Transnet SOC Limited t/a Transnet National Ports Authority v United National Transport Union and Others (D539/2022) [2024] ZALCD 2 (16 January 2024)

FLYNOTES: LABOUR – Dismissal – Sexual harassment – Alleged incident when two crew in cabin on ship – Arbitrator found dismissal substantively unfair and ordered reinstatement – Arbitrator was required to assess credibility of witnesses and to consider probabilities – Failed to conduct enquiries that were required – Misconstrued evidence before her – Award reviewed and set aside – Dispute remitted to bargaining council to be arbitrated de novo before another commissioner.

IN THE LABOUR COURT OF SOUTH AFRICA DURBAN

Case no: D539/2022

Not Reportable

In the matter between:

TRANSNET SOC LIMITED T/A

TRANSNET NATIONAL PORTS AUTHORITY

Applicant

and

UNITED NATIONAL TRANSPORT UNION

First Respondent

DUMISANI DUBE

Second Respondent

TRANSNET BARGAINING COUNCIL

Third Respondent

NONHLANHLA DUBAZANE N.O.

Fourth Respondent

Heard: 10 August 2023

Delivered: This judgment was handed down electronically by circulation to the parties and / or their legal representatives by email. The date and time for handing­ down is deemed 10h00 on 16 January 2024.

JUDGMENT

ALLEN-YAMAN AJ

Introduction

[1] The applicant seeks to review and set aside an award handed down by the fourth respondent ('the arbitrator') in terms of which she found that the dismissal of the second respondent had been substantively unfair, in consequence of which she ordered that he be reinstated to his employment with the applicant, and awarded him, after having varied her award, back pay for a period of five months ('the award').

[2] The second respondent, hereinafter referred to as the employee, was dismissed pursuant to having been found to have sexually harassed a fellow employee, who shall be referred to herein as the complainant.

[3] In assessing the fairness of the employee's dismissal the arbitrator was confronted with two competing versions, both of which could not be found to have been correct. It was her preference for the version of the employee, and her concomitant rejection of the version of the complainant, which led her to find as she did.

[4] The applicant's review is predicated upon the unreasonableness of the arbitrator's conclusion. The applicant's case is, generally speaking, that the arbitrator overlooked and misconstrued the import of certain of the evidence, which led her to conclude that the complainant was not a credible witness, this having being the basis upon which she found that the employee's version was to be preferred.

Background

[5] The services of the employee were terminated by the applicant on 7 April 2022 in consequence of having been called to a disciplinary enquiry and having been found to have committed the following allegations of misconduct,

'Charge 1

It is alleged that you are guilty of sexual harassment in that on the 15th of May 2021, you failed to ensure a safe and secure working

environment to one of your crew or officers (redacted) in that you made unwelcome sexual advances towards [the complainant] by hugging and touching her inappropriately without her consent. Your actions were in breach of clause 1, bullet 1 of Transnet's Sexual Harassment Policy, as well as clause 11.1.1 of Transnet's Code of Ethics.

Charge 2

It is alleged that you are guilty of impairing the dignity, integrity, privacy and right to workplace equity of [the complainant] in that on 16 May 2021 you, without her consent, forced yourself on her in an attempt to engage in sexual liaisons with her. Your conduct is one as precluded by clause 19.18 of the Transnet Disciplinary Code and Procedure for Managers.

Charge 3

You are allegedly guilty of unethical conduct in that as a senior officer on board the llembe on 16 May 2021, you invited a junior officer into your cabin whereafter you made unwelcome sexual advances knowing full well that such conduct was not in line with clauses 11.1.2 and 11.2.2 of Transnet's Code of Ethics.'

[6] Both the employee and the complainant had been scheduled to work aboard the vessel, llembe, on the occasion on which an incident occurred. Being assigned to work on this particular vessel necessitates that the crew sleep aboard, both the employee and the complainant having been provided with their own sleeping quarters.

[7] Whilst it was common cause that the complainant spent some time in the employee's cabin together with the employee during the night of 16 May 2021, how she had come to be there in the first place, and the events which transpired during the time they were together were in dispute.

