Nadel v Johannesburg Jewish Helping Hands and Burial Society (JS135/2015; JS306/2015) [2016] ZALCJHB 503 (7 December 2016)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case No: JS135/2014

JS306/2015

In the matter between:

AVIEL TILON NADEL Applicant

And

JOHANNESBURG JEWISH HELPING HANDS AND

BURIAL SOCIETY

Respondent

HEARD: 21 November 2016 to 25 November 2016

DELIVERED: 7 December 2016

SUMMARY: The employee had been dismissed in a disciplinary hearing conducted by an independent chairperson - numerous disciplinary hearings against the employee preceding his dismissal were also conducted by independent chairpersons – therefore the employer cannot be said to have engaged in a pattern of harassment against the employee – regarding the dismissal, the employee can not rely on religious laws or discrimination on religious grounds to resist a dismissal or disciplinary actions in terms of the Labour Relations Act – it was not discrimination based on his religious belief that he was dismissed – the respondent applied its disciplinary code and procedures that applied to the employee as an employee and as its welfare beneficiary and participant in its world of work programme.

MALINDI AJ

Introduction

[1] The two matters under case numbers JS135/2014 (the first matter) and JS306/2015 (the second matter) were consolidated by order of this court on 28 August 2015, and were heard together.

[2] In the first case the Applicant complains that in August 2010 he was summarily suspended by the Respondent as a result of him having raised numerous complaints about the terms and conditions of his employment and about the conduct of a Mr David Weber (“Weber”) who was his superior and general manager and funeral director of the Respondent.

[3] He alleges that as a condition of him being reinstated he was required by the Respondent to subject himself to a psychiatric evaluation by a medical practitioner elected by the Respondent. He alleges that the psychiatric evaluation contravenes Section 8 of the Employment Equity Act, 55 of 1998 (“the EEA”) and it resulted in a violation of his dignity. He referred an unfair labour practice complaint to the Commission for Conciliation, Mediation and Arbitration (“CCMA”) about the psychological testing as well as his suspension and non-reinstatement as a full employee. This dispute was resolved by agreement between the parties on 11 May 2011, save for the issue of psychiatric testing.

[4] Regarding the Applicant’s complaints of unfair labour practice, unfair discrimination in terms of s 5 of the EEA and withdrawal of the food benefit to him, the matter resulted in a settlement agreement at the CCMA whereby the Applicant was reinstated with effect from 1 May 2011 on the same terms and conditions of employment which governed the employment relationship prior to the dismissal on 14 January 2009.

[5] In his complaint about the withdrawal of the food benefit the Applicant states that the hotel manager at the Capri Hotel had told him on 6 August 2010 that meals at the Capri were no longer available to him. He alleges that he had not been informed of this new arrangement before this day. He was suspended 5 days later.

[6] He was thereafter subjected to a psychiatric evaluation on the orders of Cindy Crawchuk, the Human Resources Manager at the Respondent. After the evaluation he was put on a course of medication to treat his impulsiveness and oversensitivity. Not satisfied with the evaluation, he sought a second opinion which the Respondent allowed. He thereafter nominated his own psychiatrist.

[7] The Applicant proceeded to set out a number of complaints against Weber from June 2011, including allegations of general harassment, unfair discrimination in his exercise of power and position, disparaging and disrespectful conduct towards the Applicant, criticisms and intimidation, false accusations regarding time keeping, walking in whilst the Applicant was undressed to his underpants, treating him in a belittling or demeaning manner, being given additional tasks outside his scope of duties as punishment, mocking and speaking to the Applicant in a sarcastic manner.

[8] On 16 April 2012 the parties signed another settlement agreement at the CCMA whereby the Applicant withdrew all the labour disputes and the Respondent undertook to remove all written warnings issued against the Applicant. As a result of the settlement agreement the referral to the Labour Court of the complaint against psychiatric evaluation was withdrawn by the Applicant on 3 May 2012.

[9] However, during July 2013 the Applicant was issued with two written warnings which led to these matters being referred to the CCMA whereby the Applicant claimed victimisation and unfair treatment. These matters were also settled between the parties on 25 October 2013 whereby the written warnings were withdrawn.

[10] In November 2013 the Applicant was issued with a final written warning for begging. This related to the Respondent’s complaint that the Applicant begged from a member of the community at the Westpark Cemetery, a practice that is prohibited in terms of the

Respondent’s policy. The Applicant referred this matter to the CCMA as well.

