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[2025] ZALCCT 25
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Walker v Commission for Conciliation Mediation and Arbitration and Others (C179/2023) [2025] ZALCCT 25 (14 May 2025)
THE
LABOUR COURT OF SOUTH AFRICA
AT CAPE TOWN
Of interest to other
judges
case
no: C 179/2023
In
the matter between:
JARED
WALKER
Applicant
and
COMMISSION FOR
CONCILIATION,
First Respondent
MEDIATION AND
ARBITRATION
SHAHIDA MOHAMED
(COMMISSIONER)
Second
Respondent
WNS GLOBAL SERVICES
(PTY) LTD
Third Respondent
Heard
:
30 April 2024
Delivered
:
14 May 2025
Summary:
(Review – unfair discrimination
on medical grounds – no differential treatment –
insufficient evidence for any
reasonable arbitrator to conclude the
employer could be held liable for harassment based on medical grounds
amounting to unfair
discrimination – application dismissed)
JUDGMENT
LAGRANGE, J
Nature
of the application
[1]
This is an opposed review application. The applicant, Mr J Walker
(‘Walker’) has applied to review an award in which
the
arbitrator found that he was not discriminated against on ground of
his medical condition. As she found that he was not discriminated
against on that basis, she did not need to go further to decide if
the alleged discrimination was unfair.
[2]
Walker represented himself and drafted his own application papers and
the submissions which he only presented in court when the
application
was heard. In his written submissions, he expands on some of the
factual allegations made in the course of evidence
during the
arbitration. As the court can only consider what was placed before
the arbitrator in the way of evidence, any additional
factual
averments made in Walker’s written submission cannot be
considered.
[3]
The court raised a number of issues about the state of the record,
which was lacking any transcription of the evidence of the employer’s
witnesses and the bundle of documents used in the arbitration.
Walker’s explanation was that he did not even look to see
if
the bundle of documents was part of the record lodged with the
registrar, nor did he examine the transcript to see if it was
complete, which is quite an astonishing omission even for a lay
person. It was explained at some length to Walker that given the
deficiency in the record, he needed to consider if he wished to
supplement it with the missing portions or argue his review based
on
what he had placed before the court. He was cautioned that if he
chose to proceed, without supplementing the record, he could
not
refer to evidence which was not in the transcript of oral testimony
or, at the very least, was mentioned in the arbitrator’s
award
and not disputed by either party. He chose to proceed rather than
requesting a postponement to supplement the record. The
employer, the
third respondent (‘WNS’), was amenable for the matter to
be argued on this basis despite the transcript
and documentation
being incomplete.
Summary background
[4]
What follows is a brief account of the available evidence pertaining
to the review.
[5]
At the time of the events giving rise to Walker’s complaint in
September 2022 he was a call centre agent, having commenced
working
for WNS in August 2016. At the time he was working from home on
account of his medical condition. He suffers from depression
and
anxiety attacks and was taking medication for his condition.
[6]
He had provided a doctor’s certificate which recommended he
worked at home. He suspected the original certificate was
deliberately
mislaid by WBS and on 7 September 2022 he obtained
another. He claimed the firm harassed him by telling him that the
doctor’s
note was not sufficient. The HR business partner, Ms S
Roodt (‘Roodt’), claimed that the doctor’s letter
recommendation
merely related what Walker had told him but did not
motivate why his condition was caused by his work. A team leader
allegedly
phoned him and told him they did not care about his
condition and accused him of insubordination. His sister, Ms T Walker
(‘Ms
Walker’), who also worked at home with him,
confirmed overhearing a call from someone who told Walker that they
needed him
to come in to work and he had to go to the doctor again
because he was needed back at work. She did not hear all the
conversation
but did hear the other person saying that Walker could
not keep talking about his medical condition and that they were not
concerned
about his medical condition. Walker had complained about
the call, and, on his own version, his operations manager had called
him
about his complaint. However, in his evidence he did not
elaborate on the upshot of that discussion. He agreed he was already
working
from home at that stage.
