Mpumalanga Gambling Board v Commission for Conciliation Mediation And Arbitration and Others (JR3251/2011) [2014] ZALCJHB 317 (21 August 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Not of interest to other Judges

Case no: JR 3251/2011

In the matter between:

MPUMALANGA GAMBLING BOARD Applicant

and

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION First

Respondent

COMMISSIONER ALFRED MASHEGOANE N.O. Second Respondent

AKWELA MANKE RAPATLA Third

Respondent

Heard: 10 July 2014

Delivered: 21 August 2014

Summary: CCMA arbitration proceedings – review of arbitration award. The test for review and principles restated. Onus remains on employer in dismissal cases.

Compensation : Commissioner granted twelve months compensation – the exercise of a discretion not readily to be interfered with.

VENTER AJ

INTRODUCTION

[1] In this review application the Applicant initially sought to review and set aside not only the arbitration award issued by the Second Respondent but also sought to review the postponement ruling dated 31 October 2011 as well as a refusal by the Second Respondent to recuse himself during the arbitration proceedings of 26 September 2011.

[2] When this matter was heard, Mr Pheto, acting on behalf of the Applicant, indicated to the Court that the Applicant has abandoned the review pertaining to the postponement ruling as well as the recusal ruling.

[3] In addition to the aforesaid, Mr Pheto also handed up an ancillary bundle which was not in the Court file at the time. I allowed Mr. Pheto to introduce the bundle. There was no objection from Mr Bucksteg in respect thereof. This was the only documentary bundle that was made use of during the application.

BACKGROUND FACTS

[4] The transcript in this review application was voluminous. In the bundle handed to the Court by Mr Pheto, the Court was directed to the fact that when the Third Respondent was dismissed, he was dismissed on account of two allegations, namely:

[4.1] Sexual harassment; and

[4.2] Use of abusive or insulting language and rude or insolent behaviour.

[5] Mr Pheto directed the thrust of his submissions to the second allegation. The bulk of his argument sought to persuade the Court that the Second Respondent (“Commissioner”) committed a reviewable irregularity, principally so, in that he considered irrelevant evidence when the matter was determined.

In doing so, it was argued, the Commissioner reached the unreasonable conclusion that the Third Respondent’s dismissal was unfair.

[6] Ancillary to the aforesaid and with reference to the incident which caused the allegation of insolence, was the allegation made by the Applicant that the Third Respondent had sexually harassed a colleague at the workplace, namely Ms P S Mnguni or the (“Complainant”).

[7] When the Commissioner had to decide the dispute, his terms of reference were whether the Third Respondent’s dismissal was both substantively and procedurally fair. During the course of the lengthy arbitration proceedings, the issue of Mr A J Otto being subpoenaed seemed to raise some cause of concern. As I read the transcript, it appears as if the Third Respondent at that stage, in relation to the introduction of Mr Otto, sought to demonstrate to the Commissioner that the dismissal was also

procedurally unfair.

[8] Not much was really made about the apparent way in which the subpoena was issued at the hearing of this matter. The Commissioner, during the arbitration proceedings, dealt with the manner in which the subpoena was issued. I for obvious reasons will not follow a peace-meal approach and in any event find nothing untoward the manner in which the subpoena was issued. Nothing proves

the Commissioners hand in the allegation raised. However, as I have indicated, during the hearing of this matter Mr Pheto was largely

concerned with the second allegation. The Third Respondent’s dismissal was only found to be substantively unfair.

[9] More specifically, the Commissioner in the arbitration award referred to the introduction of Mr Otto as follows:

“18. The testimony of this witness was based on the internal procedures. I have considered the evidence and I hold a view that it would not assist me in my decision. The whole testimony is on record, I do not intend to deal with it hear.”

[10] In the premises, the question the Court has to concern itself with is whether the Commissioner committed some form of misconduct or irregularity and whether the grounds of review raised by the Applicant should succeed pertaining to the finding on the substantive issues.

