About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 309
|

|

Adcock Ingram Healthcare Proprietary Limited v GIWUSA obo Khumalo and Others (JR2134/17) [2019] ZALCJHB 309; [2020] 2 BLLR 162 (LC) (7 November 2019)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no: JR 2134/17
In
the matter between
ADCOCK INGRAM
HEALTHCARE
PROPRIETARY
LIMITED

Applicant
And
GIWUSA
OBO BONGANI KHUMALO

First Respondent
NATIONAL BARGAINING
COUNCIL OF
THE
CHEMICAL INDUSTRY

Second Respondent
COMMISSIONER
JOSEPH MPHAPHULI

Third Respondent
Heard:
7 August 2019
Delivered:
7 November 2019
JUDGMENT
MAHOSI. J
Introduction
[1]
This is an application brought by the applicant in terms of section
145 of the
Labour
Relations Act
[1]
(LRA)
to review and set aside the arbitration award (award) issued by the
third respondent (arbitrator) dated 18 August 2017, under
case number
GPCHEM 162-16/17 under the auspices of the second respondent (
NBCCI)
.
In his award, the arbitrator found that the dismissal of the first
respondent’s member, Mr Khumalo, was substantively unfair
and
ordered Adcock to reinstate him retrospectively.
[2]
The applicant seeks that the award be replaced with an order that Mr
Khumalo’s
dismissal was substantively fair, alternatively that
the matter be referred back to the NBCCI to heard
de
novo
before an arbitrator other than the third respondent.
[3]
The key question is whether the arbitrator’s decision is one
that a reasonable
decision-maker could not reach.
[2]
Background
[4]
The applicant operates a division that it refers to as the
Prescription Division.
This division manufactures ARV’s and
certain prescription medication at its Wadeville premises. For
housekeeping services,
the applicant makes use of a number of service
providers including Bidvest Prestige Cleaning Services (Bidvest).
[5]
Mr Bongani Khumalo (Mr Khumalo) was appointed by the applicant in
October 2010 as
its Quality Control Sampler in the Prescription
Division at its Wadeville Operations. In January 2015, Ms N[…]
B[…]
S[…] (Ms S[…]) was appointed by Bidvest to
provide housekeeping services to the applicant’s Wadeville
Operations.
[6]
In November 2016, Bidvest informed the
applicant’s management that it had received complaints of
sexual harassment from its
employees placed at Wadeville Operations.
In particular, the complaints were that certain employees of the
applicant who were based
at the Wadeville Operations were sexually
harassing certain of its employees.
[7]
Following the complaints brought forward by Bidvest, the internal
auditors of Adcock’s
Ingram Group Internal Audit Services were
instructed to conduct an investigation, which was done. In conducting
the investigation,
various Bidvest employees were interviewed and
three of the applicant’s employees, one being Mr Khumalo, were
identified
as the alleged perpetrators. The investigation in respect
of Mr Khumalo revealed that he allegedly sexually harassed Ms S[…].

A written statement was also obtained from Ms S[…].
[8]
The applicant then placed three of its employees,
including Mr Khumalo, on paid suspension. Subsequently, the applicant
was satisfied that there was sufficient
evidence of sexual harassment against Mr Khumalo and subjected him to
a disciplinary hearing.
Mr Khumalo was found guilty at the
disciplinary hearing and dismissed
on 29
November 2017.
[9]
Dissatisfied with his dismissal, GIWUSA, his trade union referred an
unfair dismissal
dispute to the NBCCI for conciliation on his behalf.
However, the parties failed to resolve
the dispute during conciliation.
The
dispute was then referred to arbitration that was heard before the
arbitrator on 7 August 2017. Subsequently, the arbitrator
issued the
award that is the subject matter of this application.
The arbitration
[10]
The issue before the arbitrator was whether Mr
Khumalo’s dismissal was   substantively and procedurally
fair. The applicant
led evidence through one
witness, Ms. S[…] and Mr Khumalo testified in support of his
case.
[11]
Ms S[…] testified
, inter alia
, that when she began
rendering services at the
Wadeville Operations,
she and Mr Khumalo had always been friendly
towards
each other
and they would greet each other with a hug. During
September 2016, the hugs began to feel too intimate and she advised
Mr Khumalo
to stop hugging
her because she did not feel comfortable. On several occasions
Ms
Si[…] had     pushed Mr Khumalo away and walked
away from him, confirming that the hugs   were unwelcomed.
[12]
Under cross-examination, Ms S[…] denied that she had requested
Mr Khumalo   to stop
hugging her because she had a boyfriend. Ms
S[…] further testified that     on one
occasion, Mr Khumalo had
explicitly stated that he wished to have
sexual intercourse with her, while getting nearer to her. It was at
this point that Ms
S[…] had pushed Mr Khumalo away from her
indicating that his conduct was

