
could not amount to sexual harassment in the context.
He accepted
that Mr Makanda’s telephone records contained several calls to
Ms S, but he could not “second-guess the
contents of these
calls”. The Commissioner expressed this reasoning as follows:
“
The
issue of invitations to lunch could not, in my view, amount to sexual
harassment when I have regard to the working environment
in the
assurance service.
I
have regard to the extent the applicant had gone to refute the
allegation against him in that he retrieved the itemised billing
for
his landline and cell phone for the relevant period.
There
were calls made to Ms S by the applicant, however I don’t know
the content thereof. I can’t second guess the content
of the
calls thus the presence of Ms S’s calls could not be construed
to amount to sexual harassment.”
[16]
[62]
This is the
sum total of the Commissioner’s reasoning. In the premises, the
Commissioner found that Mr Makanda was not guilty
of sexual
harassment and awarded him retrospective reinstatement.
The
test on review
[63]
Broadly,
Old Mutual mounts two main attacks against the award. It contends
that (i) the Commissioner committed a gross irregularity;
and (ii)
the award is so disconnected from the evidence, that no reasonable
decision-maker could have reached that conclusion.
[64]
The
starting point is that no appeal lies against an arbitrator’s
decision. This Court is constrained to determine the application
on
the grounds set out in section 145(2)(a) of the LRA (as suffused by
reasonableness); or on the basis that the decision is one
that a
reasonable decision-maker could not reach.
[65]
The
threshold for interference on review is high. Awards should not be
overturned lightly on review. Minor imperfections cannot,
on their
own, vitiate an award. More substantial irregularities, such as
errors of fact or law, can only unseat an award if they
are material.
[66]
An
irregularity becomes material if it leads the arbitrator to
misconceive the inquiry or renders the result unreasonable. In
Herholdt
v
Nedbank Limited (Congress of SA Trade Unions as Amicus Curiae)
,
[17]
the Supreme Court of Appeal (SCA) captured this as follows:
“
In summary, the
position regarding the review of CCMA awards is this: A review of a
CCMA award is permissible if the defect in the
proceedings falls
within one of the grounds in section 145(2)(a) and the LRA. For a
defect in the conduct of proceedings to amount
to a gross
irregularity as contemplated by section 145(2)(a)(ii), the arbitrator
must have misconceived the nature of the inquiry
or arrived at an
unreasonable result. A result will only be unreasonable if it is one
that a reasonable arbitrator could not reach
on all the material that
was before the arbitrator. Material errors of fact, as well as the
weight and relevance to be attached
to particular facts, are not in
and of themselves sufficient for an award to be set aside, but are
only of any consequence if their
effect is to render the outcome
unreasonable.”
[18]
[67]
In
Head
of the Department of Education v Mofokeng and Others
,
[19]
the Labour Appeal Court
(LAC) held that materiality is determined by evaluating the extent to
which the error warped (or distorted)
the result. If, without the
error, a different result would have been reached, then the error is
material. The LAC captured this
as follows:
“
Irregularities
or errors in relation to the facts or issues, therefore, may or may
not produce an unreasonable outcome or provide
a compelling
indication that the arbitrator misconceived the inquiry. In the final
analysis, it will depend on the materiality
of the error or
irregularity and its relation to the result. Whether the irregularity
or error is material must be assessed and
determined with reference
to the distorting effect it may or may not have had upon the
arbitrator’s conception of the inquiry,
the limitation of the
issues to be determined and the ultimate outcome. If but for an error
or irregularity a different outcome
would have resulted, it will
ex
hypothesi
be
material to the determination of the dispute. A material error of
this order would point to at least a prima facie unreasonable
result.
The reviewing judge must then have regard to the general nature of
the decision in issue; the range of relevant factors
informing the
decision; the nature of the competing interests impacted upon by the
decision; and then ask whether a reasonable
equilibrium has been
struck in accordance with the objects of the LRA. Provided the right
question was asked and answered by the
arbitrator, a wrong answer
will not necessarily be unreasonable. By the same token, an
irregularity or error material to the determination
of the dispute
may constitute a misconception of the nature of the inquiry so as to
lead to no fair trial of the issues, with the
result that the award
may be set aside on that ground alone. The arbitrator however must be
shown to have diverted from the correct
path in the conduct of the
arbitration
and as a result failed to address the question raised for
determination
.”
[20]
[68]
And later, the LAC further went on to state that:
“
Lapses
in lawfulness, latent or patent irregularities and instances of
dialectical unreasonableness should be of such an order (singularly

or cumulatively) as to result in a misconceived inquiry or a decision
which no reasonable decision-maker could reach on all the
material
that was before him or her
.”
[21]
[69]
This
formulation requires the court to first determine whether the
commissioner committed an irregularity. If so, then the next
stage of
the inquiry involves two independent prongs.
[70]
The first,
involves determining whether the irregularity resulted in the
arbitrator misconceiving the nature of the inquiry or his
duties in
connection therewith.
[22]
If
it did, then the award must fall.
[71]
The second,
involves determining the extent to which the irregularity distorted
the result, rendering the outcome unreasonable.
This begs the
question: when is a decision so unreasonable as to warrant setting
aside on review? In
Coega
Development Corporation
(Pty)
Ltd v Commission for Conciliation, Mediation, and Arbitration and
Others
,
[23]
this Court grappled with that question. After surveying numerous
authorities, the Learned Myburgh AJ held:
“
[70] There is a
another issue that warrants some consideration for present purposes —
what is the threshold for unreasonableness?
Traditionally, the
answer is that the decision must fall outside the range of reasonable
decisions. But this, in itself, is not
particularly helpful, because
how does one determine that range?
To
my mind, the issue turns on the intensity with which a review for
reasonableness should be undertaken in the context of this
court
having been tasked (through its review powers) to supervise the
reasonableness of CCMA awards — the higher the
intensity
of the review, the narrower the range of reasonable decisions (and
vice versa).
[71]
In my view, on an overall assessment of the jurisprudence of the LAC
(whose judgments are, of course, binding on this
court and from which
this court takes guidance), it adopts a relatively high intensity
reasonableness review. As a result of this,
on my assessment, where
an award is obviously wrong, the LAC will typically set it aside
on review on the grounds of unreasonableness
— it does not have
to be hopelessly wrong or absurd before it will do so (which is what
the threshold in a lower intensity
review might be).  Seen thus,
the permissible margin for errors by a CCMA commissioner is between
what is objectively right
and what is obviously wrong.  Put
differently, where a decision is obviously wrong, it falls outside of
a range
of reasonableness
.
”
[72]
This
formulation does not blur the distinction between review and appeal.
It sets the outer limits for interference between what
is objectively
right, and obviously wrong. A review court might well disagree with a
finding that falls between these outer limits.
That, on its own, is
not sufficient to vitiate an award on review.
[24]
To do so, would be to overstep this Court’s powers.
[73]
Generally,
if the reasons for the award rationally support the outcome,
interference on the basis of unreasonableness will be
unjustified.
[25]
[74]
So
much for the threshold by which this matter should be determined. In
sum, this review must succeed if (i) the Commissioner committed
a
reviewable irregularity that rendered the decision unreasonable, and
(ii) the outcome is not otherwise justifiable on the evidence
before
the Commissioner.
[75]
To
my mind, the Commissioner committed several irregularities.
Principally, the Commissioner failed to evaluate the evidence before