[8] The employee's version was, in essence, that he had found the complainant in the mess room after he had returned from ashore. As it was then after 9:00pm he remarked that it was late, and it was time to go to sleep. They made their way back to their own respective cabins on the floor above the mess room together and, whilst they did so, they fell into conversation. The conversation which related to the complainant's relationship problems had not been concluded by the

time they reached his cabin, which was arrived at before hers. As their conversation had not yet finished, he invited her into his cabin for them to complete their discussion. Sitting together on the bunk in his cabin, she began to sob and he put his arm around her to provide her with some comfort. She repelled his hug, whereupon he immediately desisted. She left his cabin thereafter, Upon subsequently receiving a message from her in which she requested that he meet her in the office of the vessel, he did so. During this conversation she reiterated that she had not appreciated what he had done and he duly apologised, which apology she appeared to have accepted.

[9] The complainant, on the other hand, testified that the employee had found her, in the presence of other crew, in the mess room after 9:00 pm on the evening of 16 May 2021. The employee repeated to her that she was going to sleep in his cabin that night, which comment she simply disregarded. They walked back together to the cabins, which

were on the floor above the mess room. On the way there, the employee proceeded in front of her and reached his own cabin before she did. He pulled her into his cabin whereupon he attempted to rape her. She could not recall precisely how long her ordeal lasted until she managed to get away from him, but she recalled that when she checked the time in her own cabin it was around midnight. It was after certain discussions with other members of the crew that she called him to the vessel's office on 18 May 2021 where she informed him that she was not happy with his conduct on 16 May 2021. Although he then apologised, she did not feel that he had actually appreciated that what he had done was wrong, or that his apology was sincere.

Analysis

[10] As was stated, in finding that the employee's dismissal by the applicant had been substantively unfair, the arbitrator preferred the employee's version over that of the complainant. This she did on the basis of her conclusion that,

'The evidence points to that the complainant was not frank, honest and candid. My observation of her demeanour at the arbitration is such that she was not a credible witness.'

[11] Whilst the employee is correct that this court ought to exercise considerable restraint when interfering with credibility findings made by a trier of fact such as the arbitrator, this does not mean that such findings are unassailable. Where credibility findings are made on the basis of an erroneous assessment of the evidence, such findings are bound to be set aside,

'Whilst a court of appeal is generally reluctant to disturb findings which depend on credibility it is trite that it will do so where such findings are plainly wrong. This is especially so where the reasons given for the finding are seriously flawed. Over­ emphasis of the advantages which a trial court enjoys is to be avoided lest an appellant's right of appeal 'becomes illusory'. It is equally true that findings of credibility cannot be judged in isolation but require to be considered in the light of the proven facts and the probabilities of the matter under consideration.'[1]

[12] Although stated with reference to appeal processes, there is no reason why the same principle ought not to apply to review applications, the point of departure being that the credibility finding which is sought to be disturbed must be shown to be one which was arrived at in consequence of conclusions which no reasonable decision maker could have arrived at.

[13] The applicant's case underpinning its complaint concerning the unreasonableness of the arbitrator's conclusions regarding the complainant's credibility relates to both her factual findings as well as her failure to have considered the probabilities.

[14] Insofar as her treatment of the evidence was concerned, this included:

• Her failure to have taken into account that the complainant's evidence regarding certain statements which were alleged to have been made by the employee were not challenged by him in cross-examination;

• The contradiction between the versions of the employee's witnesses, Ms Mngomezulu and Ms Zikhali, concerning the discussion between the complainant and themselves whilst they had been away in the Drakensburg, which was put to the complainant, and the evidence they ultimately gave, together with the fact that the complainant's evidence concerning these discussions had not been contested in the course of cross-examination;

• Her treatment of the evidence of the investigator, Ms Citi; and

• Her failure to have appreciated that it was not only the complainant's written statement which had not contained the particularity of the evidence which she ultimately gave at the arbitration, but that the self-same consideration applied to the employee.

[15] Insofar as the probabilities were concerned, it was the applicant's case that, had the arbitrator given any consideration to this issue she would have been constrained to have concluded that the probabilities favoured the complainant's version in light of the fact that she reported the incident to the chief engineer on board the llembe the following day, which report would not have been made had no more than an hug been inflicted on her.

[16] The point at which the arbitrator commenced her enquiry was based on her understanding of the import of the judgment in Xstrata South Africa (Pty) Ltd v Federated Mining and Allied Industries Union obo Mokgotlo and Others (J937/13) (2016), being that,

'... in an evaluation of two conflicting versions, there must be a determination of relative probabilities of each version and in so doing considerable weight must be placed on uncontested evidence.'