[11] I did not get the impression that the Applicant took an issue with the manner in which the Commissioner granted twelve months compensation save for the review ground set out in the founding affidavit which reads as follows:

“10.12 It is further submitted that the Second Respondent committed misconduct in relation to his duties as an arbitrator, since at the commencement of the proceedings, he indicated that ‘there is no employer who will award twelve months salary’ as was requested by the Third Respondent. Yet in paragraph 37 of his Award, the Commissioner states that

“In the circumstances I find that twelve months compensation is just and equitable taking into consideration his unblemished record and the years of service with the Respondent.’”

I will nevertheless deal with this issue later herein.

THE ALLEGATION OF SEXUAL HARASSMENT

[12] On or about 17 January 2011, Ms P S Mnguni filed a letter of complaint with Mr Lucas Maseko, the Chief Financial Officer of the Mpumalanga Gambling Board. In this letter she complained about the conduct of the Third Respondent. She also stated in her letter that her contract will not be renewed. No mention was made in this letter that she was sexually harassed by the Third

Respondent.

[13] The Applicant launched an investigation into the allegations. During this investigation the Applicant sought the Third Respondent’s views in connection therewith. On 24 May 2011 an investigation report was compiled by Mr Vusi Mtshweni. In the aforesaid report, Mr Vusi Mtshweni stated that he received a complaint by Ms P S Mnguni and that the complaint relates to the cancellation of her cleaning services contract with the Applicant.

[14] Reference is made in this report of an allegation of sexual harassment. The report indicates that Ms P S Mnguni complained that she had been sexually harassed and that sexual advances had been made to her with promises being made by the Third Respondent that he would use his position to influence the renewal and/or extension of her cleaning services contract if she succumbed to his sexual advances.

[15] The report at item 2.2 set out the Applicant‘s views on the charge of sexual harassment and at item 2.4 the charge pertaining to abuse or insulting language and rude and insolent behaviour. The thrust of the latter charge will be dealt with under a separate heading herein-below.

[16] When the arbitration proceedings commenced before the Commissioner, Ms P S Mnguni testified that the allegations of sexual harassment and the incidents thereto spanned over a period from 2003. She further testified that the allegation of sexual misconduct took place during that period of time until 2010. These types of allegations fall within a unique compass of facts as

in this instance no witness was introduced to support her version. What the Commissioner had to decide on the basis of the evidence adduced was whether the Applicant through this witness had discharged its onus. I will return to this issue below.

THE ALLEGATION OF ABUSIVE OR INSULTING LANGUAGE AND RUDE AND INSOLENT BEHAVIOUR

[17] This allegation has its genesis in a letter written by the Third Respondent on or about 8 February 2011 subsequent him being confronted with allegations of misconduct wherein he in a disgruntled manner set out his views towards Mr Vusi Mtshweni, the first witness during the arbitration proceedings. In this letter and in a highly irate manner, the Third Respondent denied the allegations put before him, more specifically the allegations that he had sexually harassed Ms P S Mnguni as per her version.

[18] Mr Vusi Mtshweni took umbrage in the manner in which the Third Respondent corresponded with him through a series of e-mails. The Applicant alleged that, based on a number of incidents described in the report, the manner in which the Third Respondent expressed himself was tantamount to abusive or insulting language and/or rude and insolent behaviour justifying his dismissal.

[19] It is common cause, and this was also dealt with by the Court during the hearing of this matter, that when the Third Respondent corresponded with Mr Vusi Mtshweni, no profanities or threats were made in his letter. In other words he did not use vulgar language or threaten to do anything to any person other than express himself in the manner in which he did and which was properly set out in both his letter and Mr Vusi Mtshweni’s report. In the premises and reduced to its bare essentials, these allegations inter alia led to the Third Respondent’s demise at the workplace. Ancillary to the aforesaid was the allegation that the employment

relationship suffered harm.

