Pioneer Foods (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR2558/19) [2023] ZALCJHB 194; (2023) 44 ILJ 2281 (LC) (8 June 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable Case No: JR2558/19

In the matter between:

PIONEER FOODS (PTY) LTD Applicant and COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION First Respondent L.D. MAHLANGU N.O Second Respondent LEONARD VERWEY Third Respondent

Heard: 25 April 2023

Delivered: 8 June 2023

JUDGMENT

MAKHURA, AJ

Introduction

[1] On 29 October 2019, the second respondent (arbitrator), acting under the auspices of the Commission for Conciliation, Mediation and Arbitration (the CCMA), issued an arbitration award in terms of which he found the dismissal of the third respondent (the employee), to be procedurally and substantively unfair, and ordered Pioneer Foods (Pty) Ltd (the company) to reinstate the employee with full back-pay.

[2] The company launched these proceedings in terms of section 145 of the Labour Relations Act[1] (LRA) to review and set aside the award. In addition, the company seeks to substitute the award with an order declaring that the employee’s dismissal was substantively and procedurally fair, alternatively remitting the matter to the CCMA for arbitration afresh before another arbitrator. The application is opposed by the employee.

Background facts

[3] The genesis of this matter is the grievance lodged by Ms B (the complainant) on 13 February 2019, contained in an email to Deon Van Zyl (Van Zyl), the company’s Operations Manager. The complainant wrote that she has had previous issues with the employee regarding verbal abuse and inappropriate comments. She then complained about an incident that took place on 11 February 2019 in which the employee approached her and said she must ensure that she wears the correct underwear when wearing white pants to avoid giving the wrong impression at work. She continued to set out her grievance as follows:

‘Verbal abuse (verbal attack or verbal assault) is when he “Leonard” forcefully criticizes, insults, or denounces myself openly or in meetings. Characterized by underlying anger and hostility, it is a destructive form of communication intended to harm the self-concept of myself and produce negative emotions. This have (sic) been discussed with Neville, Franco and yourself in the past. All I asked was that this please stop, but still it continues.

Sexual harassment behaviour characterised by the making of unwelcome and inappropriate sexual remarks or physical advances in a workplace, I link this to the comments about me and you as well as his comments about what underwear I’m wearing.’

[4] On 18 February 2019, the employee was informed of the grievance, and that a grievance meeting with the investigator was scheduled to take place on 19 February 2019.

[5] The grievance meeting took place on 19 February 2019. After the meeting, the investigator recommended that the matter be referred to a disciplinary hearing. On the same day, the complainant completed a grievance form confirming that her grievance is as contained in the email of 13 February 2019. The dates on which the incidents complained of occurred were recorded as December 2018 and 11 February 2019.

[6] On 27 February 2019, the employee was issued with a notice to attend a disciplinary hearing, scheduled for 4 March 2019. He was charged with the following allegation of misconduct:

‘ALLEGED MISCONDUCT(S): As described in the Disciplinary Code or otherwise:

Sexual Harassment, in that on a number of occasions, you made unwelcome and inappropriate sexual remarks to your colleague, Ms M B.’

[7] On 28 February 2019, the employee discussed the matter with the Human Resource Manager, Lindelwa Dhlamini (Dhlamini). This discussion was followed by an email from the employee in which he recorded that, during the investigation process, there were two allegations of misconduct – sexual harassment and verbal abuse. Referring to the charge sheet, he enquired if there were other occasions the company was referring to and if so, requested further particulars. In response, Dhlamini informed the employee that the charges were as a result of the investigation or grievance and that he would be given an opportunity to cross- examine the witnesses.

[8] The disciplinary hearing commenced on 4 March 2019 and was finalised on 28 March 2019. The evidence led during the disciplinary hearing related to three incidents of alleged sexual harassment, namely: (1) the December 2018 rumours of an affair between the complainant and Van Zyl; (2) the February 2019 white pants comment; and (3) the ‘cheating men’ email.

[9] On 22 April 2019, the chairperson of the disciplinary hearing issued the outcome and recommendation on sanction. She found as follows:

‘On the evidence before me I find that Leonard’s conduct over the period December 2018 to February 2019 amounted to sexual harassment which was unwelcome and impaired the dignity of M, and that he have (sic) known this.’

[10] Having found the employee guilty, the chairperson recommended a sanction of dismissal. The employee was dismissed on 30 April 2019. His appeal was unsuccessful.

The arbitration proceedings

[11] Aggrieved by the findings and sanction, the employee referred an unfair dismissal dispute to the CCMA challenging the fairness of his dismissal. The dispute was unresolved at conciliation and was later referred to arbitration.