him. Moreover, in the evaluation he did perform, the Commissioner
clearly misconceived the inquiry and committed numerous factual

errors. I now interrogate these in turn.
The
commissioner’s failure to evaluate the evidence
[76]
The
Commissioner’s primary duty was to resolve the factual
controversy between the parties.
[77]
The
Commissioner was faced with mutually destructive mutually destructive
versions tendered by Ms S and Mr Makanda. If Ms S’s
version was
true, then Mr Makanda was guilty of sexual harassment. There was no
scope to find otherwise. Conversely, if Mr Makanda’s
version
was true, then he was not guilty of sexual harassment.
[78]
There was
no middle-ground between their versions. Nor was there direct
evidence, which is often difficult to come by in sexual
harassment
cases. The Commissioner was bound to accept one version or the other
in respect of each incident.
[79]
The
technique to be employed in this process was laid out by the SCA in
Stellenbosch
Farmers Winery Group Limited and Another v Martell et Cie and Others
.
[26]
“…
The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised as follows.
To come to
a conclusion on the disputed issues a court must make findings on (a)
the credibility of the various factual witnesses;
(b) their
reliability; and (c) the probabilities. 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 probability or
improbability 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 a court's credibility
findings compel it in one direction and its evaluation of the general
probabilities in another.
The more convincing the former, the less
convincing will be the latter. But when all factors are equipoised
probabilities prevail.”
[80]
In
Sasol
Mining(Pty) Ltd v Ngqeleni NO and Others
,
[27]
this Court endorsed the above dictum when it held:
“
[9]
One of the commissioner's prime functions was to ascertain the truth
as to the conflicting versions before him. As I have noted,
this much
the commissioner appears to have appreciated. What he manifestly
lacked was any sense of how to accomplish this task,
or which tools
were at his disposal to do so. The commissioner was obliged at least
to make some attempt to assess the credibility
of each of the
witnesses and to make some observation on their demeanour. He ought
also to have considered the prospects of any
partiality, prejudice or
self-interest on their part, and determined the credit to be
given to the testimony of each witness
by reason of its inherent
probability or improbability. He ought then to have considered the
probability or improbability of each
party's version. The
commissioner manifestly failed to resolve the factual dispute before
him on this basis. Instead,  he
summarily rejected the evidence
of each of the applicant's witnesses on grounds that defy
comprehension…”
[28]
[81]
When faced
with mutually destructive versions, an arbitrator must be equal to
the task and resolve them. If he does so, the scope
for interference
on review is limited, and was summarised in
Simani
v Mosselbay Municipality and Others
,
[29]
as follows:
“
That having been
said, if a commissioner comes to a conclusion and the reasons
provided by him or her for such conclusion objectively
speaking do
not constitute any support for the conclusion, the
reviewing court may be entitled to intervene.
Whether the
court will be entitled to intervene is dependent upon the
nature and scope of the commissioner's erroneous
reasoning in
relation to the final conclusion. If, for instance, none of the
reasons provided by the commissioner in fact
support the ultimate
conclusion, it appears obvious that he or she cannot be said to have
determined the substantive merits of
the dispute and the award will
be set aside.”
[82]
By parity
of reasoning, arbitrator commits a gross irregularity (possibly of a
worse order) when he simply elects a version without
engaging with
the factual dispute at all. In such cases, the award falls far short
of the arbitrator’s duty to resolve the
dispute on the
evidence. The result is more akin to a vote than a quasi-judicial
decision.
[83]
A further
point bears mentioning. The approach in
SFW
is inherently comparative. It requires the Commissioner to assess the
(i) credibility of both witnesses, (ii) their reliability,
and (iii)
the probabilities. Its purpose is to discern which of the mutually
destructive versions is more probable than the other.
This being so,
it cannot be conducted solely by reference to one of the versions,
while completely ignoring the competing version.
If only one version
is put to the test, then only half of the task is performed.
[84]
The duty to
resolve factual disputes by reference to both versions takes on an
enhanced symbolic significance in disputes concerning
sexual
harassment. It is imperative that the process does not only
interrogate the complainant and her version. Equal attention
must be
paid to the alleged perpetrator’s version.
[85]
The
contrary position, in effect, puts the complainant on trial. A
careful consideration of both versions ensures, at the very least,

that the process does not put only the complainant on trial. It is
difficult enough for victims of sexual harassment to come forward,

and subject themselves to a process in which they inevitably re-live
their trauma. This trauma can only be worsened by evidentiary

evaluations that place complainants, and not alleged perpetrators, on
trial.
[86]
At any
rate, the Commissioner does not appear to have evaluated the
competing evidence and conducted the test in
SFW
.
In his “analysis of arguments and evidence,” there is no
reference whatsoever to the credibility, reliability, and

probabilities of Mr Makanda’s version in respect of each event.
This alone is a material irregularity that vitiates the award.
Misconstruing
the issues
[87]
The award
contains several errors of fact and law, which render it deficient,
both at the level of his understanding of the issues
and the
reasonableness of the award.
[88]
I shall
consider these errors in respect of each of the award’s five
foundations.
[89]
I am minded
to commence this analysis by repeating this Court’s dictum in
Rustenburg
Platinum Mines
:
[30]
“
[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 I 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
dictate that one must look deeper and objectively into the
reasons
why incidents of sexual harassment are not immediately reported.
This examination again has to do with how human beings
react
differently to the same or a 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.”
[90]
When
seen in this light, the five foundations of the Commissioner’s
award cannot withstand scrutiny. Each premise either lacks
foundation
on the evidence, or betrays an insensitivity to the nature of sexual
harassment.
[91]
I
am alive to previous injunctions against adopting a piecemeal
approach to reviews. By engaging with the enquiry in this way, I