THE ARBITRATION AWARD

[20] In a sparsely reasoned arbitration award, the Commissioner as is so often the case, referred to the test set out in Sidumo and Another vs Rustenburg Platinum Mine Ltd and Others (2007) 12 BLLR 1097 (CC). At the outset the Commissioner found that having applied his mind to the merits, he concluded that on a balance

of probabilities the Third Respondent’s dismissal was substantively unfair. He briefly sets out his reasoning

as follows:

[20.1] That the evidence of Ms Mnguni was not corroborated;

[20.2] She only raised the allegation of being sexually harassed subsequent the termination of her contract with the Applicant’

[20/3] She had been given proper notice in terms of the provisions of the contract;

[20.4] She had failed to explain why it took her so long to report the sexual harassment;

[20.5] That her reasons as to why she was afraid that she would lose her job was unacceptable.

[21] The Commissioner also considered that this witness did not dispute the fact that there were female prosecutors stationed in the building where these apparent incidents took place. She rather concealed the allegations and did not cry for help. In his view, the Commissioner found this to be highly unusual. The Commissioner found that she was not a credible witness.

[22] Regarding the allegation dealing with the use of abusive and/or insulting language and rude or insolent behaviour, the Commissioner found that Mr Vusi Mtshweni personalised the response by the Third Respondent in relation to the allegation and that he took offence without bringing it to the attention of the Third Respondent. The result was a harsh decision taken by the Applicant. In addition thereto, the Commissioner found that considering the Third Respondent’s length of service and his disciplinary record, closer attention should have been given to the credibility of the allegations.

[23] The Commissioner then granted twelve months compensation and submitted that this was just and equitable in the circumstances.

[24] As indicated above, Mr Pheto acting for the Applicant directed the most attention in his submissions to the insolence allegation. He sought to persuade me that the Commissioner incorporated irrelevant evidence which caused him to conclude the matter as he did.

THE RELEVANT LEGAL PRINCIPLES

[25] The test for review, by now, needs little introduction in this Court.[1] In the matter CUSA v Tao Ying Metal Industries and Others,[2] the Constitutional Court held:

“It is clear ... that a commissioner is obliged to apply his or her mind to the issues in a case. Commissioners who do not do so are acting lawfully and/or reasonably and their decisions will constitute a breach of the right to administrative justice.”

[26] Thus diluted to its bare essentials, an arbitration award must be reasonable, and if it is not reasonable it can be reviewed and set aside. However, in determining a review application, as held by the Labour Appeal Court[3] a piecemeal approach to such review application does not suffice. What must be considered is that on the totality of the evidence, an irregularity was perpetuated and not on a fragmented or piecemeal analysis of the evidence. In Kloof supra, the Labour Appeal Court held that:

“As soon as it is done in a piecemeal fashion, the evaluation of the decision arrived at by the arbitrator assumes the form of an appeal. A fragmented analysis rather than a broad-based evaluation of the totality of the evidence defeats review as a process. It follows that the argument that the failure to have regard to material facts may potentially result in a wrong decision has no place in review applications. Failure to have regard to material facts must actually defeat the constitutional imperative that the award must be rational and reasonable – there is no room for conjecture and guesswork.”

[27] When it comes to the application of determining credibility, this Court has consistently applied the principles set out by the Supreme Court of Appeal.[4] These principles have more recently been properly considered by the Court in Solidarity obo Van Zyl v KPMG Services (Pty) Ltd and Others.[5]

[28] A Commissioner must, when confronted with two irreconcilable versions, also apply the test set out in Stellenbosch supra. The application of this test becomes critical when, as described above, a commissioner only has the version of the complainant of the alleged acts of sexual harassment versus the denial of the Third Respondent.

[29] This case also causes the Court to consider the principle of onus. In terms of Section 192(2), seeing that dismissal was not in dispute, the onus rested on the Applicant to demonstrate to the Commissioner that the dismissal was fair. It is so that the onus can never shift from the party upon whom it originally rested. Only the evidentiary burden may shift or even be transferred in the course of the case, depending upon the measure of proof furnished by the one party to the other.[6] Similarly, where there are two clear mutually destructive versions then a commissioner ought to ask him or herself, especially in light of any contradictions which may prevail during the arbitration, which version was more probable.

[30] In Pillay v Krishna[7] the Court held as follows:

“In my opinion the only correct use of the word ‘onus’ is that which I believe to be the true and original sense (cf D31.22) namely the duty which is cast upon the particular litigant in order to be successful, are finally satisfying the Court that he is entitled to succeed on his claim or defence, as the case may be, and not in the sense merely of his duty to adduce evidence to combat a prima facie case made by his opponent.”