[12] In addition to the evidence in respect of the three incidents referred to above, the company led evidence on a multitude of incidents that were not part of the disciplinary hearing – referred to as the Mauritius trip, the swingers, Kempton Park shopping centre, below the belt picture, TV show and song. The result was that the company tried to prove the fairness of the employee’s dismissal with an additional 6 incidents of alleged sexual harassment which were not part of the disciplinary hearing and were not considered by the chairperson of the disciplinary hearing.

[13] I proceed to deal with the evidence adduced in respect of the three incidents below.

December 2018 rumour of an affair

[14] The rumour of an affair between the complainant and Van Zyl was known by other employees, including Roshan Aarau-Abdul (Roshan). The complainant was also aware of the rumour.

[15] In December 2018, the employee informed the complainant that there were rumours of her having an affair with Van Zyl. The complainant was asked the following question during examination in chief:

‘Ma’am then there were rumours that did the rounds, of you and Deon. Now let’s just ascertain who is Deon exactly.’

[16] After responding that Van Zyl is the Operations Manager, she was asked to testify about the nature of the rumour. Her response was as follows:

‘Well it is something that I have heard. I was looking for Deon one day because there was something that I had to discuss with him. So Leonard and the rest of the team were standing in Roshan’s office and I was asking where is Deon and they said no they don’t know.

And somehow he replied that there is already rumours about you and Deon going about.’ (Own emphasis)

The white pants comment

[17] The material evidence relating to this incident is not in dispute. The company’s witness, Roshan, testified that on the day of the incident, she could see the complainant’s undergarment through her white pants. She then told the employee, who later approached the complainant and informed her to be careful when wearing white as what

she wears underneath tends to ‘shine’ through. Before saying these words, the employee asked the complainant to not take what he was about to tell her personally because he was not ‘fighting’.

[18] The complainant’s evidence was as follows:

‘That specific day I was wearing white pants. It was about a quarter to four, Leonard came to my office, he said to me I must be careful whenever I am wearing white pants, I need to make sure that I am wearing the right underwear because it might give the wrong impression.’

[19] Under cross-examination, the complainant did not dispute the version put to her that the employee approached her and enquired if he could offer some advice, indicated that he did not want to fight with her, and proceeded to say that she should watch what she wears “underneath white because it has tendency to shine through”. The employee disputed the phrase used by the complainant that it would give a wrong impression.

The ‘cheating men’ email

[20] The employee sent the complainant an article titled ‘cheating men’. In her examination in chief, the complainant testified that the article was sent to her alone.

[21] During cross-examination, the complainant testified that, because the email or article was addressed to her email alone, she perceived it as being meant for her alone. She however conceded that the employee has sent the same article to other female colleagues, including Roshan, who found the article interesting.

The 6 additional incidents

[22] The arbitrator has addressed these incidents in his award. Because of the view I take, which will become clear later in this judgment, it is not necessary for me to address these incidents.

The award

[23] The arbitrator started his analysis of the evidence by referring to clauses 4 and 5.3 of the Code of Good Practice on the Handling of Sexual Harassment in the Workplace (Code), before proceeding to deal with each incident.

[24] On the allegation of an affair between the complainant and Van Zyl, the arbitrator found that there was no evidence to sustain the allegation.

[25] Regarding the white pants incident, he found that the employee was insensitive in the way he broached the issue, and did not give due consideration to the complainant’s personality.

[26] The arbitrator found that the ‘cheating men’ email or article was not only sent to the complainant but was sent to other employees and that it was information of a general nature.

[27] On procedural fairness, the arbitrator criticised the company for not conducting the informal and formal procedure provided for in its grievance procedure. He found that by electing not to follow this procedure, the company deprived itself of an opportunity to gain a full grasp of the nature of the complaint.

[28] Having found the dismissal substantively unfair, the arbitrator awarded reinstatement after consideration of the employee’s length of service and the fact that the employee sought to be reinstated.

The grounds of review

[29] The company’s first ground of review is that the arbitrator considered the evidence on a piecemeal basis. To substantiate this ground, the company argued that the arbitrator’s finding that there was no evidence that the employee spread rumours of a relationship between the complainant and Van Zyl ignored the evidence of one of its witnesses (Budharram), who testified that he heard about the alleged affair from the employee. The company then argues that the arbitrator failed to resolve the issue of the employee’s credibility, and that this is a reviewable irregularity. In addition, the company argues that the arbitrator failed to consider evidence relating to the ‘cheating men’ email within the full conspectus of all the evidence led before him.