merely aim to show how, individually and cumulatively, the
Commissioner erred.
The
first conclusion: 2 August 2016
[92]
The
Commissioner’s first conclusion relates to the events of 2
August 2016.
[93]
As a
starting point, it is not clear whether the Commissioner found (i)
that the incident took place, but did not amount to sexual

harassment, or (ii) that the incident did not take place at all. The
Commissioner’s analysis seems to focus solely on Ms
S’s
failure to report the incident and her alleged complicity. The
Commissioner simply concludes that “…
Ms
S was not so afraid that she could not raise the alarm on or
immediately after 2 August 2016.
”
[94]
This
finding sheds no light on the issue that the Commissioner was
required to resolve. The issue was whether the incident took
place
and, if so, whether it amounted to sexual harassment.
[95]
The
conclusion is capable of two interpretations. On one hand, it can be
read to mean that the incident likely did not take place
because Ms S
did not report it timeously, with no good reason. On the other hand,
it could mean that the incident indeed occurred,
but that Ms S was
time-barred from raising the complaint.
[96]
Neither of
these constructions is reasonable or justifiable on the evidence
before the Commissioner.
[97]
If the
Commissioner intended to infer from Ms S’s failure to report
the incident immediately after it occurred (or within
the time
periods set in the Policy) that it did not take place, then this
finding is plainly wrong.
97.1
First,
this finding jars with the uncontroverted evidence that Ms S reported
the matter to Mr Mothlabane on 28 September 2016. This
was within the
two-month period contemplated in the Policy. Both Ms S and Mothlabane
testified that Ms S reported the incident.
Ms S also repeated her
version of the incident to Mr Khubeka on 8 October 2016.
97.2
Second,
assuming that Ms S reported the incident late, one cannot infer from
this alone, that the incident did not take place.
97.3
Third,
Ms S tendered two reasons for not reporting the incident. Ms S
testified that she was traumatised and was afraid that she
did not
have sufficient evidence of the incident. Given that there were no
other witnesses to the incident, there is nothing unreasonable
about
this evidence. It is not uncommon for victims of sexual harassment to
fear being disbelieved and the consequences thereof.
Nor is it
uncommon for victims to try to process the incident in their own
minds before taking an action.
97.4
This
cannot reasonably form the basis for rejecting her version. The
Commissioner failed to appreciate that there is no standard
reaction
to trauma. This is not the last time the Commissioner commits this
error.
[98]
If the
Commissioner intended to convey that Ms S was time-barred, then the
Commissioner misconceived the enquiry and did not actually
decide the
issue.
98.1
The
issue was simply (i) whether the incident of 2 August 2016 took
place, and (ii) if so whether it amounted to sexual harassment.

Neither of these questions are answered with reference to the timing
of Ms S’s complaint.
98.2
This
finding has its roots in Mr Makanda’s procedural complaint. He
contended that the Policy required an incident to be reported
within
two months, failing which it could no longer be raised. He relied on
clause 6.1,
[31]
and Appendix
1,
[32]
to the Policy.
98.3
The
proposition that these provisions of the Policy bar a complainant
from raising a complaint about one of the most heinous forms
of
workplace discrimination, and one of the worst invasions of a woman’s
bodily integrity, lacks rigour. It cuts against
an employer’s
fundamental duty to ensure a workplace that is free from sexual
harassment.
98.4
It seems
plain that the purpose of these provisions was to encourage victims
of sexual harassment to lodge their complaints as soon
as possible,
to procure expeditious resolution of the issue and to avoid losing
evidence. It cannot be that the employer’s
duty to prosecute a
disciplinary hearing prescribes by virtue of the late referral. A
proper reading of the Policy demonstrates
this, because it does not
prevent the employer from prosecuting a complaint that is filed
outside the two-month window.
98.5
In any
event, time-barring is irrelevant to the dispute. At best for Mr
Makanda, this could only go to procedural fairness. It does
not tend
to prove or disprove, as the Commissioner suggests, that the incident
did not take place.
[99]
What is
perhaps more pungent, is the Commissioner’s inference that Ms S
sought to “…
underplay
her part in the process.
”
I describe this finding in such strong terms for good reason.
99.1
First,
it is based on the assumption that Ms S “led on” Mr
Makanda. This, in the face of her evidence that Mr Makanda’s

advances were unwelcome. Even if they had been welcomed at a stage
(which was not the evidence before the Commissioner) it ignores
the
basic principle that prior consensual participation does not mean
that the conduct continues to be welcome.
99.2
Second, to
reach this conclusion the Commissioner must necessarily have found
that the incident of 2 August 2016 took place. The
award is bereft of
any such finding.
99.3
Third,
the inference is illogical. The Commissioner drew this inference from
the text messages exchanged on 18 October 2016. He
used this to
suggest that Ms S had a role to play in the events of 2 August 2016,
over two months earlier. This conclusion does
not follow. Nothing in
the text message invited the Commissioner’s conclusion. The
fact that Ms S sent a text message describing
the definition of a
subliminal message two months later, does not tend to prove or
disprove that the incident of 2 August 2016
took place. Nor does it
prove that she was somehow complicit in her harassment.
99.4
Most
fundamentally, to draw this inference, the Commissioner had to
believe that (i) Mr Makanda’s defence was that his alleged

advances were consensual (and thus not unwelcome), or (ii) that Ms S
invited Mr Makanda’s alleged advances. This was never
the case
before the Commissioner. Mr Makanda denied the events of 2 August
2016. He could not simultaneously maintain that denial
and contend
that the same alleged advances were consensual.
[100]
Finally,
the Commissioner was wrong in his observation that Ms S did not
testify about the text messages during her evidence in
chief. I have
already referred, in the summary of her version above, to the portion
of the transcript in which Ms S testified about
the text message
during evidence in chief.
[33]
In any event, the text messages did not assist in determining whether
the incident of 2 August 2016 took place.
[101]
In summary,
the entire objective of the inquiry appears to have eluded the
Commissioner. His findings in respect of the 2 August
2016 incident
are misconceived. Virtually nothing mentioned in the Commissioner’s
reasoning determines the actual issue.
Precious little is rationally
connected with the evidence before the Commissioner. Each constituent
conclusion is so patently flawed
as to fall outside the limits of
reasonableness.
The
Second Conclusion
[102]
The
Commissioner’s second conclusion was that Ms S’s conduct
on 18 October 2016 was inconsistent with a victim of harassment.
This
was because Ms S did not confront Mr Makanda directly and her
approach gave Ms Makanda an incorrect impression.
[103]
Again, the
Commissioner failed to grasp or determine the issue. The issue was
whether the discussion between Ms S and Mr Makanda
took place as Ms S
alleged it, or as Mr Makanda alleged it. If the Commissioner found
the former, it had to follow that Mr Makanda
was guilty of sexual
harassment.
[104]
The
Commissioner’s conclusion seems to suggest that he accepted Ms
S’s version, but found that Ms S invited Mr Makanda’s