This Court has similarly held that a litigant does not require many witnesses to prove his or her case on a balance of probabilities

provided that, if he or she, as the case may be, is a single witness, his or her evidence must be clear and satisfactory in every material respect.[8] In the premises, the incidence of the onus of proof decides which party will fail on a given issue if after hearing all the evidence the Court, or in this case a CCMA Commissioner, is left in doubt. What this means is that on a balance of probabilities, when all the evidence has been introduced, and it clearly favours the one or the other side then the onus of proof is in a sense of no consequence. It is only when it is not possible to prefer the one version to the other that the need for the onus becomes actual.[9]

[31] I shall now proceed to apply and consider the aforesaid legal principles to the facts.

[32] A review Court does not sit and hear a case on the merits de novo nor does it decide afresh what it would have done given the particular set of facts. It is so that a commissioner is almost placed in a similar position in that a commissioner, in terms of Sidumo supra is not given the power to decide afresh based on the evidence before him or her what he or she would do, but only to decide what the employer - in this case the Applicant in dismissing the Third Respondent - did was fair. It is further trite that an arbitration hearing is a de novo hearing. To that extent I consider the first allegation. This version which came before the Commissioner involved only two parties. The Applicant introduced a witness who testified to a number of incidents. She was made subject to cross-examination where the Third Respondent denied the offences complained of.

[33] The Third Respondent when he presented his version similarly denied the allegations and held his version under cross-examination. The Commissioner was then faced with two mutually destructive versions. He had to determine this allegation by also considering these versions, as well as by considering the credibility of the complainant in the sexual harassment issue as well as Third Respondent before him. This he did by also having regard to the manner in which the witnesses performed in the witness box. This Court does not have the leisure of assessing the witness performance other than reading the transcript. The transcript, which is extremely lengthy, indicates what the evidence consisted out of that the Commissioner ultimately considered. The Applicant’s version was presented to him in a manner where the Applicant sought to demonstrate that the acts of sexual harassment took place in the manner so described by the complainant.

[34] What is important to remember is that the onus to prove this allegation, alternatively persuade the Commissioner that sufficient evidence has been introduced rested on the Applicant. This was a situation where it largely boiled down to a “she said, he said” scenario. I have already referred to the arbitration award wherein the Commissioner summed up his thinking regarding the version of Ms Mnguni at paragraphs 20.1 to 20.5 and will not repeat them herein.

[35] If I have regard to the contents of the letter which Mr Pheto for the Applicant referred to, it is significant to note that this letter attached as Annexure “MGB5” to the bundle handed up by Mr Pheto, makes no mention to any allegation of sexual harassment. If I consider this letter, a number of features appear, namely:

[35.1] The letter is addressed to Mr Lucas Maseko and the first paragraph reads as follows:

“As requested by you that I forward a letter explaining my problems with the board about the termination of my contract and my problem with Mr Freddy Rapatala my former manager.”

[35.2] This letter indicates some frustration which the complainant had with the Third Respondent but significantly this letter is written a few weeks prior to the Third Respondent writing his letter to Mr Vusi Mtshweni[10] and the subsequent investigation report being issued on 24 May 2011.[11] Up to this point in time, the complainant had made no mention of the allegation of sexual harassment she allegedly suffered at the hand of the Third Respondent. She did not seek to supplement her letter.

[35.3] When this matter was heard in Court, I indicated to Mr Pheto that the Applicant did not include Bundle A and Bundle B which were used during the arbitration proceedings. Having regard to the transcript on the question of onus, it becomes apparent that Ms Mnguni further testified that she reported the alleged sexual harassment to one “Bandile”.[12]

[35.4] She further testified that this was done during 2005 and when this was done, a Mr Akwella and Mr Gotle were also called in. She further testified that she brought this incident to the attention of a Mr Absalom.[13]

[35.5] None of the aforesaid persons were introduced to corroborate the version of the complainant. The question arises as to why only in 2010 did this issue surface. Surely if this allegation indeed occurred the complainant would have persisted in her earlier contentions. Considering the views of the Commissioner, I am of the opinion that he was not unreasonable in concluding that her conduct is highly unusual. It appears that the Commissioner considered what I have been able to glean from the transcript. Given the various occasions that the complainant had to raise this allegation and given the fact that on her own version there were many people informed of this allegation, it should ordinarily follow that these individuals should be introduced to corroborate her version, which was not done. To that extent the Applicant did not adduce sufficient evidence to persuade the Commissioner that the dismissal was substantively unfair.

