A.K v Right to Care NPC (JS597/21) [2023] ZALCJHB 205 (7 July 2023)
The Court found that the respondent acted promptly upon receiving the applicant's formal grievance, conducting an investigation and disciplinary enquiry that resulted in the dismissal of the perpetrator in accordance with its Sexual Harassment Code. The applicant's fixation on the absence of an investigation report...
Source-derived case information.
- Citation
- [2023] ZALCJHB 205
- Parties
- Applicant: A.K; Respondent: Right to Care NPC
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JS597/21
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Judgment and Order Delivered on 5 June 2023.
- Outcome
- Application for leave to appeal dismissed with no order as to costs.
- Judges
- Nkutha-Nkontwana
- Legal Topics
- Leave to Appeal, Sexual Harassment, Polygraph Testing, Expeditious Resolution of Disputes
Source-derived case record
Summary, issues, holding and outcome
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Parties
A.K
Applicant
Right to Care NPC
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment and Order Delivered on 5 June 2023.
Legal Issues
- 1 Whether the respondent dealt with the applicant's sexual harassment complaint expeditiously.
- 2 Whether the respondent's use of a polygraph test in investigating the complaint was permissible and fair.
- 3 Whether the absence of an investigation report and grievance hearing invalidated the process.
Ratio Decidendi
The Court found that the respondent acted promptly upon receiving the applicant's formal grievance, conducting an investigation and disciplinary enquiry that resulted in the dismissal of the perpetrator in accordance with its Sexual Harassment Code. The applicant's fixation on the absence of an investigation report and grievance hearing was misplaced, as the process was substantively fair and effective. The use of the polygraph test was not prohibited, was conducted with the applicant's consent, and did not prejudice her. The applicant failed to demonstrate any reasonable prospect of success on appeal, as required by section 17(1)(a) of the Superior Courts Act. The Court concluded that...
Court Disposition
Application for leave to appeal dismissed with no order as to costs.
Orders
- The application for leave to appeal is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
31 paragraphs
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: JS597/21
In the matter between
A.K Applicant and RIGHT TO CARE NPC Respondent
Decided: In Chambers
Delivered: 07 July 2023
JUDGMENT: LEAVE TO APPEAL
NKUTHA-NKONTWANA, J
[1] This is an application for leave to appeal the judgment and order of this Court handed down on 5 June 2023, on several grounds that are articulated in the notice of the application for leave to appeal. The respondent is opposing the application for leave to appeal.
[2] The applicant impugns the judgment on the following four grounds. Firstly, that I erred in finding that the process undertaken by the respondent dealt with the applicant’s complaint expeditiously. Secondly, that I erred in finding that the respondent took three months to deal with the applicant’s grievance.
2.1. The applicant obviously, misconstrued the nature of the inquiry and she regrettably persisted with these contentions in this application.
2.2. What is clear from the evidence is that as soon as the formal grievance was filed, the respondent commenced with the process of
investigation, which included confronting the perpetrator with the allegations and subsequent disciplinary enquiry.
2.3. The perpetrator was accordingly dismissed with the help of the applicant as a main witness and in line with the respondent’s Sexual Harassment Code.
2.4. The applicant is patently fixated on the ill-conceived impugn that there was no investigation report filed and no grievance hearing was held.
[3] When it comes to the third and fourth grounds, the impugn is that I erred in finding that the respondent cannot be faulted for using the polygraph test to investigate the complaint; and that the polygraph test was applied fairly.
3.1. The applicant is yet to point me to a decision that prohibits use of polygraph test when dealing with sexual harassment.
3.2. Nonetheless, the polygraph test played a major role in assisting the respondent to choose a process that was most effective and yielded the result of eliminating sexual harassment by dismissing the perpetrator.
3.3. Notably, the applicant consented to taking the polygraph test and passed with flying colours. It was not the applicant’s contention that she was prejudiced by the polygraph test when it was taken.
[4] It is well accepted that for the leave to appeal to be granted, the applicant should in essence show that appeal would have a reasonable prospect of success. In Member of the Executive Council for Health, Eastern Cape v Mkhitha and Another[1], the Court described ‘reasonable prospects of success’ as follows:
‘[16] Once again it is necessary to say that leave to appeal, especially to this court, must not be granted unless there truly is a reasonable prospect of success. Section 17(1)(a) of the Superior Courts Act 10 of 2013 makes it clear that leave to appeal may only be given where the judge concerned is of the opinion that the appeal would have a reasonable prospect of success; or there is some other compelling reason why it should be heard.
[17] An applicant for leave to appeal must convince the court on proper grounds that there is a reasonable prospect or realistic chance of success on appeal. A mere possibility of success, an arguable case or one that is not hopeless, is not enough. There must be a sound, rational basis to conclude that there is a reasonable prospect of success on appeal.’
[5] In labour matters, there is another consideration, which is the statutory obligation that disputes must be resolved expeditiously.[2]
[6] I have holistically assessed all the grounds of appeal and I am persuaded that there are no prospects that another court would reasonably arrive at a decision different to the one reached by this Court. Yet, I am disinclined to award costs against the applicant.
[7] In the circumstances, the application for leave to appeal is dismissed with no order as to costs.
P. Nkutha-Nkontwana
Judge of the Labour Court of South Africa
[1] [2016] JOL 36940 (SCA) at paras 16 – 17; [2016] ZASCA 176. Smith v S [2011] JOL 26908 (SCA) at para 7; Greenwood v S [2015] JOL 33082 (SCA) at para 4; Kruger v S [2014] JOL 31809 (SCA) at para 2; Acting National Director of Public Prosecutions and Others v Democratic Alliance In Re: Democratic Alliance v Acting National Director of Public Prosecutions and Others [2016] ZAGPPHC 489.
[2] Martin and East (Pty) Ltd v NUM and Others (2014) 35 ILJ 2399 (LAC); [2013] ZALAC 35. Seatlholo and Others v Chemical, Energy, Paper, Printing, Wood and Allied Workers’ Union and Others (2016) 37 ILJ 1485 (LAC) at para 3; [2016] ZALCJHB 72.