[30] The second ground is that the arbitrator failed to consider the probabilities. The relevant arguments presented are that the relationship rumour incident shows that the employee had an unhealthy obsession with the complainant, and that the arbitrator concluded that there was no evidence to substantiate this charge without assessing the probabilities and weighing the competing versions of Budharram and the employee.

[31] The third ground is directed at the finding that the dismissal was procedurally unfair. The company argues that this finding is unreasonable because disciplinary hearings are not criminal trials and that the employee was provided with sufficient particularity to respond to the charge.

[32] The company’s fourth ground of review is that the arbitrator committed a reviewable irregularity by ordering reinstatement. The company argues that the arbitrator failed to consider the circumstances around the dismissal and whether the employment relationship with the complainant would be intolerable. The company argued that the complainant’s evidence of uneasiness around the employee, and that she would resign if the employee were to be reinstated, constitutes reasonable grounds for a finding that reinstatement would be intolerable.

[33] In its heads of argument, the company raises for the first time an additional ground of review that the arbitrator failed to properly apply the Code. To support this, the company relied on the finding made in respect of the Mauritius incident.

The legal principles

[34] The review test is well established. The question before this Court is as follows - “[i]s the decision reached by the commissioner one that a reasonable decision-maker could not reach?”[2]

[35] The Supreme Court of Appeal clarified the test as follows:

‘In summary, the position regarding the review of CCMA awards is this: A review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in s 145(2)(a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable.’[3]

[36] The Labour Appeal Court (LAC) in Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and others (Fidelity Cash Management), held that this is a stringent test:[4]

‘The [Sidumo] test… is a stringent test that will ensure that such awards are not lightly interfered with. It will ensure that, more than before, and in line with the objectives of the Act and particularly the primary objective of the effective resolution of disputes, awards of the CCMA will be final and binding as long as it cannot be said that such a decision or award is one that a reasonable decision maker could not have made in the circumstances of the case. It will not be often that an arbitration award is found to be one which a reasonable decision maker could not have made…’

[37] The Constitutional Court in Booi v Amathole District Municipality and others[5] (Booi) emphasized the reason the Legislature adopted the review procedure instead of appeal and cautioned this Court from undermining these imperatives. The Constitutional Court said that awards are intended to be final and should not be treated as a “mere box-ticking exercise”, and that this Court should be alert to appeals that are disguised as review applications.[6]

[38] Reflecting on the review test, Sutherland JA recently also cautioned the review court not to yield to the seductive power of a lucid argument that a different result might have been reached, as that is the luxury reserved for the appeal court.[7]

Evaluation

[39] Sexual harassment is defined in the Code as “unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace”. What this means is that there must be conduct, that is unwelcome and of a sexual nature. Once it is established that the unwelcome conduct is of a sexual nature, the next enquiry is to consider if the conduct violates the rights of the complainant and whether it constitutes a barrier to equity in the workplace.

[40] Factors to be considered when enquiring whether there has been sexual harassment are whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation, whether the sexual conduct was unwanted or unacceptable, the nature and extent of the sexual conduct and the impact of the sexual conduct on the complainant employee.[8]

[41] The company argues that the arbitrator’s finding that there was no evidence to support the charge ignored the evidence of Budharram that he heard about the alleged affair from the employee. The arbitrator is then criticized for allegedly failing to resolve the employee’s credibility. The company’s case is baseless. To agree with this argument, one would have to find that the employee spread the rumour, that the rumour was false and that his conduct of allegedly spreading the rumour was unwelcome and of a sexual nature. The complainant was already aware of the rumour. There is no evidence that the employee started the rumour. That, for me, is the end of the enquiry. Accordingly, there was no evidence of sexual harassment. In any event, even if the employee started the rumour, I do not agree that this conduct constitutes sexual harassment. The arbitrator could not be required to assess the probabilities when the evidence presented failed to raise a credible possibility to sustain the charge of sexual harassment. I find nothing irregular with the arbitrator’s finding.

[42] The ‘cheating men’ email was about an article that the employee forwarded not only to the complainant but to other employees. The company submitted that the arbitrator was required to consider the full conspectus of the evidence. I have difficulties comprehending this argument. The arbitrator considered and analysed the evidence presented in respect of each incident. It is not in dispute that the article is in the public domain. Asked about how she felt about the email with the article, the complainant said that she was surprised to receive the article and was wondering what the

employee wanted to tell her, whether he wanted to tell her that it was “okay … to cheat on [her] husband, with him, with Deon. What did he want”. The employee’s evidence was that he sent the article to the complainant to comfort her after the complainant informed him that her husband was having an affair.