[36] I thus conclude my evaluation of this issue as follows, namely the onus rested on the Applicant and this witness to discharge a version which would persuade the Commissioner, on the probabilities, whether the Third Respondent had committed the acts so complained of. Only two witnesses were introduced by the Applicant namely Mr Vusi Mtshweni, who was not a witness to any acts of sexual harassment neither did the Applicant introduce Mr Lucas Maseko to give evidence regarding any form of communication he and the complainant would have had. Reduced to its bare essentials, the Commissioner was faced with two mutually destructive versions namely

that Ms Mguni and the Third Respondent. He concluded that for the reasons I have referred to, he was not persuaded that the

Applicant discharged the onus. For those reasons I hold the view that the finding on sexual harassment is a finding that a reasonable commissioner could reach based on the evidence before him. It appears to be a finding that falls within the band of decisions which could be concluded subsequent this evidence being presented to the Commissioner, the manner in which the evidence was presented to the Commissioner and considering the ultimate onus applicable in this instance. I thus cannot find fault with the Commissioner’s reasoning on this issue alone.

[37] I now turn to the Commissioner’s reasoning regarding the second allegation. The Commissioner at paragraph 35 of the arbitration award indicated that Mr Vusi Mtshweni personalised the response from the Applicant regarding the allegations raised at the time. The vexed letter is found in the additional bundle handed up by Mr Pheto.[14] It is so that this letter contains no profanity or other form of unsavoury comment, save those which the Applicant has set out at

paragraph 7.4.5 of the founding affidavit.[15]

[38] The Applicant contends that these comments are insulting, rude, insolent and abusive. Mr Pheto sought to impress on the Court that the Commissioner took irrelevant facts into consideration when he determined this allegation. I understand the Commissioner’s reasoning to be that Mr Mtshweni subjectively took umbrage to the manner in which the Third Respondent framed his letter. Based on the way he interpreted the comments made and which I have referred to above, those comments were regarded by the Applicant as serious. It is a commissioner who has to decide on the fairness of a dismissal.

[39] The Commissioner stated that the charges themselves were devastating and needed a careful approach taking into account the language used in this matter. I agree with his reasoning. There can be no doubt that the charges levelled against the Third Respondent were serious and one does not have to look far to reach the conclusion that when these charges were presented in the domestic enquiry, the employer was incensed regarding the insolence allegation. Whether dismissal is appropriate is another question altogether.

[40] However, I understand the Commissioner’s reasoning to be that when these charges were determined, a careful consideration, objectively speaking, had to be employed towards these allegations to determine whether dismissal is the appropriate penalty. The Commissioner was not satisfied that this took place, which he is allowed to do considering the powers afforded to him. What the Commissioner is in fact saying is that the chairperson had not properly or objectively considered the impact of what was complained of compared to how the allegations ought to have been objectively assessed.

[41] The Commissioner in terms of Sidumo did not defer to the decision by the employer. In asking myself the question whether the conclusion reached by the decision-maker in this instance, falls within a conclusion or decision that a reasonable decision-maker could reach, given the evaluation of the

facts as they stand, I have to answer in the affirmative. I am of the view that the conclusion reached by the Commissioner falls within the band of decisions which a commissioner, given the same set of facts could reach in the circumstances. The dismissal in this instance, considering the manner in which the Third Respondent expressed himself in the letter was too harsh.

[42] In the premises I am not interfering with the Commissioner’s reasoning.