[11] The Applicant alleges that Weber is his persecutor since all the disciplinary proceedings have been initiated by Weber. He pleads therefore that the court must take into account all these incidents of alleged harassment in order to come to the conclusion that in relation to the second matter, being his dismissal, was as a result of the Respondent wanting to get rid of him for having challenged the Respondent vigorously about these incidents in the CCMA and this Court.

[12] He pleads essentially that he is protected by the provisions of section 6, provides that harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of the grounds of unfair discrimination listed in subsection 1, read with sections 50 and 60 of the Employment Equity Act and section 186(2) of the Labour Relations Act. Regarding the second matter, the Applicant was dismissed on 27 February 2015 following upon a disciplinary hearing. The charges against him were as follows:

“Gross Misconduct

1. In that on 10th February 2015 you received food from the Capri Hotel, which was meant for the residents supper from 1 of the staff members, Ndefalini Nethavhane, you “tipped her” R10 for the food received.

2. Failure to comply with company policy and procedures in that you are aware of the company policy that staff members are not allowed to eat from any of our facilities.”

[13] The applicant referred the matter to the CCMA on 3 March 2015 as a case of automatically unfair dismissal. On 26 March 2015 the CCMA referred the dispute to the Labour Court for determination as the matter could not be resolved through conciliation.

[14] The Applicant alleges the following in his statement of claim:

“35 The dismissal was furtively crafted to rid the Defendant of the Claimant’s employment because the Claimant exercised his rights under the Labour Relations Act, Act No. 66 of 1995 … and the Employment Equity Act, Act No. 55 of 1998 …, and instituted proceedings in the above court under case number JS135/2014. The dismissal thus breached the provisions of section 187(1)(d) of the LRA, section 5 of the LRA and section 51 of the EEA.

38. The on-going discrimination and harassment is in breach of section 6 of the Employment Equity Act, Act No. 55 of 1998 … and section 186(2) of the LRA.”

[15] The Applicant seeks relief as follows:

“(a) Reinstatement with payment of his arrear salary; alternatively 24 months compensation;

(b) Awarding the Claimant’s damages in the amount of R50 000-00;

(c) Interdicting the Defendant from further harassing and discriminating against the Claimant;

(d) Ordering the Defendant to take steps to preclude any of its employees, including its manager named Weber, from further harassing and discriminating against the Claimant.”

Preliminary Issue

[16] At the commencement of this matter the Respondent raised a point in limine regarding the relevance of all the previous matters that were settled at the CCMA as set out in paragraphs 7 to 18 of the consolidated pre-trial minutes dated 14 January 2016. These are matters already referred to in respect of the first matter. I ruled that the issues may be ventilated to the extent that the Applicant seeks to demonstrate that all these matters formed a pattern of harassment and that his dismissal was as a result of him asserting his rights by taking the Respondent to secular dispute resolution forums instead of resolving the issues internally with the Respondent, especially for not referring these disputes to the Beth Din (the Jewish Court).

The Evidence

[17] The Respondent sought to prove that the Applicant’s dismissal and the issuing of the final written warning for begging were valid.

[18] It is common cause that the Applicant was initially engaged with the Respondent during January 1998. At this stage he was a welfare recipient (client) of the Respondent. The Respondent is also known as the Chevrah Kadisha (the Chev or Chevrah). Mr Michael Jonathan Sieff (“Sieff”) and Ms Cindy Krawchuk (“Krawchuk”) are the Chief Executive Officer and Human Resources Manager respectively of the Respondent. They both testified that the main purpose of the Respondent is to:

18.1. Ensure Jewish law observance by the Jewish community;

18.2. Employ needy members of the Jewish community who otherwise are unable to obtain work in the open market;

18.3. Seek employment for members of the Jewish community;

18.4. Offer charity to members of the Jewish community in the form of accommodation, food, financial assistance where necessary, and other basic needs;

18.5. Buy cemeteries and ensure that members of the Jewish community are buried in accordance with Jewish law; and

18.6. To raise funds for purposes of achieving the above.

[19] The Applicant was, during the relevant period, employed by the Respondent as a Mussasek (assistant funeral undertaker), and was working under the direct supervision of Weber, who is the funeral director at Westpark Cemetery.