unwelcomed.
[13]
The next day, Mr Khumalo smacked Ms S[…] on her buttocks. In
response, Ms    S[…]
told Mr Khumalo that she was
not his wife. Mr Khumalo then told Ms
S[…] that he wanted her.
Ms S[…] testified that these
incidents of sexual harassment made her feel small and disrespected,
a result of which she
tried to
avoid Mr Khumalo as much as possible to limit their interactions and
from that
point, their relationship deteriorated significantly.
[14]
Ms. S[…] brought the sexual harassment complaint to her team
leader’s attention, who advised
her not to report it as it may
lead to her removal from her services at the Wadeville Operations
and/or losing her job with Bidvest.
In November 2016, Bidvest called
a meeting to advise employees that there may be certain employees who
will be removed from the
applicant. At this meeting, another employee
started to cry and stated that she knew she was going to be removed.
When asked why
she felt this way, the employee stated that it was
because she has been sexually harassed by the applicant’s
senior employee.
Upon being informed of this, Bidvest’s
management approached its employees situated at the Wadeville
Operations and requested
that they come forward if they had any
complaints of sexual harassment.
[15]
In realisation that she was not alone in experiencing sexual
harassment in the
workplace, Ms S[…]
informed a Bidvest Manager that Mr Khumalo had sexually

