Masemola v Commission for Conciliation, Mediation and Arbitration and Others (JR1025/2013) [2016] ZALCJHB 183 (17 May 2016)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case No: JR 1025/2013

In the matter between:

MORGAN THATO MASEMOLA

Applicant

And

THE COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

First Respondent

FAIZEL MOOI N.O

Second Respondent

SOUTHERN SUN HOTEL INTERESTS (PTY) LTD

Third Respondent

Heard:

14 January 2015

Delivered: 17 May 2016

PIENAAR, AJ

Introduction

[1] This is an opposed application for review in terms of section 145 of the Labour Relations Act, No 66 of 1995 ("LRA").

[2] The Applicant was dismissed by the Third Respondent pursuant to being found guilty of sexual harassment in the workplace. The Applicant referred the matter to the CCMA. The Second Respondent found that the dismissal was procedurally and substantively fair.

Background

[3] The Applicant is alleged to have sexually harassed an employee of a sub-contractor of the Applicant's employer, i.e. Southern Sun Hotel Interests (Pty) Ltd (the Third Respondent).

[4] It is common cause that the Applicant, during a conversation on Whatsapp, asked Ms D., the employee of the sub-contractor, for a sexual favour in exchange for the Applicant deleting nude pictures of D. which he had obtained on his cell phone.

[5] It was common cause that the following transpired during the Whatsapp conversation:

5.1. D. asked the Applicant to delete the photographs.

5.2. The Applicant said to D. ‘you [do not] believe the iron is hot’.

5.3. D. responded by saying ‘f..k you;

5.4. The Applicant responded as follows: ‘[Y]ou both[1] gonna give me sex @ the same tym oh else to Facebook on Saturday’.

[6] The Applicant did not delete the nude photographs at the request of D.. He only did so after being confronted by the SAPS days after the incident.

[7] The Applicant, therefore, attempted to extort sexual favours from D. by threatening to post the nude photographs of her on Facebook.

[8] Pursuant to the incident, a disciplinary hearing was conducted by the Third Respondent at which the Applicant was found guilty of sexual harassment. In lieu of this finding, the Applicant was dismissed by the Third Respondent.

[9] During the proceedings at the CCMA, Ms Ferreira testified on behalf of the Third Respondent. Ferreira gave evidence regarding the Third Respondent's disciplinary code and procedures and its policies in relation to sexual harassment, including the Applicant's knowledge of same. Ms Ferriera also gave evidence as to the appropriateness of the sanction of dismissal.

[10] D. gave evidence with regard to the background facts leading up to the Whatsapp conversation and the details of the conversation itself. She stated that she was offended by the Applicant's statements and threat during the Whatsapp conversation. D. also testified that she could not even look at the Applicant at the workplace following the incident and that he had infringed her dignity.

[11] During the arbitration proceedings, the Applicant did not deny the Whatsapp conversation nor dispute having made the statements and threat contained in same. However, according to the Applicant, his conduct was justified because D. said ‘f..k you’ to him, which, so the Applicant averred, amounted to her (D.) harassing him (the Applicant).

[12] The Second Respondent held that the Applicant's statements during the Whatsapp conversation were unwelcome, uninvited and clearly constituted sexual harassment.

[13] The Second Respondent did not accept the Applicant's defence that D. swearing at the Applicant constituted a justification for the sexual harassment.

[14] A further argument submitted by the Applicant in his defence was that the conversation on Whatsapp did not occur on the premises of the Third Respondent or during working hours.

[15] The Second Respondent rejected this defence since the pictures were taken off D.'s phone while she was at work.

[16] Moreover, D. worked in the same work-area as the Applicant, albeit for a sub-contractor.

[17] Thus the Second Respondent held that the Applicant's conduct impacted on their work relationship even though the Whatsapp conversation did not occur on the Third Respondent's premises or during working hours.

[18] It was not disputed that the Applicant was well aware of the sexual harassment policy of the Third Respondent, which provides that:

‘…sexual harassment by any employee of another person will not be tolerated and any such conduct will be subject to serious disciplinary action.’ (my emphasis).

[19] The Second Respondent considered the lack of remorse shown by the Applicant to be an important factor in determining whether dismissal was the appropriate sanction.

[20] The Second Respondent, accordingly, found that the dismissal of the Applicant was substantively fair.

Findings

[21] In assessing the sexual harassment and the Applicant's defence thereto, I refer to the latest judgment of the Labour Appeal Court dealing with sexual harassment in the workplace, namely, Campbell Scientific Africa (Pty) Ltd v Simmers and Others.[2]

[22] In Campbell, Savage, AJA referred to the 1998 Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace as well as the 2005 Amended Codes of Good Practice on the Handling of Sexual Harassment Cases in the workplace.[3] These Codes were issued by NEDLAC in terms of section 203(1) of the LRA and by the Minister of Labour in terms of section 54(1)(b) of the Employment Equity Act, No 55 of 1998 ("EEA") respectively.

[23] The Court held that both Codes can be used as guidelines for Commissioners in interpreting and applying the LRA because the Amended Code does not substitute or trump the 1998 Code.