[7]
After the disciplinary enquiry had concluded he submitted another
medical certificate on 7 November. He had been permitted to work
from
home since 1 November, while he was adjusting to new medication. At
the time of the arbitration he was still working at home,
despite the
firm wanting everyone working at the office. He complained that he
had suffered an angina attack in November which,
based on his own
research, he attributed to the stress he had been subjected to by
WNS. He firmly believed, and still does, that
he had been subjected
to the disciplinary enquiry as a ruse to work him out of the firm
because of his medical condition. It was
only after the failed
disciplinary process that the firm took his condition seriously.
[8]
During September, WBS was conducting an investigation into suspected
instances of call avoidance by a number of operators who worked
from
home. Walker was one of them. He was called into the office on 26
September to respond to allegations arising from the investigation.
He assumed he was called in to discuss his medical condition, only to
find himself confronted with an allegation that he was avoiding
calls
He suffered a panic attack and was sent home. It was common cause he
had a panic attack. It was a matter of dispute if the
investigation
continued or whether it resumed the next day. In any event, after the
meeting regarding suspected call avoidance
was held, he was
suspended, pending his enquiry which was held on 20 October 2022. In
all, seventeen operators working from home
were investigated for
alleged call avoidance. Roodt testified that, when call avoidance was
suspected, the company could not exempt
employees from disciplinary
processes because they were suffering from certain conditions.
[9]
Walker did not dispute that, at the end of the investigation meeting,
when he had motivated why he should not be suspended during
the
disciplinary enquiry he had said that he had made an honest mistake.
Walker merely stated that he was still under duress at
the time and
could not figure out how he could be accused of call avoidance.
[10]
Although he was eventually afforded the opportunity his laptop for
the purpose of preparing for his enquiry, he declined to attend
the
office for to do that, because he did not see the point if someone
was looking over his shoulder while he did that. He conceded
that he
had been granted two or three days to come to the office to prepare
for the case and that he had chosen someone he wished
to attend the
enquiry with him.
[11]
Walker was acquitted of the charge of call avoidance, because it was
discovered that the call data on which the firm
was relying, was the
result of a system error and not on account of not taking calls. In
his argument he claimed that when he was
interviewed during the
investigation stage, he had called in the IT consultant to explain
that it could be a system error. However,
despite this and the
undisputed evidence that he consistently met or exceeded targets and
achieved high performance ratings, the
employer went ahead with the
disciplinary enquiry nonetheless. In his evidence, Walker did claim
that he raised the issue that
system errors that were the origin of
the call data indicating call avoidance during the investigation
prior to his suspension.
[12]
He called a former IT support associate, Mr M Isaacs (‘Isaacs’)
to give evidence on his behalf at the arbitration.
His evidence
confirmed that in Walker’s case as in others it was a system
error which had created the impression that operators
were avoiding
calls. However, he did not remember Walker calling him before the
investigation meeting. Isaacs also testified that
when he discussed
the investigation process with management and they investigated it,
it turned out that it was tenured agents
who were being ‘targeted’
by the investigation. Under cross-examination he agreed this did not
make sense but blamed
new operations personnel for this strategy. He
claimed he told management the evidence against Walker was inaccurate
and in answer
to a leading question from him, confirmed management
was adamant they wanted to get rid of Walker. He mentioned that other
agents,
aside from Walker, were also experiencing stress as a result
of the system issues. When he was pointedly asked in re-examination
by Walker whether he felt WNS took account of his medical condition
or that management was using call avoidance as a plot to aggravate
his anxiety and get him fired, Isaacs simply answered that all they
were concerned with was call avoidance and nothing else.
The award
[13]
The salient findings of the arbitrator may be summarised as follows.
[14]
She found that Walker’s status as an employee working at home
had not changed , which led her to believe WNS was
accommodating his
medical condition. Had the firm wished, it could have charged him for
insubordination for not returning to the
office when instructed to do
so.
[15]
The documentary evidence showed that that the investigation took
place on 27 September 2022 and not the previous day.
On the question
whether he had presented exculpatory evidence to the investigators to
avoid suspension, did not detract from the
employer’s right to
do its investigation and take the necessary steps.
[16]
WNS had in fact found him not guilty of call avoidance and the
chairperson of the enquiry had recommended his return
to the office.