advances by confronting him in the way that she did. Thus, consent
was achieved and Mr Makanda’s actions were welcome. There
are
significant difficulties with this.
[105]
Fundamentally,
the Commissioner’s finding is a throw-back to times where
anything short of rebuffing an unwelcome advance
in the strongest
terms, sufficed for consent. This finding is well outside the bounds
of reasonableness. What is more, it is out
of step with the
Legislature’s laudable attempts to ensure a gender-responsive
dispute resolution mechanism, which are set
out in the
Code
of Good Practice on the Handling of Sexual Harassment in the
Workplace.
105.1
Item 5.2.1
of the Code recognises that: “
There
are different ways in which an employee may indicate that sexual
conduct is unwelcome…
”
105.2
This item
expresses an understanding that there is no standard uniform reaction
to sexual harassment. It recognises the invidious
position in which
victims find themselves. I cannot express it better than the
Industrial Court did
J
v M Ltd
:
[34]
“
The
victims of harassment find it embarrassing and humiliating. It
creates an intimidating, hostile and offensive work environment.

Work performance may suffer and career commitment may be lowered. It
is indeed not uncommon for employees to resign rather than
subject
themselves to further sexual harassment. The psychological effect on
sensitive and immature employees, both male and female,
can be
severe, substantially affecting the emotional and psychological
well-being of the person involved. Inferiors who are
subjected to
sexual harassment by their superiors in the employment hierarchy are
placed in an invidious position. How should they
cope with the
situation? It is difficult enough for a young girl to deal with
advances from a man who is old enough to be her father.
When she has
to do so in an atmosphere where rejection of advances may lead
to dismissal, lost promotions, inadequate pay
rises, etc - what
is referred to as tangible benefits in American law - her position is
unenviable.
Fear
of the consequences of complaining to higher authority whether the
complaint is made by the victim or a friend, often compels
the victim
to suffer in silence. That sexual harassment of an employee in an
inferior position is despicable is only fully
realized when one
has to comfort a young girl crying her heart out in a quiet
corner.”
[35]
105.1
The
Commissioner appears to have expected Ms S to react in a
confrontational manner, leaving no room for her to approach the issue

in the manner she saw fit. In the Commissioner’s mind, anything
short of this justified the inference that she invited what
followed.
105.2
Even the
Commissioner’s formulation of the standard response, such as it
is, is problematic to say the very least. The subtext
is that, unless
the victim expressly says “…I don’t relish it…”
or words to that effect, the perpetrator
can safely assume that she
does.
[106]
At any
rate, Ms S chose to introduce the conversation with a false rumour.
It is not difficult to imagine why, given the sensitivity
of the
topic, and the power dynamics at play. It is also difficult to
conceive how the Commissioner could infer that Ms S “
had
something to hide
”
by approaching the issue the way she did. Nothing in the award sheds
light on what this could be.
[107]
There was
no factual basis to infer that, by introducing the conversation as
she did Ms S “…
gave
the applicant a wrong impression
.”
It was never Mr Makanda’s version that he gained the wrong
impression from Ms S. He did not testify that he understood
the
rumour to be an invitation to express the fullness of his alleged
attraction to Ms S. Quite the contrary, Mr Makanda maintained
that he
took exception to the rumour.
[108]
In short,
the Commissioner failed to decide the dispute on the evidence before
him.  He misconceived the kernel of the actual
dispute insofar
as it related to the October incident.  As a result, his
conclusions, and inferences drawn, cannot be traced
to the evidence
before him.
The
Third Conclusion
[109]
The third
foundation is that Ms S did not state the facts which gave rise to
her conclusion that Mr Makanda was aroused during their
conversation
on 18 October 2016. The Commissioner said this only arose in
cross-examination. It did not. The Commissioner appears
to have
missed the portion of Ms S’s evidence where she stated, in some
detail, what happened during the discussion. There
could be no
reasonable conception of her description of the conversation being
anything other than overtly sexual, let alone one
characterised by
sexual undertones.
[110]
Having read
the record, I can only assume that this conclusion was formed from an
unfortunate line of cross-examination by Mr Makanda’s

representative:
“
COUNSEL: Okay,
look at Mr Makanda’s physical structure would you see when he
has an erection.
MR PATEL: Sorry Mr
Arbitrator, I am not sure what is happening.  Is he giving
evidence?
MR COMMISSIONER: No, he
is just demonstrating, he has already said that the way he is
physically you cannot see his erection and
so he has gone backwards.
It is not like giving evidence.
COUNSEL: Yes.
MR COMMISSIONER: He is
merely showing that this is just ocular, there is nothing here.
He is not saying anything.  He
is simply saying that if you
look, he has a pouch and he says if you are there he says you cannot
see, so there is nothing here…(inaudible)…
What is your
comment Ma’am?
MS S: Yes, I saw his
erection.
MR COMMISSIONER: That is
it.
COUNSEL:
By
the show of hand, how big was it
?
MS S: I do not know...
(inaudible)…”
[36]
[111]
The last
question was gratuitous. Counsel sought to extract the concession
that Ms S was not in a position to see Mr Makanda’s
state. The
witness maintained that she could. That was enough. Unless counsel
sought to put a factual version to the witness concerning
Mr
Makanda’s endowment (which in itself would be of questionable
value), then he could go no further. There was no value
in the
remaining line, except to embarrass the witness. This is precisely
the type of questioning that leads to the notorious under-reporting