[43] The last issue I considered is the Commissioner’s finding that twelve months’ compensation is just and equitable. The Commissioner considered the Third Respondent’s unblemished record and years of service with the Applicant. The Commissioner further reasoned that the Third Respondent was not responsible for the breakdown in the employment relationship. The Commissioner concluded that the Third Respondent’s integrity was compromised as a result of the allegations against him. It is so that in this instance, as I understand the Commissioner’s thinking, he considered the seriousness of the allegations. There can be no doubt that the allegation of sexual harassment has a severe social impact on the Third Respondent. The Commissioner granted twelve months which he is entitled to do in terms of Section 194 of the LRA.

[44] The arbitration award does not merely refer to an amount of compensation being awarded to the Third Respondent, but the Commissioner, in rudimentary terms, sets out what he considered when he awarded twelve months’ compensation. The Commissioner did not merely plumb an amount of compensation and left the Applicant in the dark as to what was considered. The Court holds the view that there was a consideration or reasons of facts allowing the Commissioner to come to a conclusion why twelve months’ compensation is just and equitable.

[45] In the matter of Le Monde Luggage CC t/a Pakwells Petje v Dunn NO and Others[16] the Labour Appeal Court held as follows:

“The compensation which must be made to the wronged party is a payment to offset the financial loss which has resulted from a wrongful act. The primary enquiry for a court is to determine the extent of that loss, taking into account the nature of the unfair dismissal and hence the scope of the wrongful act on the part of the employer. This court has been careful to ensure that the purpose of the compensation is to make good the employee’s loss and not to punish the employer.”

[46] Taking the aforesaid into consideration, this Court, considering that it does not decide the merits afresh or what it would do in the circumstances as a review Court has to consider whether what the Commissioner did at the time was reasonable. The discretion that a commissioner has in determining compensation is not lightly to be interfered with and unless there are sound reasons for interference, then the Court should perform its review function and not substitute its own moral regard to the outcome and offset its view, alternatively interfere merely because it may hold a different view when the matter is to be decided. That having been said, from the authorities it is abundantly clear that an arbitration award is not required to be an eloquent judgment and does not need to be written as such, but must merely give effect to the principle of speedy and expeditious employment dispute resolution. The arbitration award does not need to set out in such extreme clarity the reasons why a commissioner concluded an issue in the arbitration award.

[47] Considering what was before the Court regarding the complaint to compensation, the Court holds the view that it is not necessary to interfere with the Commissioner’s finding on that basis.

[48] Wherefore, considering the above I make the following order:

The application for review is dismissed with costs.

_________________

Venter AJ

Acting Judge of the Labour Court

APPEARANCES:

For the Applicant:

Adv K. Pheto

Instructed by:

Macbeth Ncongwane Attorneys

For the Third Respondent:

Adv H. Bucksteg

Instructed by:

Carel J. Schoeman Attorneys

[1]

Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC); Herholdt v Nedbank Ltd (Congress of SA Trade Unions as amicus curiae) (2013) 34 ILJ 2794 (SCA), Goldfields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 943 (LAC)

[2]

(2008) 29 ILJ 2461 (CC)

[3]

Goldfields Mining SA (Pty) Ltd (Kloof Mine) (“Kloof”)

[4]

Stellenbosch Farmers Winery Group Ltd v Martell et Cie and Others 2003 (1) SA 11 (SCA); Sasol Mining (Pty) Ltd v Mgqeleni NO and Others (2011) 32 ILJ 723 (LC)

[5]

(2014) 35 ILJ 1656 (LC)

[6]

Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at 548 D

[7]

1946 AD 946 at 952

[8]

Mnguni v Gumbi (2004) 25 ILJ 715 (LC)

[9]

National Union of Metal Workers of SA and Others v Television and Electrical Distributors (Pty) Ltd (1993) 14 ILJ 738 (IC)

[10]

Annexure “MGB2” – letter dated 8 February 2011

[11]

Annexure “MGB3”

[12] Record Part C, p 242, line 3

[13] Record Part C, p 251, line 7

[14]

Annexure “MGB2”.

[15] Index, Item 3, Founding Affidavit, p 12, paragraph 7.4.5 (a) – (i)

[16] (2007) 28 ILJ 2238 (LAC)