[43] The arbitrator said that the complainant may have found the content of the article to be of sexual nature. Although not expressly finding that this did not constitute sexual harassment, it is, in my view, apparent from the award that the arbitrator does not find this incident to constitute sexual harassment. Regardless, I am unable to find any gross irregularity on the part of the arbitrator that warrants interference with the award.

[44] The alleged failure on the part of the arbitrator to apply the Code was not part of the company’s pleaded case. Even if it was, I find that these arguments are without merit. In any event, the company relies on one of the 6 additional incidents, which I address later.

[45] The attack on the finding of procedural unfairness is that the employee was provided with sufficient opportunity to present his case. The arbitrator’s finding that the dismissal was procedurally unfair is based on the company’s failure to exhaust the grievance procedure. In my view, the finding of procedural unfairness was made without due consideration of the fact that the employee had an opportunity to present his case during the disciplinary hearing and was not prejudiced. Although irregular, this finding has no distorting effect and does not warrant the review and setting aside of the award.

[46] Turning to the reinstatement award, section 193(1) of the LRA gives the arbitrator or Labour Court discretion to order reinstatement, re-employment or compensation.

[47] In Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others,[9] the Constitutional Court reiterated the trite principle that, upon a finding that the dismissal is unfair, the next enquiry is to consider which one of the remedies listed in section 193(1) is appropriate, having regard to the meaning of section 193(2). The Court held that the arbitrator or Labour Court cannot adopt the attitude that dismissal is unfair, therefore, reinstatement must follow. The Labour Court or an arbitrator should carefully consider the remedies set out in section 193(1) as well as the effect of the provisions of section 193(2) before deciding on an appropriate remedy, as reinstatement may not be granted if it is not “reasonably practicable for the employer to reinstate or re-employ the employee”.

[48] In Booi, the Constitutional Court said the following about reinstatement as a remedy:

‘There are good reasons that reinstatement is lauded as the primary and commonplace remedy that accompanies findings of substantively unfair dismissals. It would be wholly unpalatable to our Constitution’s commitment to the right to fair labour practices if employers were permitted to unfairly dismiss their employees, exonerated of allegations of misconduct, via the back door of disingenuous and last-minute allegations pertaining to an intolerability of a continued employment relationship. It is incumbent on employers to follow proper procedures and respect the labour rights of their employees…’[10]

[49] The attack on an award of reinstatement is based mainly on the complainant’s views about the employee. The complainant testified that she would not work with the employee and would resign if he is reinstated. The employee has sought reinstatement. He is not guilty of the charge for which he was dismissed. The employer was required to adduce evidence to demonstrate that it was not reasonably practicable to reinstate the employee or that a continued employment relationship was intolerable. This, it has not done. Therefore, nothing inhibited the arbitrator from awarding reinstatement. This

Court must not interfere with an award of reinstatement merely because the complainant, whose evidence failed to sustain the charge,

threatens to resign. Accordingly, the finding of the arbitrator is unassailable.

De novo hearing and reason for dismissal: the 6 additional incidents

[50] In Sidumo and another v Rustenburg Platinum Mines Ltd and others,[11] the Constitutional Court held that, in approaching the dismissal dispute, a commissioner must consider the reason the employer imposed the sanction of dismissal, as he is required to take into account the basis of the employee's challenge to the dismissal.[12]

[51] The commissioner is required to determine the fairness of dismissal based on the reason or reasons given by the employer at the time of dismissal. In Fidelity Cash Management,[13] the LAC reiterated this trite principle:

‘It is an elementary principle of not only our labour law in this country but also of labour law in many other countries that the fairness or otherwise of the dismissal of an employee must be determined on the basis of the reasons for dismissal which the employer gave at the time of the dismissal...’

[52] In Samancor Chrome Ltd (Eastern Chrome Mines) v Commission for Conciliation, Mediation and Arbitration and others,[14] the employee argued that the employer deviated from the reasons for which he was dismissed by including allegations of misconduct which were not part of the charge sheet. The LAC held that:

‘The arbitration hearing is one de novo with there being no bar on relevant additional evidence being adduced at arbitration. This is so since the determination of the fairness of a dismissal at arbitration ‘is not reached with reference to the evidential material that was before the employer at the time of its decision but on the basis of all the evidential material before the arbitrator’. It is however not open to an employer to alter or amend the reason for dismissal or to rely on an entirely different reason for such dismissal at arbitration; and there is no merit in the appellant’s submission that the employee’s misconduct ‘must be viewed through the prism of the contextualised version during the course of the domestic hearing and subsequent arbitration proceedings’. To the extent that this suggests that it is permissible for the reason for dismissal to morph from that advanced by the employer at the time of dismissal to a different reason advanced at arbitration, this is simply not the case.’[15] (Emphasis added)