harassed her. Ms S[…] testified that she felt safe to inform
the manager at this

time because of the opportunity afforded by Bidvest to come forward
and she,   Ms S[…], was then assisted in producing
a
written statement.
[16]
Mr Khumalo testified,
inter alia
, that he used to greet Ms
S[…] by hugging her. In September 2016, Ms S[…] had
requested Mr Khumalo to stop hugging
her as she had a boyfriend who
works for the applicant and who was jealous. Mr Khumalo complied with
Ms S[…]’s request.
[17]
Mr Khumalo further testified that he had never inappropriately
touched Ms S[…] and he had not
tried to grab her private parts
and/or smack her buttocks. He does not have a wife but rather a
girlfriend, who is known to Ms
S[…] and therefore the incident
cannot be true. He and Ms S[…] continued to have a good
relationship; and he did
not know why Ms S[…] had reported
allegations of sexual harassment against him as they are friends.
Under cross-examination,
Mr Khumalo testified that he did not know
what Ms S[…] stood to gain by making false allegations against
him.
[18]
The arbitrator preferred Mr Khumalo’s version on the basis of
the findings that appear in his
award as follows:
‘
5.9
The fact that the respondent’s witness B[…] S[…]
was the only witness in the
respondent’s case invokes the
cautionary approach to her testimony.
5.10
I find it rather strange that the respondent did not call the team
leader and the manager to whom the
witness complained about the
applicant’s behaviour. In the second place the witness’s
colleague who was given the same
treatment, that is, intimate hugs
when it was her turn to shift was equally not called to testify.
5.11
It boggles the mind as to why the applicant had the courage to put
her job on the line, when all along
she has had reservations about
disclosing the harassment for fear of reprisals.
5.12
The fear did not prevent her from talking to the team leader and the
manager, if at all. There was
no evidence placed before me that this
indeed was the case.
5.13
It also makes little sense, if any, for the witness to raise the
matter with the manager in November
2016, if it is to be accepted
that the matter was raised when in fact the alleged harassment ceased
in September of the same year
already.
5.14
I find favour with the applicant’s version that the respondent
was a willing participant in the
hugging affair. That hugging ceased
in September and finally that the respondent's witness’ reason
for bringing an end to
the established practice was the coming of the
boyfriend in the picture.
5.15
It remains a mystery as to what motivated the respondent’s
witness to accuse the applicant of
such offence.
5.16
It was however not the applicant’s place to prove that the
dismissal was unfair. The respondent had
it all to do. The respondent
did not however discharge its onus to prove that the misconduct was
committed.
5.17
Compared to the respondent's witness’ version I found the
applicant's version to be more likely
for reasons herein above
illustrated.’
[19]
Resultantly, the arbitrator found that the applicant had failed to
prove that Mr Khumalo’s dismissal
was fair and ordered that Mr
Khumalo be reinstated retrospectively. Aggrieved by the arbitrator’s
award, the applicant launched
this application based on the grounds
that are dealt with hereunder.
Grounds of review
[20]
The applicant seeks to review the award on the basis that the
arbitrator misdirected himself in terms
of the nature of the enquiry
and consequently committed a number of gross irregularities in that
he failed to apply, alternatively
incorrectly applied the cautionary
rule of evidence; to resolve the conflicting versions of events as
testified by Ms S[…]
and Mr Khumalo and to provide any reasons
as to why he gave preference to the testimony of Mr Khumalo and
thereby rejecting Ms
S[…]’s. It was the applicant’s
further contention that the arbitrator took into account immaterial
and uncorroborated
evidence in coming to his conclusions. Lastly, the
applicant contended that the arbitrator was biased. It was in light
of the above
that the applicant argued that the arbitrator came to a
conclusion, which renders the award unreasonable.
The first respondent’s
case
[21]
In opposing this application, the first respondent defended the
conduct of the arbitrator and his award
on,
inter alia
, the
basis that he did not only properly apply the cautionary rule but
also conducted the arbitration in a manner that the commissioner