of sexual harassment incidents. The Commissioner did not intervene.
On the contrary, he appears to have adopted the underlying
reasoning
lock stock.
[112]
That aside,
the issue begins and ends with the Commissioner’s failure to
consider Ms S’s evidence.
The
fourth conclusion
[113]
The fourth
conclusion is a credibility finding against Ms S. The Commissioner
preferred Mr Makanda’s version because he remained
consistent
under cross-examination. According to the Commissioner, Ms S
prevaricated and appeared ruffled. This, in the Commissioner’s

view, tilted the scale of probability in favour of the applicant.
[114]
Although
credibility findings are not immune from review, a court should be
loath to interfere with such findings. It should only
do so if the
finding is completely out of kilter with the evidence on the record
and the probabilities on the whole.
[37]
[115]
Factors
such as demeanour are indeed best observed by the Commissioner.
However, others should manifest themselves in the record.
As this
Court observed in
Harmony
Gold
Mining
Co Limited v Commission for Conciliation, Mediation and Arbitration
and Others
[38]
“
What
the analysis above makes clear is that observations of demeanour are
merely one factor among many in assessing credibility
and many
factors bearing on credibility will be apparent from the transcript
of evidence. It is also obvious that credibility
findings based
on observation of the witness are not the only or the first recourse
in assessing credibility and even less
so in evaluating
probabilities. Adjudicators should be wary of making
definitive credibility findings based on their
supposed
omniscient ability to detect unreliable evidence solely from
observing a witness.”
[116]
The pith of
the dispute is whether the Commissioner’s acceptance of Mr
Makanda’s version over Ms S’s is a decision
that a
reasonable decision-maker could not reach. This formulation was
recently endorsed by the LAC in
Department
of Health, Kwa-Zulu Natal
v Public
Servants Association of South Africa and Others.
[39]
[117]
The
Commissioner’s credibility finding was based on Ms S’s
prevarication and her demeanour.
[118]
The
Commissioner does not indicate in what respect Ms S prevaricated.
This is unsatisfactory. The Commissioner’s central role
is to
determine the dispute between the parties. If this dispute turns on a
credibility finding, it behoves the Commissioner to
set out the
reasons for that credibility finding in sufficient detail. This does
not require painstaking detail. The Commissioner
should simply cite
the facts from which he concluded that Ms S prevaricated. The parties
should not be left guessing about the
basis on which their dispute
was determined, as they have been in this case.
[119]
The
specific instances where Ms S prevaricated under cross-examination
should be manifest from the record. They are not. Mr Makanda’s

Counsel suggests three main inconsistencies from which the
Commissioner concluded that Ms S prevaricated. None of these are
manifest
from the record. Nor can they reasonably form the basis of a
credibility finding.
[120]
The first
inconsistency, is that Ms S was untruthful about the advice she
received from Mr Khubeka. This can only be based on Mr
Khubeka’s
evidence where he denied that he advised Ms S to commence the
discussion with a rumour. Mr Makanda appears to conflate
internal
inconsistencies within Ms S’s evidence and evidence that is
rebutted by another witness. In the former, a witness
can be said to
“prevaricate”. In the latter, a witness would remain
consistent in their version, but their evidence
would be contradicted
by another witness. Ms S remained consistent throughout
cross-examination on this score. She consistently
maintained that Mr
Khubeka advised her to commence the discussion with a rumour. She did
not prevaricate in this regard.
[121]
Properly
construed, counsel’s argument on this score is that Mr
Khubeka’s evidence contradicted Ms S’s. Even this
does
not bear scrutiny because Mr Khubeka testified that commencing the
conversation with a rumour was certainly part of the discussion
that
evening. He only denied that it was his advice.
[122]
The second
inconsistency relates to the manner in which Mr Makanda telephoned Ms
S. The trouble with this argument, is that it was
common cause that
Mr Makanda telephoned Ms S. How he did so, is immaterial and cannot
reasonably form the basis of a credibility
finding. A witness cannot
be expected to remember, in meticulous detail, whether a discussion
was conducted by landline or mobile.
[123]
The third
inconsistency relates to whether the conversation in November 2016
took place in the basement parking. It was put to Ms
S that Mr
Makanda parks at surface level. Again, this is immaterial. It does
not tend to prove or disprove that the conversation
did not take
place.
[124]
I turn now
to the more difficult question of demeanour. In principle, a review
court should be deferent to the Commissioner’s
findings on
demeanour. With good reason: the trier of fact is steeped in the
atmosphere of a trial, while the review court is limited
to the
record. The trier of fact is, thus, uniquely placed to observe the
demeanour of a witness.
[125]
In
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
,
[40]
the Constitutional Court sounded a warning, about the weight to be
placed on the demeanour of a witness. It observed, with reference
to
S v
Kelly
,
[41]
that demeanour is a
tricky horse to ride and that of all the factors involved in
assessing credibility, the witness’s demeanour
can be the most
misleading. This is because, people differ in nature. A crafty
witness can appear honest, while a truthful witness,
who is shy in
nature, can appear dishonest. As such, the truthfulness or otherwise
of a witness can rarely be determined by reference
to demeanour
alone, especially without regard to the probabilities. It said:
“
The
advantages which the trial court enjoys should not, therefore, be
over-emphasised ‘lest the appellant’s right of
appeal
becomes illusory’.  The truthfulness or untruthfulness of
a witness can rarely be determined by demeanour alone
without regard
to other factors including, especially, the probabilities. As
indicated above, a finding based on demeanour involves
interpreting
the behaviour or conduct of the witness while testifying. The passage
from
S
v Kelly
above
correctly highlights the dangers attendant on such interpretation.
A further and closely related danger is the implicit assumption, in
deferring to the trier of fact’s findings on demeanour,
that
all triers of fact have the ability to interpret correctly the
behaviour of a witness, notwithstanding that the witness may
be of a
different culture, class, race or gender and someone whose life
experience differs fundamentally from that of the trier
of fact
.”
[42]
(my
emphasis)
[126]
I
emphasise the last portion of this extract, because it bears direct
relevance to this case.
Having
been steeped in the atmosphere of the arbitration, the Commissioner
described Ms S’s appearance as “ruffled”
at stages.
Ms S might well have appeared “ruffled”. If she did, that
would be understandable. Ms S was subjected to
the most uncomfortable
cross-examination, involving questions of the type I mentioned
earlier.
[127]
Commissioners
should be alive to the sensitivity involved in matters of sexual
harassment, involving as it inevitably does, gender
imbalances in
society. The mere fact that Ms S appeared ruffled, is not necessarily
an indication that she was being untruthful.
It could indicate the
contrary, because one could expect a victim of sexual harassment to
be traumatised. Worse still, when she
is asked to relive the events
in explicit detail.
[128]
The
Commissioner was unsympathetic to this possibility. This is reflected
throughout his award, which is underpinned by chauvinist
assumptions
such as —
128.1
The notion
that a woman can only respond to sexual harassment in a directly
confrontational manner.
[43]
Anything shy of that, invites the inference that the advances are
welcome;
128.2
The notion
that a woman who does not “raise the hue and cry”
immediately is unlikely to have been the victim of sexual