[17] That was not the finding of this court, which had stated,

'I agree with the applicant that before delving into issues of credibility, an arbitrator should decide if the matter can be decided

on the relative probabilities of the versions. However, where Palala's version of what the employee said was uncontradicted at

either the disciplinary enquiry or the arbitration and likewise her version of what she said to the security manager was also uncontradicted, it is difficult to see how the arbitrator could evaluate the central question whether she was guilty of theft without

considering questions of credibility. The reason for this is that if the employee never altered her explanation for having the soap from the time it was found in her possession until her statement at the disciplinary enquiry, it necessarily follows that Palala must have fabricated his version of what she said to him. On the other hand, if the uncontradicted version of what she explained to Palaia is accepted, then it casts serious doubt on her version that she gave an exculpatory explanation to the security manager and it is more likely that this version only emerged at the disciplinary enquiry for the first time.’[2]

[18] Albeit that it was open to the arbitrator to adopt an approach which she determined appropriate in the circumstances, having elected to utilise a legal test in the determination of which of the two versions to prefer, the approach established by the Supreme Court of Appeal in Stellenbosch Farmers' Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA), regarding the determination of conflicting versions is that which is accepted as being applicable,

'On the central issue, as to what the parties actually decided, there are two irreconcilable versions. So too on a number of peripheral areas of dispute which may have a bearing on the probabilities. The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness's candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b}, a witness's reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party's version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court's credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail.'[3]

[19] The arbitrator was accordingly required to assess not only the credibility of the all the factual witnesses, together with their reliability, but was also required to consider the probabilities as a whole. Insofar as credibility was concerned, she was required to consider the inherent probability or improbability of the versions given.

[20] In having concluded that the complainant's version was to be rejected the arbitrator considered the evidence pertaining to, inter alia, the following issues:

• The statements alleged to have been made by the employee upon having entered the mess room

• The question regarding who had been present in the mess room when the employee had first entered and found the complainant there;

• How the complainant came to be inside the employee's room; and

• That which the complainant was wearing at the time of the incident;

[21] Regarding the first issue, it was the complainant's evidence that, upon entering the mess hall in the evening of 16 May 2021 at some time after 9:30pm, the employee had stated, "You are going to my cabin tonight since you are not asleep anyway." Although the employee did not admit to having made such a statement in his evidence in chief, the complainant's version that this statement had been made, and repeated, was not contested in the course of cross- examination.

[22] The applicant is correct that the arbitrator failed to appreciate that this aspect of the complainant's evidence had remained unchallenged. More than this, she failed to resolve what she perceived to be a dispute between the two, which dispute had only arisen only in the course of the employee's subsequent evidence,

'Now we are left with a situation whereby it is the complainant's word against that of the Applicant regarding what the Applicant said to her in the mess room.'

[23] The complainant's evidence as to who had been present in the mess room was also unchallenged in cross examination. It had been her evidence that four lower ranking crew members had been present when she had first entered the mess room, who were then occupied watching television. She testified further that one of these people had departed to take a telephone call. Her evidence was, in fact, borne out by the statements which the employee admitted having made when he subsequently testified that upon entering he had addressed those present,

'I said, How, people are not sleeping now, it's too late, people we have to go and sleep.'

[24] As his own evidence demonstrated that he had addressed more than one person when he entered the mess room, his evidence that he and the complainant had been alone at the time was inconsistent with this. As to what each had informed the investigator, Ms Citi, neither the complainant nor the employee were called upon to address this issue, notwithstanding that this issue had been contained in her report.

[25] The arbitrator's statements concerning the issue of how the complainant had come to be in the employee's cabin evinced a failure on her part to have appreciated the nature of the evidence before her as well as the context in which it was given,

'The question I ask myself is: ''how is it possible that all four of the Respondent's witnesses gave different versions relating to how the complainant ended up in the Applicant's cabin? The next question is: "which version should be accepted as the correct version?"

[26] The complainant was the only one of the applicant's witnesses to testify directly as to what had transpired to have led her to be in the employee's cabin. The remaining witnesses' evidence was limited to that which they recalled as having been told by the complainant. Properly considered in this context the differences in the versions lay only in their minutia, and not in their essence. Consistent, despite the retelling by the various witnesses, was the complainant's version that whilst walking together to their respective cabins, the employee managed to get ahead of her, reached the door to his cabin

first which he opened, and forced her inside.

[27] The arbitrator also took issue with the statements made by the various witnesses as to what the complainant had been wearing at the time of the incident.

[28] As with the events which occurred inside the employee's cabin, the complainant and the employee were the only individuals who could have given direct evidence concerning that which the complainant had been wearing on the evening in question. It had been the complainant's evidence that she had been wearing spandex type pants, a bra, a long sleeve t-shirt and a navy, sleeveless fleece. She testified further that she had destroyed the clothes that she had been wearing that night, and brought similar clothing to the arbitration for the purposes of showing the arbitrator. None of her testimony concerning her clothing was challenged by the employee in cross-examination and nor did he offer an alternative version in his own evidence.