[53] The charge sheet was couched in broad terms. This prompted a request for further particulars on the part of the employee. The employee specifically requested clarity if the charge related to the two allegations set out in the grievance lodged by the complainant, and that if there were “other occasions as well”, he would like to know so that he may properly prepare himself. The response to this pertinent request was that the “charges are as a result of the investigation (grievance) that was conducted”.

[54] Indeed, the charge and evidence led during the disciplinary proceedings were in relation to the grievance and investigation – the three incidents already referred to above. The employee was subsequently dismissed based on the three incidents, and nothing more.

[55] The question is what this Court should make of the fact that the company led evidence outside the three incidents in its attempt to justify the dismissal of the employee. The employee did not seriously object to the presentation of this evidence nor did the arbitrator seek to intervene. The arbitrator notes in the award that the employee argued that the charges against him evolved during the disciplinary and arbitration proceedings.

[56] The legal principle enunciated above is unambiguous. Employers are not allowed, during the arbitration proceedings, to seek to justify the dismissal based on reasons outside those given during the internal hearing. The fact that arbitration proceedings are de novo hearings is not a license for employers to bring new facts and reasons that are disconnected from, and different to, the reason given for the employee’s dismissal.

[57] In the current matter, this is what the employer has done. The arbitrator was therefore not obliged to entertain these 6 incidents on the basis that they did not form part of the reason for the dismissal. These 6 incidents constitute new and different reasons. They are not relevant additional evidence to the three reasons for the employee’s dismissal. Accordingly, the 6 incidents are irrelevant to the enquiry of the fairness of the employee’s dismissal.

[58] The fact that the arbitrator considered these incidents when he was not required to, does not make the award susceptible to review. As the LAC said in Head of Department of Education v Mofokeng and others:

‘[32] …Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived enquiry or a decision which no reasonable decision maker could reach on all the material that was before him or her.

[33] Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the enquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result…’[16]

[59] What is clear from this judgment and many others cited above is that if the alleged irregularities or errors are not material to have a distorting effect, the award would pass the reasonableness test. Having considered the above, and the decision that I arrived at in respect of the 3 incidents, the arbitrator’s decision to consider this evidence is of no material consequence because he nevertheless reached a reasonable decision. In the final analysis, a fair reading of the award in the context of the evidence presented during arbitration proceedings can only lead to one conclusion – the arbitrator’s decision falls within the band of reasonableness.

[60] Therefore, not only did the arbitrator not commit any defect in terms of section 145 of the LRA, even if he had, given the evidence before the arbitration, the arbitrator nonetheless reached a reasonable decision. In the result, the application must fail.

[61] In the premises, the following order is made:

Order

1. The application is dismissed.

2. There is no order as to costs.

M. Makhura

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr. J Jorge of Cliffe Dekker Hofmeyr Inc.

[1] Act 66 of 1995, as amended.

[2] Sidumo and another v Rustenburg Platinum Mines Ltd and others (2007) 28 ILJ 2405 (CC) at para 110.

[3] Heroldt v Nedbank Ltd (Congress of SA Trade Unions as amicus curiae) (2013) 34 ILJ 2795 (SCA) at para 25; See also: Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and others (2014) 35 ILJ 943 (LAC) at paras 16 – 21; Head of Department of Education v Mofokeng and others (2015) 36 ILJ 2802 (LAC) (Mofokeng) at paras 30 – 33.

[4] (2008) 29 ILJ 964 (LAC) at para 100.

[5] (2022) 43 ILJ 91 (CC).

[6] Ibid at paras 51 and 52.

[7] Makuleni v Standard Bank of SA and others (2023) 44 ILJ 1005 (LAC) at para 4.

[8] Item 4 of the Code.

[9] (2016) 37 ILJ 313 (CC) at paras 135 and 136.

[10] Booi supra at para 62.

[11] Sidumo supra.

[12] Ibid at para 78.

[13] Fidelity Cash Management supra at para 32. See also Rennies Distribution Services (Pty) Ltd v Bierman NO and others (2008) 29 ILJ 3021 (LC) at para 15.

[14] (2020) 41 ILJ 2129 (LAC).

[15] Ibid at para 10.

[16] Mofokeng supra at paras 32 – 33.