harassment;
[44]
128.3
The notion
that there is a standard way to confront sexual harassment at all is
problematic. More so, the notion that a woman who
refers to a rumour
about sex, invites anything that follows;
[45]
and
128.4
The notion
that, by sending an innocuous text message, Ms S invited what
followed.
[46]
[129]
As a
result, I cannot reasonably defer to the Commissioner’s finding
on Ms S’s demeanour.
The
fifth premise
[130]
The
Commissioner found that, having regard to industry,  invitations
to lunch could not amount to sexual harassment. Although
the
Commissioner accepted that Mr Makanda’s telephone records
reflected several calls to Ms S, he was not inclined to “
second-guess
the contents of these calls
”.
Both of these components warrant interrogation.
[131]
The
general statement that invitations to meals outside the office
cannot, on their own, amount to sexual harassment is acontextual.
It
loses sight of the fact that an invitation to lunch can, in certain
circumstances, be an unwelcome advance of a sexual nature.
It can
also simply be purely work-driven and thus, not a sexual advance.
Either way, the nature of the advance can only be determined
by
reference to the context.
[132]
It
is no good to have regard only to the prevailing context within the
industry, as the Commissioner did. It is difficult to conceive
of any
industry in which co-workers do not invite one another to social
events or meals. The real issue is whether the particular
invitations
amounted to sexual harassment. The marrow of the dispute lies in the
particular context of those invitations. It would
involve
interrogating,
inter
alia
,
(i) the nature of the relationship between both parties; (ii) events
that have passed; (iii) how the invitation was conveyed;
(iv) the
stated intention behind the invitation; and (v) the basis of the
perception that the invitation was a sexual advance.
These
considerations are common sense, and by no means, a closed list.
[133]
The
Commissioner was invited to consider these circumstances. Ms S
testified that Mr Makanda made several telephone calls to her,
in
which he invited her to late lunches and dinners outside the office.
Mr Makanda denied making any telephone calls to Ms S. He
tendered his
telephone records as proof of this. In cross-examination, he conceded
that Ms S’s number appeared in his telephone
log. Hence it was
established, as a fact, that Mr Makanda made the telephone calls to
Ms S. What remained was the content of these
telephone calls.
[134]
The
Commissioner declined to “second guess” the content of
the telephone calls. There was no need for him to do so.
The
Commissioner had Ms S’s version of the discussions. His role
was to establish whether Mr Makanda made unwarranted sexual
advances,
by reference to the factors I have described above. He did not do so.
In the result, the Commissioner actually failed
to decide the issue
and to grapple with the evidence.
The
Consequence of these Irregularities
[135]
The sum of
the above analysis is that the award falls to be set aside on review.
This is primarily so because the Commissioner failed
to perform his
dispute resolution function. In instances where he performed this
function, the Commissioner appears to have either
wholly misconceived
the nature of the inquiry, or rendered an outcome that bore no
rational connection to — or could not
reasonably have arisen
from — the evidence led.
[136]
What is
more, to the extent that it is relevant given the misdirections
above, the Commissioner’s decision is not one that
a reasonable
decision-maker could reach.
Substitution
[137]
Having
found the award to be reviewable, the next issue is whether to
substitute the award or refer it back to the CCMA.
[138]
I am minded
to determine the matter. There is a full record, comprising over 1400
pages, capturing both the disciplinary and arbitration
proceedings.
The evidence has been fully ventilated. This Court is as well-placed
to decide the matter as the CCMA would be. I
now turn to this task.
[139]
I have
already summarised both parties’ versions of the events of 2
August 2016. In short, Ms S contends that Mr Makanda forced
himself
on her in her office. Mr Makanda admits that he was in the office all
day, but denies ever seeing Ms S that day. This factual
dispute is to
be determined by reference to the credibility and reliability of both
parties’ versions, along with the probabilities.
[140]
Nothing in
the transcript suggests that Ms S was not a credible witness. She was
entirely without guile. She made the necessary
admissions, even when
they were not ideal.
[141]
Mr Makanda
sought to challenge Ms S’s bias. He suggested that Ms S was
part of a conspiracy to prevent his promotion. In support
of this, Mr
Makanda contended that Ms S’s report coincided with his
interview for a promotion. Ms S gained nothing by reporting
the
alleged incidents of sexual harassment. Quite the contrary, in doing
so, Ms S would have had to endure scrutiny into her private
life
throughout the course of several proceedings. Second, one cannot
conclude that the timing of her report was designed to scupper
Mr
Makanda’s promotion, in an interview process that occurred in
February 2017 — Ms S informally reported the incident
from as
early as September 2016. She repeated her version of the incident in
a subsequent discussion with Mr Khubeka. This occurred
months before
the interview process. It might well be that her formal report
coincided with the interview process in February 2018.
Ms S’s
explanation for the delay in reporting the incident, was that she
needed time to (i) engineer her move to the Sandton
office and, (ii)
once that move succeeded, to settle in. There is nothing inherently
problematic with this explanation.
[142]
I cannot
find any material contradictions, whether internal or external in Ms
S’s version. Ms S consistently maintained her
version of the
incidents. Quite apart from the two occasions when she did so with
her line managers, which were contemporaneous,
Ms S later maintained
that Mr Makanda inappropriately touched her in a text message to
another colleague.
[47]
Even
after that, Ms S’s version remained consistent during the
disciplinary hearing and in the arbitration. This despite
probing,
uncomfortable, and at times inappropriate cross-examination.
[143]
There was
nothing inherently improbable about Ms S’s version. Mr Makanda
sought to challenge this in two ways.
[144]
First, Mr
Makanda said it was improbable that he would approach Ms S in her
office without being seen because (i) there were people
in the
office, and (ii) people could easily see into Ms S’s office. Ms
S countered this by saying that, at the time, the
office was
relatively empty, given the impending public holiday. She admitted
that her office was visible from the outside. However,
since the
glass was partly sandblasted, it would not be easy for people to see
inside. This was not meaningfully challenged. To
the extent that Mr
Makanda’s questions went to his own risk assessment, this was
irrelevant. Ms S cannot speak to Mr Makanda’s
internal risk
assessment. If this was tendered to demonstrate the unlikelihood of
the event having occurred at all due to the lack
of corroborative
witnesses, this was sufficiently countered by Ms S’s evidence
that there were few people in the office at
the time.
[145]
Second, Mr
Makanda challenged Ms S’s evidence that he told her that he was
en route
to Bedfordview. He tendered his travel log to prove that he did not
travel at all that day. This fact is neutral. On one hand,
it tends
to prove that Mr Makanda did not tell Ms S that he was
en
route
to Bedfordview. It does not, however, tend to prove that the incident
did not take place. Quite the contrary, Mr Makanda’s
travel
logs place him in the office on the day of the alleged incident.
[146]
On the
probabilities, there is a logical flow to Ms S’s evidence. It
can simply be summarised as follows. On 2 August 2016,
Mr Makanda
attempted to push himself on her. She reacted with shock. She
ultimately reported the incident to her line manager.
In turn, he
reported it to Mr Khubeka. Both suggested that Ms S confront Mr
Makanda about the incident. She did so. This led to
the 18 October
2016 meeting. Although she experienced further harassment during this
incident, both she and Mr Makanda agreed to
limit their contact. Ms S
thought the issue had been resolved. However, in November 2016, she
had a discussion with Mr Makanda
which suggested otherwise.
Consequently, she extricated herself from that working space, and
moved to Sandton. Having settled down,
Ms S decided to formally
report the issue.
[147]
The same
cannot be said of Mr Makanda’s version. Mr Makanda’s
narration of the facts, from the very beginning, casts
doubt on his
veracity. Mr Makanda testified that, one of his first interactions
with Ms S took place in April 2016, when she rubbed
his hand and
spoke of her dissatisfaction in her marriage. I find this version
hard to believe. The very first time it was raised,
was in the course
of disciplinary proceedings. At no stage before that, did Mr Makanda
think to raise it. On his own version, Mr
Makanda did not even raise
it during the October incident, when it was ripe for him to do so. He
tendered no explanation for his
failure to do so. The irresistible
inference is that the April 2016 incident was contrived in an attempt
to cast doubt over Ms
S’s character. This inference is buoyed
by the fact that Mr Makanda failed to call Ms Cima to testify in
support of the April
2016 incident at the arbitration.
[148]
Mr
Makanda’s version of the discussion of 18 October 2016 also
warrants interrogation. Only two aspects of this discussion
are
common cause: how the discussion commenced, and how it ended. What
happened in between is disputed. Mr Makanda’s version
is
problematic in several respects, which indicate that the conversation
did not go as he says it did.
[149]
First, Mr
Makanda’s narration of the October 2016 incident was
inconsistent. During the disciplinary hearing, Mr Makanda testified