[17]
It was understandable that any employee subject to an investigation,
suspension and an enquiry would be anxious. However,
the angina
attack he suffered two weeks after the enquiry could not be assumed
to be a result of the firm’s actions, in the
absence of
evidence of a medical expert.
[18]
In a claim of unfair discrimination, the first question to answer was
whether an employee was treated less favourably
than similarly
situated employees. In this instance, Walker was subject to the same
processes as other employees who were suspected
of possible call
avoidance. Hence there was no act of discrimination.
Grounds of review
[19]
Walker raised four grounds of review, namely:
19.1 The arbitrator
only considered his claim of discrimination of unfair discrimination
on medical grounds and ignored his
other claims of “unfair
labour practice, … harassment, workplace bullying,
victimisation and false accusations.”
19.2 The arbitrator
dismissed his claim of medical discrimination, despite the evidence
of himself and his witnesses.
19.3 The arbitrator
took the WNS’s side even though one of its witnesses, Adre
Gallant ('Ms Gallant'), "lied"
and "dodged questions".
19.4 The outcome of
the arbitration was pre-determined as the Commissioner seemed to be
biased towards WNS, disregarded his
evidence, was sarcastic, and
believed WNS’s word on everything.
[20]
Having explained the court’s difficulty in not having the
transcript of Ms Gallant’s evidence before it,
given Walker’s
decision to proceed with the application in spite of the deficiencies
in the record, he accepted that he could
not proceed with third
ground of review. It needs to be mentioned that the fact that a
witness might have lied and being evasive,
without more explanation,
is in any case not sufficient reason to set aside an award on review.
[21]
The second ground is phrased as if it was a ground of appeal, but
given Walker’s lack of expertise, I will assume
in his favour
that his contention amounts to a claim that no reasonable arbitrator
could have found he had not proven he was subject
to unfair
discrimination on medical grounds.
[22]
The fourth ground of review is essentially a sweeping claim of bias
lacking any particularity, except in relation to
the allegation that
the arbitrator was sarcastic.
[23]
I will deal with the fourth ground first, except in so far as he
claims that the arbitrator disregarded the evidence
he led, which
will be dealt with when considering his second ground of review. His
remaining contention regarding bias was that
the arbitrator was
sarcastic. He did not specify the factual detail underlying this
until he presented his argument. He explained,
and apologised, that
he was actually referring to the arbitrator allowing Roodt, who was
the firm’s representative in the
arbitration, to ask his
sister, after she had expressed her view on his medical condition,
“
Is that still your medical opinion?”
[24]
What in fact happened, is that Roodt had asked Ms Walker, based on an
answer she gave to her brother in examination-in-chief,
whether it
was her opinion that the stress he had been caused by the call
avoidance episode is what had caused his anxiety attack
and angina
condition. When Ms Walker reaffirmed that was her opinion, Roodt
pointedly asked “
So in your medical opinion, that is what
caused him anxiety?”
Ms Walker immediately addressed the
innuendo in the question, by stating it was her personal opinion
based on living with her brother,
and that she was not a medical
practitioner so could not offer a medical opinion. In principle,
Roodt was perfectly entitled to
challenge the witness’s ability
to give a medical assessment of her brother’s condition, though
she might have done
so without the sarcastic spin. Ms Walker capably
deflected the barb in the question by making it clear she was not
pretending to
give expert medical opinion. The arbitrator might have
cautioned Roodt about the way she asked the question, but she did not
continue
to question the witness in that vein. I see nothing improper
about the arbitrator deciding not to comment immediately rather than
waiting to see if Roodt persisted in that manner. The arbitrator’s
conduct was not manifestation of bias on her part and
does not
provide a basis for setting aside the award.
[25]
Turning to the second ground, the question on review is whether no
reasonable arbitrator could have decided there was
no discrimination
on medical grounds? The arbitrator dealt with the issue after setting
out both parties’ evidence. She began
by asking if he had
suffered adverse treatment by the company and concluded that WNS had
in fact accommodated his medical condition
by allowing him to
continue to work from home. Although she might have begun her
analysis with whether he was treated any differently
from other
agents who might allegedly have been avoiding calls, if his medical
condition was acknowledged and accommodated, it
cast doubt on the
argument that the WNS was not prepared to tolerate his needs, if that
meant he could not work at the officer.