should consider the dispute, i.e. fairly and quickly and that he
further dealt with the substantial merits of the dispute with
the
minimum legal formalities. It was the first respondent’s
contention that the arbitrator did not decide the matter solely
based
on the cautionary rule
[22]
The first respondent’s contention was that the arbitrator
conducted the arbitration impartially
and that he did not engage in a
conduct that might reasonably give rise to a party forming a
perception of bias.
The
Test for review
[23]
The test laid down in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[3]
is
one of substantive reasonableness of the outcome or result of an
arbitration award, which is an outcome based enquiry
[4]
,
entailing a stringent test aimed at ensuring that arbitration awards
are not lightly interfered with.
[5]
[24]
In
Bestel
v Astral Operations Ltd and Others
[6]
the
Court stated as follows:
‘
It is important to
emphasise,
as is exemplified
from
Carephone
, and in
Schwartz
,
supra,
that
the ultimate principle upon which a review is based is justification
for the decision as opposed to it being considered to
be correct by
the reviewing court; that is whatever this Court might consider to be
a better decision is irrelevant to review proceedings
as opposed to
an appeal. Thus, great care must be taken to ensure that this
distinction, however difficult it is to always maintain,
is
respected.’
[25]
For the applicant to succeed with the review application, it must be
established that the commissioner’s
decision fell outside the
bounds of reasonableness based on all the material that was before
the commissioner, including for the
reasons not considered by the
commissioner.
[7]
Analysis
[26]
The misconduct that Mr Khumalo was charged with, found guilty of, and
dismissed for related to sexual
harassment against Ms S[…].
The Minister of Labour, on the advice of the Commission for
Employment Equity, in terms of section
54(1)(b) of the Employment
Equity Act
[8]
, issued the Code
of Good Practice: Sexual Harassment Cases (the Code) which was later
replaced by the Amended Code of Good Practice:
Sexual Harassment
Cases. Its objective is to eliminate sexual harassment in the
workplace and it provides appropriate procedures
to deal with sexual
harassment and prevent its recurrence.
[27]
The Code encourages and promotes the development and implementation
of policies and procedures that
will lead to the creation of
workplaces that are free of sexual harassment, where employers and
employees respect one another's
integrity and dignity, as well as
their privacy and their rights to equity in the workplace.
[28]
The Item 4 of the Amended Code of Good Practice: Sexual Harassment
Cases defines sexual harassment
as:
‘
Unwelcome
conduct of a sexual nature that it violates the rights of an employee
and constitutes a barrier to equity in the workplace,
taking into
account all the following factors:
4.1
whether their harassment is the prohibited grounds of sex and/or
gender and/or sexual orientation;
4.2
whether the sexual conduct was unwelcomed;
4.3
nature and extent of the sexual conduct;
4.4
impact of sexual conduct on the employee.’
[29]
In compliance with Item 7 of the Code, the applicant has adopted a
Sexual Harassment Policy that defines
sexual harassment as “unwanted
conduct of sexual nature.” It further states that sexual
attention becomes sexual harassment
if:
‘
(a)
The behaviour is persisted in, although a single incident of
harassment can constitute harassment; and or
(b)
The recipient has made it clear that the behaviour is considered
offensive; and/or
(c)
The perpetrator should have known behaviour is regarded as
unacceptable.’
[30]
The applicant took issue with the arbitrator’s application of
cautionary rule.
[35]
In
Satani
v Educational Labour Relations Council and Others
[9]
,
this
Court considered the applicability of the cautionary rule in labour
matters and stated as follows:
‘
[34]
… with regard to the “cautionary rule”, that rule
applies to criminal trials. As
the learned authors comment in
Labour
Law through the Cases
:
“
The
cautionary
rule relating to the
evaluation of
evidence
of a single witness in criminal matters,
that
require
s
the
evidence to be “clear and satisfactory in every
respect” before it could be relied on, it was f
oun
d
i
n
Northam
Platinum Mines v Shai NO
,
h
as
evolved significantly
.
An
arbitrator
should assess “the probabilities of the
respective versions and, if necessary, make credibility findings to
arrive at an outcome”.
In
casu
it was held that
the
“commissioner took the absence of independent corroboration of
the employer’s witnesses’ versions to have
been fatal,
instead of applying a more nuanced evaluation of the evidence in
keeping with the applicable legal principles’.
[35]
Barely two weeks after the judgment in
Naraindath
the
Labour Appeal Court handed down judgment in
Blyvooruitzicht
Gold Mining Co Ltd v Pretorius.
That Court pointed out that, in
criminal cases, the evidence of a single witness is only treated with
caution if it is contested
by an accused. It did not deal with the
applicability of that principle to arbitrations in any further
detail.
[36]
In
Blue Ribbon Bakeries v Naicker
the court noted that the
commissioner in that case “fail[ed] to apply the cautionary
rules of evidence to the testimony of
the first respondent who was a
single witness”; but that was in the context where the
commissioner failed altogether to make
any credibility findings. In
the case before me, the commissioner did make a credibility finding
against the employee and in favour
of the learner. In that context,
the failure to apply the cautionary rule applicable to criminal cases
does not, in my view, amount
to a reviewable irregularity. To hold
otherwise would be contrary to the stated aims of the LRA to provide
a quick, informal and
non-legalistic method of dispute resolution.’
[Footnotes omitted]
[
31]
The issue before the commissioner was whether the applicant committed
the misconduct he was charged
with. I agree with GIWUSA that the
reading of the award does not support the contention that the
arbitrator based his decision
solely on the application of cautionary
rule.
[32]
It