that he encouraged Ms S to record their conversation.
[48]
He did not give this version during the arbitration. This
inconsistency is relatively minor, and could be overlooked if it was

the only one. However, it was not.
[150]
Mr Makanda
also testified that, at a stage, he wanted to telephone Mr Khubeka
and Ms S asked him not to do so as “…she
had approached
him in confidence.” This beggars belief because Ms S confronted
Mr Makanda on Mr Khubeka’s advice and
instruction. In fact, Ms
S told Mr Makanda that Mr Khubeka had reprimanded her for their
relationship. It is inconceivable that
she would tell Mr Makanda that
she had approached him in confidence.
[151]
Third, Mr
Makanda did not challenge Ms S about her alleged actions
i
n
April 2016, when she rubbed his hand. Ms S had confronted him with
rumours of an amorous affair between them. On Mr Makanda’s

narration of events, these could only have arisen from the events of
April 2016. Yet Mr Makanda remained silent. He did not confront
Ms S
about this event at all. It would have made sense for him to do so,
given that this was the only incident of sexual contact
between them.
It is inconceivable that Mr Makanda could have taken exception to the
allegations proffered by Ms S without so much
as referring to this
incident.
[152]
Fourth,
pursuant to the discussion in October 2016, Mr Makanda faced a
serious operational issue, to which Mr Makanda did not react
as one
would expect of a reasonable manager. On his version, Mr Makanda told
Ms S, in no uncertain terms, never to darken his door
again. If he is
to be believed, the reason for this was serious: Ms S falsely
implicated him in an affair with her and in an attempt
to cover it
up. These were serious allegations. It is inconceivable that he would
not report that issue to Ms S’s line manager
(Mr Khubeka) at
all, let alone immediately afterwards. Any reasonable person would
have done so, at the very least, to manage the
risk of working with
Ms S and being exposed to future accusations.
[153]
The
inescapable inference to draw from Mr Makanda’s failure to
report the outcome of the meeting, is that the circumstances
from
which it arose were embarrassing. Such embarrassment could only have
arisen from the manner in which he conducted himself
in that meeting.
I pause to note that Ms S also failed to report the October 2016
incident to Mr Khubeka. The difference is that
Ms S explained her
failure to do so. She said, despite the egregious nature of what
occurred, she thought the matter was resolved
by the agreement to
maintain distance. No explanation appears at all from Mr Makanda.
[154]
Finally, Mr
Makanda was untruthful about the telephone conversations. His initial
version was that he did not telephone Ms S at
all. He tendered
telephone records as proof. However, under cross-examination, Mr
Makanda conceded that Ms S’s telephone
number appeared on his
call logs.
[155]
Seen in
this light, Mr Makanda’s version is woefully deficient. It is
riddled with fundamental internal and external contradictions.
There
are also inherent improbabilities and unexplained gaps. No reasonable
decision-maker, having grappled with this version,
could accept it
over Ms S’s.
Conclusion
[156]
In summary,
it is apparent that the Commissioner committed several
irregularities. The most fundamental, is that he failed to properly