[26]
Turning to discrimination, she rightly focussed on a central pillar
of the case: was Walker treated differently from
others he compared
himself with? Quite reasonably she concluded that all the agents who
were possibly responsible for avoiding
calls were treated in the same
way. They were all subject to an investigation and a disciplinary
enquiry. She acknowledges that
this would have been a stressful
process, even if one was not a person with Walker’s condition.
She reasoned that it would
not have been fair to exempt Walker from
the process on account of his condition as the employer was entitled
to take disciplinary
measures against him as in the case of everyone
else. She notes that he was acquitted, which was at odds with an
intention to use
the enquiry as a way to get rid of him. Walker chose
to view the outcome of the enquiry as an unsuccessful attempt to use
a trumped-up
charge to get rid of him. On the evidence, it is equally
plausible to draw the inference that WNS simply accepted that he was
not
guilty and therefore there was no reason to impose any sanction
on him.
[27]
Part of Walker’s case was that he ought not to have been
subjected to the disciplinary process at all because he
explained
that the apparent failure to answer calls was owing to a system error
during the investigation phase. The arbitrator
noted that he had
conceded that, in the investigation meeting, he had stated he had
made an honest mistake. She also considered
whether the company was
not entitled to refer the matter to a formal enquiry because he
provided evidence which he claimed was
exculpatory during the
investigation. I am unaware of any principle that precludes an
employer from proceeding with a disciplinary
enquiry, if it is aware
that the employee might have a legitimate defence to a charge. The
enquiry remains an appropriate forum
to determine whether or not that
is the case. The arbitrator’s reasoning in this regard is not
unjustified.
[28]
Considering the preceding discussion, I am not persuaded that no
reasonable arbitrator could have found that Walker was
not unfairly
discriminated against in relation to the holding of an investigation,
his suspension and disciplinary enquiry because
he had a medical
condition. This addresses the second ground and the remainder of the
fourth ground.
[29]
The first ground is concerned with whether the arbitrator curtailed
the scope of the claim he had referred to arbitration.
The record
does not contain the form in which he referred his dispute to
arbitration, but it is common cause that he listed these
issues:
unfair labour practice, discrimination, harassment, workplace
bullying, victimisation and false accusations.”
[30]
When he explained his claim he said that when he filled out the
arbitration form, “…
it was for discrimination. I put
here discrimination, unfair labour practice and bullying and
victimisation. So that was what it
was all falling under.”
The most plausible interpretation of this is that he meant all these
issues were part of his claim of discrimination.
[31]
He did not
specifically identify what he regarded as bullying in the workplace,
but he did mention being harassed to obtain further
medical
certificates and how a team leader phoned him and told him that
everybody had problems and the firm did not care about
his medical
condition and he would be guilty of insubordination if he did not
return to work. That is the only allegation he made
that might
conceivably be described as an instance of bullying which can be
construed as a form of harassment
[1]
.
As to what he was thinking of in referring to an unfair labour
practice, was never made clear. Nor did he distinctly identify
what
he was referring to as victimisation, which in a legal sense is
normally associated with prejudicial conduct by an employer
against
an employee for exercising employee rights such as provided for in s
51 of the EEA. He never made out a claim that he was
being prejudiced
by his employer for the sole reason he was exercising some right.
[32]
He stated that the harassment began when he was phoned by the team
leader who told him they did not care about his medical
condition,
his doctor’s recommendation that he work at home was not good
enough, everyone had problems and accusing him of
insubordination. He
mentioned it again when the arbitrator asked him to summarise his
case of discrimination. Clearly, Walker believed
that the team
leader’s conduct was an act of harassment or bullying related
to his medical condition. He also saw it as one
component of a
comprehensive plot to remove him on account of his health, which
culminated in the disciplinary enquiry.
[33]
In light of
the way Walker conceived all of the employer’s conduct as a
broad conspiracy It is understandable that the arbitrator
focussed on
the main claim of differential treatment, which he identified as the
culmination of its plan to rid itself of him.