[24] The Labour Appeal Court highlighted that both Codes provide for the fact that victims of sexual harassment in the workplace do not only include employees but may also include ‘clients, suppliers, contractors and others having dealings with a business’.[4]

[25] According to the 1998 Code, sexual harassment is defined as:

‘(1) … unwanted conduct of a sexual nature. The unwanted nature of sexual harassment distinguishes it from behaviour that is welcome and mutual.

(2) Sexual attention becomes sexual harassment if:

(a) The behaviour is persisted in, although a single incident of harassment can constitute sexual harassment; and/or

(b) The recipient has made it clear that the behaviour is considered offensive; and/or

(c) The perpetrator should have known that the behaviour is regarded as unacceptable.’

[26] According to the Amended Code, sexual harassment is defined as:

‘…unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace, taking into account all of the following factors:

4.1 whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation;

4.2 whether the sexual conduct was unwelcome;

4.3 the nature and extent of the sexual conduct; and

4.4 the impact of the sexual conduct on the employee.’

[27] The Labour Appeal Court applied these factors set out in the Codes and found that, on the facts before it, the victim was sexually harassed because the conduct of the perpetrator:

(i) was unwelcome and unwanted;

(ii) offensive;

(iii) intruded upon the victim's dignity and integrity; and

(iv) caused her to feel both insulted and concerned about her personal safety.[5]

[28] In my view, D. has suffered all of the above. She testified that she could not even look at the Applicant after the incident and that the Applicant had infringed upon her dignity. The threat made to D. by the Applicant as well as the crude comments made by him were not only unwelcome, unwanted and offensive to D. but also made her feel insulted and concerned about her personal safety.

[29] Moreover, I view such conduct on the part of the Applicant to be an intrusion upon D.'s constitutional rights to human dignity and privacy as enshrined in sections 10 and 14 of Constitution of the Republic of South Africa, 1996.

[30] As to the appropriate sanction for sexual harassment, the Labour Appeal Court in Campbell endorsed the factors taken into account by the court a quo, namely:

30.1. the seriousness of the misconduct;

30.2. the lack of remorse shown by the Applicant;

30.3. the conclusion that there was little room for rehabilitation; and

30.4. that a future employment relationship was not possible.[6]

[31] Insofar as the Applicant showed no remorse, I refer to the judgment of Conradie, JA in De Beers Consolidated Mines Ltd v CCMA and Others,[7] where he held as follows:

‘It would in my view be difficult for an employer to re-employ an employee who has shown no remorse. Acknowledgement of wrong doing is the first step to rehabilitation. In the absence of a recommitment to the employer's workplace values, an employee cannot hope to re-establish the trust which he himself has broken. Where … an employee, over and above having committed an act of dishonesty,

falsely denies having done so, an employer would, particularly where a high degree of trust is reposed in an employee, be legitimately

entitled to say to itself that the risk of continuing to employ the offender is unacceptably great.’[8]

[32] In the present matter, the Applicant did not dispute the existence of the rule which prohibited sexual harassment. Instead of showing remorse, the Applicant endeavoured to justify his conduct by stating that he was harassed or provoked by D. when she swore at him. This can never serve to justify sexual harassment.

[33] The employer owes a duty towards his or her employees (as well as clients, suppliers, contractors and others who have dealings with the employer, as established above) to protect them from sexual harassment. This duty exists even if such sexual harassment takes place outside the work premises and formal working hours as such conduct impacts on the working environment.

[34] In Campbell, an employee made unwelcome sexual advances towards another while they were on a business trip together. This was held to constitute sexual harassment despite the fact that such sexual harassment did not occur at the employer's workplace. With reference to the case of Hoechst (Pty) Ltd v CWIU and Another,[9] the Labour Appeal Court in Campbell held as follows:

‘The appellant was entitled to discipline Mr Simmers for misconduct which was both related to and impacted on his employment relationship with the appellant.[10] (My emphasis)

[35] Accordingly, I find that the material before this Court is insufficient to prove that the decision made by the Commissioner was one that a reasonable decision maker could not reach.

[36] Given the seriousness of the sexual harassment and the Applicant's lack of remorse, the dismissal was indeed the appropriate sanction.

[37] Insofar as costs are concerned, I took into consideration the seriousness of the offence, the lack of remorse shown by the Applicant, the fact that the applicant had no prospect of success and the fact that Applicant caused the Third Respondent to incur unnecessary costs.

Order.

1. The application is dismissed with costs.

______________

Pienaar, AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES.

For the Applicant: Advocate L Oken

Instructed by:

Corien Potgieter Inc

For the Respondent: J Driver

Instructed by:

Edward Nathan Sonnenbergs Inc

[1] The Applicant had also obtained nude photographs of Dlamini's cousin, Khalipha.

[2] (2016) 1 BLLR 1 (LAC).

[3] Ibid at paras 19-25.

[4] Ibid at para 22; Para 2.1 of the 1998 Code.

[5] Ibid at para 32.

[6] Ibid at para 34.

[7] (2000) 9 BLLR 995 (LAC).

[8] Ibid at para 25.

[9] (1993) 14 ILJ 1449 (LAC),

[10] Campbell (supra) at para 26.