[20] It appears that when the Applicant first joined the Respondent he joined as a welfare recipient. In August / September 2009 he entered into an agreement with the Respondent, on his election, to participate in the World Of Work programme (WOW). The agreement was with effect from 20 January 2009. The terms and conditions of the agreement resemble that of a contract of employment. One of the conditions of participating in Wow were:

“1.3 We confirm that you, as a volunteer participant in the programme, have no expectation of any remuneration therefor and you further have no expectation of any current or future employment with the society.”

[21] The Applicant undertook further “not (to) engage in any contact which is calculated to or has or may have the effect of bringing the Society or any of its employees, patients, donors or other associated parties into disrepute, including but not limited to, soliciting funds from members of the Jewish community.” (Emphasis original)

[22] Under this programme the Applicant was to be treated as an independent contractor and not as an employee or agent of the Society. He was not to be protected by any of the employment laws of the Republic of South Africa.

[23] The agreement further states that the Applicant was receiving financial assistance in the sum of R7368-00 subsidy and medical aid of R2138-00 which did not constitute any form of fee or remuneration in terms of the agreement and was being provided totally separately to and independent from the services as provided for in the agreement.

[24] It provided further that:

“7.1 You shall be subject to such codes, policies and procedures, which apply between the Society and its employees, specifically the society’s disciplinary code, copies of which are available upon request from the Human Resources Department. You are required to familiarise yourself with the contents of all such codes and procedures.” (Emphasis Original)

[25] The Applicant entered into a contract of employment with the Respondent on 26 May 2011. It was with effect from 1 May 2011 he was appointed in the position of Mussasek and reporting to David Weber at the Westpark Cemetery.

[26] This was a formal employment contract to which the Labour Relations Act and the Basic Conditions of Employment Act, Act 75 of 1997 applied.

[27] The contract of employment could be terminated, amongst others, if the Applicant was found guilty of

“conduct which is likely to bring the employee or the employer into disrepute or is convicted of an offence involving dishonesty.”

The Respondent’s disciplinary code and procedure and its grievance procedures were incorporated into the contract of employment.

[28] The Applicant’s formal employment with the Respondent placed him in a more favourable position than under WoW.

Allegations Against The Applicant

[29] The allegations against the Applicant are simply that on 10 February 2015 he received from an employee of Capri Hotel, Ndefalani Nethavhane, food meant only for residents at the Capri Hotel, whom he handed R10 as a tip during the exchange. The Respondent submitted that the Applicant was aware of the Respondent’s policy prohibiting non-residents from eating at its facilities or obtaining food from such facilities unless there is express permission for them to do so.

[30] The evidence of Siphiwe Makhanya, a security guard with Stallion Reaction, that he saw the Applicant approach Capri Hotel from the gate at the back and collecting the food from an employee of the hotel is un-contradicted. Makhanya confronted the Applicant and confiscated the food and thereafter activated his panic button which resulted in officers of Stallion and the Manager of the hotel reacting thereto. This incident led to disciplinary proceedings being instituted and he was found guilty with a sanction of dismissal.

[31] The Claimant’s defence was, inter alia, that the food benefit was a benefit enjoyed by the Applicant and was terminated without his knowledge or unjustifiably. He also pleaded that he believed that the food in question was simply leftover food, which would have been disposed of. In evidence the Applicant testified further that the Respondent couldn’t charge him of misappropriating its property because he believed that ownership of the food had changed from the moment that the employee at the hotel appropriated it and gave it to him. He defended his actions further on the basis that according to Jewish law regarding giving or accepting charity prohibits the Respondent from taking action against him as he did so when he was hungry and there were no other means of obtaining kosher food.

[32] However, these assertions are not borne out by the documentary evidence before court and the evidence of Mr Sieff, Ms Krawchuk and Rabbi Fox. I refer to the following:

32.1. At a meeting of 16 August 2010 where Ms Krawchuk and Mr Sieff were present with the Applicant it was reported that on 2 August 2010 the Applicant had been identified eating at the Capri. It was reported also that on 6 August Ms Krawchuk had spoken to the Applicant advising him not to go to any of the Chev’s premises for food and that instead he was given money to obtain food elsewhere. Food parcels had been arranged for the Applicant on 9 August in an effort to ensure that he does not go to any Chev’s facilities for food. It was restated that the food policy is that there will be no meals at Capri for non-residents including the Applicant. This was reiterated as a general rule that applied to families and staff of the Respondent. It was arranged that the Applicant would receive kosher meals packed from Capri that he could consume away from the Capri.