To the extent that
Walker expected her to deal with the harassment as a separate claim
of discrimination, it is clear she failed
to do that. She did not
consider whether the conduct of the team leader, which did not
concern differential treatment, was a form
of harassment amounting to
unfair discrimination under s 6(3) of the Employment Equity Act, 55
of 1998 (‘the EEA’).
Had she done so, the next issue is
whether, a reasonable arbitrator could still have found that, even if
the alleged harassment
as a form of unfair discrimination was
considered, it would not have resulted in a different outcome
[2]
?
For Walker, as the applicant in the review, on the test articulated
first in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[3]
he needed to show that no reasonable arbitrator could have concluded
there was no discrimination based on medical grounds, taking
into the
alleged harassment by the team leader as well.
[34]
To succeed in a claim based on the alleged unfair discriminatory
conduct of an employee, it is not enough to prove that
an employee
committed the act of unfair discrimination. To hold an employer
liable for an act of harassment by an employee, the
following must be
established in terms of s 60 of the EEA:
60
Liability of employers
(1) If it is alleged that
an employee, while at work, contravened a provision of this Act, or
engaged in any conduct that, if engaged
in by that employee's
employer, would constitute a contravention of a provision of this
Act, the alleged conduct must immediately
be brought to the attention
of the employer.
(2) The employer must
consult all relevant parties and must take the necessary steps to
eliminate the alleged conduct and comply
with the provisions of this
Act.
(3) If the employer fails
to take the necessary steps referred to in subsection 2, and it is
proved that the employee has contravened
the relevant provision, the
employer must be deemed also to have contravened that provision.
(4) Despite subsection
(3), an employer is not liable for the conduct of an employee if that
employer is able to prove that it did
all that was reasonably
practicable to ensure that the employee would not act in
contravention of this Act.”
(emphasis added)
[35]
Assuming for the sake of argument, but without deciding the question,
that what the team leader said to Walker in the
phone conversation,
did amount to harassment under s 6(3) of the EEA, was there enough
evidence before the arbitrator, which would
have necessitated her
finding WNS liable under s 60? There was some reference to the fact
that Walker had complained about the
team leader’s conduct and
that Walker had been phoned by a manager about his complaint, but
there is no evidence about what
transpired thereafter. Walker did not
allege that WNS had not taken any steps to prevent such conduct
recurring. This was not part
of his witnesses’ evidence, nor
does anything on the available record indicate that he challenged the
employer’s witnesses
about any failure by WNS to take necessary
steps to prevent a recurrence. There is simply insufficient factual
material in the
slender record to conclude that no reasonable
arbitrator would have failed to find WNS liable for team leader’s
actions,
in terms of s 60 of the EEA.
[36]
Accordingly, even if the arbitrator had erred in omitting to consider
the alleged harassment by the team leader as a
distinct act of
discrimination, I am of the view persuaded that no reasonable
arbitrator would have failed to find WNS liable for
alleged unfair
discrimination relating to Walker’s medical condition on that
ground.
Conclusion
[37]
In light of the above reasoning, the review application must fail. I
appreciate that Walker is a layperson. and the parties
are still in
an employment relationship. Accordingly, it would not be appropriate
as a matter of law or fairness to make a cost
award against him.
Order
1.
The review application is dismissed.
2.
No order is made as to costs.
R Lagrange
Judge
of the Labour Court of South Africa
.
Appearances:
For the
Applicant:
In person
For the
Respondent:
M Cogger from Bowman Gilfillan Inc.
[1]
See
e.g, Clauses 4.5.2 and 4.7 of the Code of Good Practice on the
Prevention and elimination of Harassment in the Workplace,
Notice no
R 1890, GG 46056, dated 18 March 2022
[2]
Head of
Department of Education v Mofokeng & Others
(2015) 36
ILJ
2802 (LAC) at paragraphs 31 to 34.
[3]
CCT 85/06)
[2007] ZACC 22
;
[2007] 12 BLLR 1097
(CC);
2008 (2) SA 24
(CC) ; (2007) 28
ILJ
2405
(CC) at paragraph 110.