is apparent from the reading of the award and the record that Ms S[…]
complained of three forms of sexual harassment,
namely: unwelcome
hugs that became intimate, Mr Khumalo’s utterance that he
wanted to touch her private parts and the smacking
of her buttocks.
The issue before the arbitrator was therefore, whether Mr Khumalo’s
dismissal was fair on not. To answer
the question, the commissioner
had to determine whether Mr Khumalo committed the offences he was
charged with. In his award, the
arbitrator recorded that Mr Khumalo
denied ever using inappropriate language when addressing Ms S[…],
touching her inappropriately
or making unwelcome advances.
In
determining the issue, the commissioner was faced with two mutually
destructive versions. In
Stellenbosch
Farmers' Winery Group Ltd and Another v Martell & Cie SA and
Others
[10]
the
Court had the following to say in regard to the way in which a
decision-maker has to make a finding on disputed issues:
‘
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.’
[33]
The reading of the award evidences that the arbitrator assessed the
evidence of all the witnesses and
preferred Mr Khumalo’s
version. The applicant could not sway the arbitrator to favour its
version on the probabilities. It
is not for this Court to interfere
with the arbitrator’s reasoning for choosing one version over
another when there were
conflicting versions unless the decision is
so implausible as to render it unreasonable. The arbitrator had the
advantage of being
present at the proceedings, saw the conduct of the
witnesses and then made a decision based on the probabilities. This
approach
was confirmed by the Court in
Moodley
v Illovo Gledhow and Others
[11]
as
follows:
‘
Sitting
as I do as a review judge, I fail to understand, in this case, how I
could decide to set aside an award given by an arbitrator
who sat at
the hearing,  observed the witnesses, their demeanour and the
manner in which they came across … I should
be extremely
reluctant to upset the findings of the arbitrator unless I am
persuaded that her approach to the evidence, and her
assessment
thereof, was so glaringly out of kilter with her functions as an
arbitrator that her findings can only be considered
to be so grossly
irregular as to warrant interference from this court.’
[34]
It is my view that the arbitrator was reasonable in his assessment of
the evidence before him
and reached a conclusion that any reasonable
decision maker could have reached on the issue of the probabilities
of the versions
placed   before him.
[35]
The
applicant’s further contention is that the arbitrator,
inter
alia,
committed
gross irregularities in that he interrupted and intimidated Ms S[…];
aksed Mr Khumalo leading questions; and made
sexist statements.
In
this regard, I find the quote from
Head
of the Department of Education v Mofokeng and Others
[12]
apposite:
‘
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 delimitation 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 enquiry 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.
’
[Footnotes omitted]
[36]
In
Naraindath
v Commission for Conciliation, Mediation and Arbitration and
Others
[13]
the Labour Court said the following regarding what is required of the
arbitrator in conducting arbitration proceedings
:
‘
[27]
In my view it is perfectly clear in these circumstances
that a complaint that a commissioner has conducted proceedings
in a
way which differs from the way in which the same dispute would be
dealt with before a court of law cannot as such succeed.
It is only
where the person seeking to challenge the commissioner's award can
point to specific unfairness arising from that action
by the
commissioner that a proper ground for review is established. A
failure to conduct arbitration proceedings in a fair manner,
where
that has the effect that one of the parties does not receive a fair
hearing of their case, will almost inevitably mean either
that the
commissioner has committed misconduct in relation to his or her
duties as an arbitrator or that the commissioner has committed
a
gross irregularity in
the
conduct of the arbitration
proceedings. (See sections 145(2)(a)(i) and (ii) of the LRA ;
McKenzie, The Law of building and Engineering
Contracts and
Arbitration, 5th Ed. pp l88-189).’
[37]
I have had the benefit of reading the pleadings and the record and I
do not find merit in the
complaints raised against the arbitrator and
the award. As demonstrable from the record, the arbitrator introduced
the first respondent’s
representative, Mr Nyembezi, as very
famous. In fact he indicated that Ms S[…] was the only person
who did not know him.
At the end of the hearing when the arbitrator,
Nyembezi and Mogale were discusing the date for the filing of the
closing arguments,
Nyembezi mentioned that he was going away on the
Friday. The arbitrator responded by asking if he was going to
Parliament. I do
not agree with the applicant’s contention that
these statements created a reasonable apprehension of bias.
[38]
It is correct that the record is replete with the arbitrator
interrupting the witness and Mogale
during chief examination. These
incidents were submitted by the applicant in its supplementary
affidavit and I do not intend burdening
this judgment with the
quotations thereof. There is no doubt that the arbitrator adopted an
inquisitorial approach to the enquiry.
However, it is my view that
this did not have the effect of denying the applicant of a fair trial
or creating an inference that
he had already made his mind up without
having full regard to the evidence before him.
[39]
The applicant’s further contention was that arbitrator was
biased. The basis of this contention
was that the arbitrator asked
Mr Khumalo during his re-  examination whether the relationship
he had with Ms S[…] was
a cordial working relationship and
whether the hugs were brotherly and sisterly. There is  no merit
to this contention as
both Mr Khumalo and Ms S[…] admitted
that they had a
hugging relationship, which
speaks to having a cordial working relationship. There is further no
merit to the applicant’s
contention that
the
arbitrator’s comments during the arbitration proceedings and
his findings relating   to Ms S[…]’s boyfriend