32.2. Mr Sieff and Ms Krawchuk testified that whereas the Respondent had been lax in regulating the provisioning of food at its facilities it was not because there was no policy governing that food at its facilities is only available to residents and those expressly permitted to it at these facilities. At the time that the Applicant was informed that the rule will be adhered to strictly it was because the Respondent instituted stricter rules in this regard in order to curb the losses that the Respondent was making in the

catering and other areas of its business.

32.3. Weber testified that he always put policy documents and other announcements about policy matters and everyday administration on the notice board at the cemetery and that he remembered putting up the policy on food on the notice board, which the Applicant has regular access to.

32.4. The summary of the Applicant’s evidence at his disciplinary hearing shows that he was aware of the policy but defied it on the basis that he believed that “it leads to discrimination and that the rule had been put in place merely because of him.” He had also conceded that there had been two to three meetings with him where the food policy was discussed.

32.5. At the meeting of 29 October 2010 where Ms Krawchuk and Mr Sieff were present with the Applicant, the following was recorded:

“Cindy said we have offered Aviel to stay on WoW programme and he will receive what he is getting at the moment in terms of welfare. Cindy said that unfortunately, Aviel would not be able to eat at the Capri hotel. Rabbi Ash said that he wants to confirm that this is a policy across the board. Cindy said yes it is.”

[33] It is clear therefore that when the Applicant contrived the means to obtain food from the Capri Hotel he acted in contravention of the Respondent’s policy and procedures in order to obtain for his personal use the food that belonged to the Respondent in defiance of the said policy and numerous instructions to him to refrain from doing so. The finding of guilty with the sanction of dismissal was correctly made in the disciplinary hearing and I find so too.

[34] This finding can only have been disturbed if I had found that the Respondent used the opportunity to dismiss him by instituting the disciplinary action for the reasons alleged by the Applicant, essentially that the Respondent dismissed him because of having sought to assert and vindicate his rights through the circular dispute resolution forums instead of going through the Beth Din or

internal processes. This assertion can be dismissed merely on the fact that an independent labour law and employment law consultant was engaged which appointed one of its members to be an independent chairperson of these proceedings. It was therefore the decision of an independent chairperson of the disciplinary hearing that he was found guilty and that a sanction of dismissal was imposed. Had he been dismissed through a truly internal process where one of the Respondent’s employees or managers presided over the hearing it would have warranted a deeper consideration of the long history of disputes between the Applicant and the Respondent.

[35] Furthermore, in every notice of disciplinary action the Applicant was advised of his right to approach the CCMA if not satisfied with the outcome. The Respondent clearly had no problem with the Applicant exercising his rights as provided for in his contract of employment.

[36] Even if I were wrong with this conclusion, a consideration of the facts of this long unpleasant period between the Applicant and the Respondent, matters upon which I need not make a determination, it is clear that the Respondent did not at any stage go out of its way to get rid of him.

[37] The Applicant argued that the fact that the Respondent settled a number of these disputes is an indication that they admitted guilt or wrong doing in respect of all the matters that were settled with him. However, it is clear from the evidence tendered by the Respondent, in particular the evidence of Ms Krawchuk, that the Respondent was in fact continuing to show deep consideration and empathy with Applicant as a member of the Jewish community and that they wished to continue to offer him the assistance that the Respondent was created for. As Ms Krawchuk testified, the matters were settled with the Applicant because as a welfare organisation and having known the Applicant for all the period that he had been a recipient of welfare in the organisation they knew that he would not get work in the open labour market and that the organisation should continue to offer him a resemblance of dignity by receiving welfare from the organisation and keeping him on its programmes such as the WoW programme.

[38] Ms Tracey Mayhew, the General Manager: Protected Employment testified that even when an employee is dismissed, the organisation continues to offer them welfare under the WoW programme. Even if a person is removed from the Wow programme such a step is not permanent because the endeavour is always to help them to find the best solution for them. Such a person continues to receive charity

according to their needs. All their needs are catered for as clients of the organisation and are remunerated on a grant basis for any extra services that they render to the organisation. Rabbi Fox confirmed that the Applicant has been assisted as a recipient for welfare since 1997 and that he continued being a client after his contract of employment was terminated.