assess and resolve the dispute between the parties. The Commissioner
dismissed Ms S’s version as implausible, without analysing
it
against the competing version. In doing so, the Commissioner
erroneously construed the evidence and the positions of both parties.
[157]
In cases
involving mutually destructive versions of single witnesses, it is
vital to assess the evidence of both parties. This is
more so in
cases involving sexual harassment, involving as it does, potentially
devastating consequence of being labelled a “sex
pest” or
a liar. It is fundamental that the victim’s version be tested
against that of the alleged perpetrator and
the objective facts.
[158]
Only after
a complete consideration of both versions can it be said that the
dispute has been adjudicated. This analysis should
appear from the
Commissioner’s award. This is not to say that the
Commissioner’s award should contain an exhaustive
analysis such
as the one I have attempted above. However, at the very least, it
should show why one version was preferred over
the other. Anything
short of that, is not a quasi-judicial decision, but a vote. It is
not enough to proffer a catch-all phrase
to the effect that the
Commissioner has considered the evidence holistically. If this is not
apparent from the Commissioner’s
reasons, then this phrase is a
mere platitude.
[159]
In light of
my findings above, there would be no point in remitting the matter to
the CCMA for fresh consideration. In any event,
little could be
achieved by this, save for another painstaking process. As such, I am
inclined to substitute the award.
[160]
In the
premises, I make the following order:
Order
1.
The
arbitration award issued by the Third Respondent is reviewed and set
aside, and substituted with the following order:
“
the dismissal of
the first respondent was procedurally and substantively fair.”
2.
Each party
is to pay its own costs.
M
Sibanda
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:               Advocate
F Boda SC
Instructed
by:                     Cliffe

Dekker Hofmery Inc
For
the First Respondent:   Advocate Mashele
Instructed
by:                      Maja

Inc
[1]
Convention
190 adopted on 21 June 2019.  Article 10(e) requires member
States to take measures to “…
provide
that victims of gender-based violence and harassment in the world of
work have effective access to gender-responsive,
safe and effective
compliant dispute-resolution mechanisms, support, services, and
remedies.
”
[2]
Transcript,
Vol. 10 at p901, line 25 – p905, line 29.
[3]
Transcript,
Vol. 10 at p910, lines 5-16.
[4]
Record,
Transcript, Vol. 10 at p905, lines.
[5]
Transcript,
Vol. 10 at p882, lines 3-6.
[6]
Transcript
at p882, lines 1-30.
[7]
Transcript,
Vol. 6 at p452
[8]
Transcript,
Vol 13 at p1132-1133
[9]
Transcript,
Vol. 13 at p1107 line 21- p1108, line 21.
[10]
Transcript,
Vol 13 at lines 13-19.
[11]
Transcript,
Vol 13 at p1122, lines 9-28.
[12]
Act
66 of 1995 as amended.
[13]
Award
at paras 112-128. In the original award, each sentence is contained
in separate paragraphs. In this extract, I have arranged
these
sentences into paragraphs that appear to express a single idea. In
doing so, I have not changed the order of the sentences.
[14]
Award
at para 133.
[15]
Award
at paras 135-140.
[16]
Award
at paras 147-150
[17]
[2013]
11 BLLR 1074 (SCA)
[18]
Herholdt
at
para 25.
[19]
[2015]
1 BLLR 50 (LAC).
[20]
Mofokeng
at
para 33.
[21]
Mofokeng
at
para 32.
[22]
Palluci
Home Depot (Pty) Ltd v Herskowitz and others
[2015]
5 BLLR 484
(LAC) at para 56
[23]
(2016)
37 ILJ 923 (LC).
[24]
See:
National
Union of Mineworkers and Another v Samancor Limited (Tubatse
Ferrochrome) and Others
(2011) 32 ILJ 1618 (SCA)
at
para 5.
[25]
Duncanmec
(Pty) Ltd v Gaylard NO and Others
[2018]
12 BLLR 1137
(CC) at para 50
[26]
2003
(1) SA 11
(SCA) at para 5.
[27]
(2011)
32 ILJ 723 (LC).
[28]
The
LAC endorsed this in
SA
Breweries (Pty) Ltd v Hansen and Others
(2017) 38 ILJ 1766 (LAC) at para 16.
[29]
(2014)
35 ILJ 2295 (LC) at para 58.
[30]
Supra
n
24.
[31]
Sexual Harassment Policy,
Record,
Vol 2at p118. It reads: “
Complaints
have to be lodged within a two (2) month period from the date of the
incident to the alleged victim’s manager
/ an appropriate
manager and the Business Unit HR Manager.
”
[32]
Sexual
Harassment Policy, Record, Vol 2 at p124, lines 10-13: “
Complaints
should be raised as soon as possible after an incident has
occurred.  Any complaint in respect of an incident
that is more
than 2 months old will be regarded as out of time.
”
[33]
See
n 3
supra
.
[34]
(1999) 10 ILJ 755 (IC)
[35]
J
v M Ltd at 758 A-E.  Although this logic requires no further
endorsement for validity, see also:
Media
24 Limited and Another v Grobler
[2005] 3 All SA 297
(SCA) at para 67, and Gaga v Anglo Platinum
Limited and Others [2012] 3 BLLR 285 (LAC)
[36]
Transcript
Vol.11 at p973.
[37]
See:
National
Union of Mineworkers v CCMA and Others
(2013)
34 ILJ 945 (LC) at para 37.
[38]
(2018)
39 ILJ 1059 (LC) at para 15.
[39]
(2018)
39 ILJ 1719 (LAC) at para 50.
[40]
1999
(10) BCLR 1059
(CC).
[41]
1980
(3) SA 301
(A) at 308B-D.
[42]
SARFU
at
para 79.
[43]
This
arises from para 132 and 133 of the Award, where the Commissioner
says: “I would have expected Ms S to have been brutally
honest
with the applicant and said: I am not at ease with your antics or
stop touching me inappropriately and I don’t relish
it.”
[44]
This
arises from the Award at para 128, where the Commissioner says: “I
find that Ms S was not so afraid that she could
not raise the alarm
on or immediately after 2 August 2016.”
[45]
This
arises from the finding at para 130, where the Commissioner says:
“Ms S took a route which gave the applicant a wrong
impression
in that she spoke about the rumour making the rounds regarding the
fact that they were caught sleeping together.”
[46]
This
arises from paragraphs 125-127 of the Award, where the Commissioner
says: “Ms S claimed to have raised the issue of
the whatsapp
in the hearing though it would have been imperative to raise that
issue before me. I am wary that it emerged only
through
cross-examination.  I therefore draw a negative inference that
she wanted to
underplay
her part in the process.
”
[47]
Record,
Vol 3 at p196.
[48]
Transcript,
Vol. 6 at p464, at lines 1-10 and 20-25