demonstrate latent gender bias.
Conclusion
[40]
In light of the above, the applicant failed to make out a case that
the arbitrator committed
gross irregularities.
T
he
arbitrator did not fail to engage in matters, which required his
decision-making in order to resolve the dispute between the
parties.
He further did not disregard material evidence nor conducted the
arbitration proceedings in a manner that was procedurally
irregular.
Furthermore, he did not make statements that were sexist in nature.
It is my view that the arbitrator’s
decision is one that a reasonable decision-maker could reach.
Considering the test for
review and case law cited herein above, the
applicant has failed to pass the threshold to have the award reviewed
and set aside
and his application falls to be dismissed.
Costs
[41]
With regards to costs, I am of the opinion that the requirements of
law and fairness dictate that there
should be no order as to costs.
[42]
In the premise, I make the following order:
Order
1.
The application to review and set aside arbitration award
issued
by the third respondent dated 18 August 2017 under case number GPCHEM
162-16/17
is dismissed.
2.
There is no order as to costs.
______________________
D
Mahosi
Judge
of the Labour Court of South Africa
Appearances
:
For the Applicant:
Advocate
MJ Van As
Instructed by:

Werksmans
Attorneys
For
the Respondent:
Mr. M Bayi of Bayi Attorneys
[1]
Act
66 of 1995 as amended.
[2]
See:
Sidumo
and Another v Rustenburg Platinum Mine Ltd and Others
[2007] 12 BLLR 1097 (CC).
[3]
[2007]
12 BLLR 1097 (CC).
[4]
Ellerine
Holdings Ltd v Commission for Conciliation, Mediation and
Arbitration and others
(2008) 29
ILJ
2899
(LAC) at 2906H-I.
[5]
Fidelity
Cash Management Services v CCMA and Others
[2008]
3 BLLR 197
(LAC) at para 100;
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curiae)
[2013] 11 BLLR 1074
(SCA) at para 13.
[6]
[2011]
2 BLLR 129
(LAC) at para 18.
[7]
See:
Fidelity
Cash Management Services v CCMA and Others
[2008]
3 BLLR 197
(LAC) at para 103.
[8]
Act
55 of 1998.
[9]
(C272/2014).
[10]
(427/01)
[2002] ZASCA 98
(6 September 2002).
[11]
(2004)
25 ILJ 1462 (LC)
.
[12]
[2015]
1 BLLR 50
(LAC) at para 33.
[13]
(2000) 6 BLLR 716
(LC).