[39] I am satisfied also that despite the volatile relationship that the Applicant had with Weber, none of Weber’s conduct amounted to systematic harassment of the Applicant, depriving him of his dignity or violation of his religious beliefs. The Applicant participated in the programme devised by the Respondent and in compliance with Jewish law, and he violated the code and defied lawful and reasonable instructions. Weber left no doubt while giving evidence that he was a hard taskmaster. He is also, as both Mr Sieff and Ms Krawchuk testified, volatile. For this he had to submit to coaching and counselling in order to develop an acceptable management style and control of his temper.

[40] On the issue of begging, I need not make a definitive finding on this aspect. It was not referred to this court after the CCMA proceedings. I can only observe in this regard that:

40.1. When the Applicant participated in the WoW programme in July 2009 he agreed to be bound by the Respondent’s disciplinary code including not to solicit funds from members of the Jewish community.

40.2. The fundraising policy as at January 2014 also prohibits any form of begging and/or requesting of charity for personal gain in whatsoever manner from a staff member of the Chev to another staff member, resident or to a member of the public. Although Mr Sieff and Rabbi Fox were not as emphatic about these prohibitions as Ms Krawchuk, they all agreed that begging is intolerable by a person who receives welfare since the Respondent ensures that every member of the Jewish Community receives sufficient charity to cater for their needs and that it detracts from their ability to raise funds if people that they are meant to look after appear not to be properly or satisfactorily looked after.

40.3. Although it appears from the documents before court that the Applicant should not have been found guilty of the two charges of begging, the Applicant was unable to state categorically that the email to him explaining how Mr Crouse extended charity to him personally was placed before the Chairperson of the disciplinary hearing. The email was sent to the Applicant at 14h00 on the same day as the disciplinary hearing was held. In the absence of satisfactory evidence that the email was brought to the attention of the Chairperson or the Respondent I cannot make a definitive finding as to whether he should have been found guilty of this charge or not. I am unable therefore to find that this was another building block towards the objective of dismissing the Applicant. In any event this

disciplinary hearing was also presided over by an independent Chairperson.

40.4. In regard to psychiatric testing, I accept the evidence of Ms Krawchuk that the referral of the Applicant to a psychiatric evaluation was not because the Respondent considered the Applicant as mentally abnormal. The purpose was to further assist the Applicant in order to ensure that after his conduct, especially that of severely assaulting Mr Barry Greenberg, has been attended to appropriately and that he could be put back as an employee. It was fair and justified of the Respondent to do so in order to protect other employees and management.

40.5. Although the Applicant was emphatic that the written statement from Mr Malcolm Bryan Buskin dated 8 November 2013 was made available to the Chairperson of the disciplinary hearing Mr Weber could not recall that he had received it or whether it was available to the Chairperson. Buskin’s note states that it was he (Buskin) who had approached a Mr Anthony Barr for money and not the Applicant.

Conclusion

[41] I come to the conclusion therefore that the Respondent has discharged the onus that it bears in showing that all disciplinary matters that had been settled and all the complaints against the Respondent, in particular Weber, were not part of a stratagem to prejudice the Applicant with the ultimate aim of securing his dismissal as an employee of the Respondent. I also find that the Applicant is guilty as charged in respect of the charges of misappropriating the Respondent’s property in the form of the food that he obtained unlawfully and in contravention of the Respondent’s policy and code of conduct. Therefore the Respondent has succeeded in discharging the onus upon it that the Applicant’s dismissal is justified. It was for a fair reason and a fair procedure was followed. Even Weber had agreed with Ms Krawchuk that the Applicant can return to the cemetery once his abuse, aggression or violence has been satisfactorily addressed.

[42] The evidence shows that the Applicant has defiantly disregarded the Respondent’s food policy for a long period. His conduct is not merely a matter of having taken one meal from the Respondent that he is not entitled to. He has displayed defiance of policy and lawful and reasonable instructions which make it intolerable for the Respondent to continue any working relationship with him.

[43] Accordingly I make the following order:-

43.1. The Applicant is guilty of obtaining food from the Capri Hotel in breach of the Respondent’s policy that prohibited the applicant from obtaining food at the facility.

43.2. The Applicant is dismissed.

43.3. There is no order as to costs.

___________________________

G MALINDI

Acting Judge of the Labour Court

Appearances:

For Applicant: Adv Mohamed Desai

Instructed by: Nishlan Moodley Attorneys

For Respondent: Mr Daniel Berry (Employer Representative)

Member of: Guardian Employers Organisation (GEO)