[29] Two further witnesses who gave evidence regarding her clothing, Mr Mbambo and Ms Maphumulo, had not themselves observed what the complainant had been wearing that evening, but relayed only that which they recalled as having been relayed to them by the complainant. Ms Citi testified that the complainant had informed her that she could not remember what she had been wearing.

[30] Rather than assessing the veracity of the complainant's evidence, together with the statements of others as to what the complainant had allegedly told them had happened, as part of what ought to have been her assessment of the credibility of the complainant (in light of the apparent external contradictions to the complainant's own unchallenged version), the arbitrator proceeded to consider which of the two versions regarding the complainant's attire, as between that of the complainant and that of Mr Mbambo, she should prefer.

[31] Not only could Mr Mbambo not have provided any factual evidence as to what the complainant had been wearing, but in order for the arbitrator to have found that his evidence that the complainant had told him that she had been wearing jeans (albeit that the complainant herself had never been called upon to comment on this issue) was to be preferred necessitated that she undertake an assessment of his credibility, which she failed to do. Had she done so she would have been obliged to have considered issues such as his potential for bias, given his relationship with the employee, his potential to have sought to avoid admission of his own apparent complicity, given the complainant's unchallenged evidence that she had approached him for assistance the day after the incident which assistance he had declined to provide, and his motives, given that it had been the complainant's further unchallenged evidence that he had been one of three people to have telephoned her prior to the employee's dismissal in an effort to persuade her not to continue with the case.

[32] The applicant's further complaint concerning the manner in which the arbitrator treated the apparent deficiencies in the complainant's written statement in contrast to her detailed evidence has merit. Whilst the totality of her evidence may not have appeared in her written statement, there was no contradiction between that which had been recorded therein and the evidence she ultimately gave. This aspect was therefore not a reason which ought to have contributed to the arbitrator having disbelieved her entire version.

[33] Moreover, the same was equally true of the employee, whose written statement was devoid of the any of detail which he subsequently

furnished at the arbitration. Without mention of the nature of the conversation they were allegedly having or that the complainant

allegedly commenced sobbing when in his cabin, the totality of the employee's recollection of the events which transpired in his cabin on 16 May 2021 as recorded in his written statement constituted,

'Then we went upstairs using the stairs and chatting. While we were upstairs next to my cabin I asked her to go inside my cabin so that we can continue chatting.

Then we went inside and we sat on the bunk. We were sitting close to each other while we talking. Then I hugged her close to me. Then she told me that she didn't like what I was doing. Then she requested to leave my cabin to her cabin.'

[34] In light of the above, it is evident that the arbitrator not only failed to conduct the enquiries she was required to undertake, but misconstrued the evidence before her. It cannot be said that the aforementioned did not affect her finding in regard to the

complainant's credibility. As the award was premised on her preference for the employee's version in favour of that of the complainant, by virtue of her finding regarding the complainant's credibility, the award falls to be reviewed and set aside.

[35] The applicant asked that the award be substituted with an order that the dismissal of the employee be found to have been substantively fair. Such request was premised on the applicant's argument that where the credibility of the employee and the complainant cannot be set apart, the probabilities ought to have prevailed. This, in circumstances in which this aspect was not even considered by the arbitrator.

[36] Whilst this proposition accords with the Stellenbosch Farmer's Wineries test, for this court to determine the matter on the probabilities alone, the credibility of the respective witnesses must be incapable of distinction. Whilst this court has found that the arbitrator's findings concerning the complainant's credibility were unreasonable, this does not automatically translate to a finding of equality in relation to the credibility of the complainant and the employee.

[37] To make such a finding would require this court to assess the issue by consideration of the factors detailed in Stellenbosch Farmer's Wineries, the majority of which were not dealt with by the arbitrator, and are incapable of assessment on the basis of the record alone. This being so, this court cannot substitute its own findings regarding the credibility of the respective witnesses and arrive at a conclusion that they are equally balanced.

[38] In the circumstances, this court cannot determine the matter on the preponderance of probabilities alone. This being the case, the dispute will be required to be remitted to the third respondent to be arbitrated de novo before a commissioner other than the arbitrator.

Costs

[39] Although both parties sought the payment of their respective costs, this court is not of the view that this is a matter which warrants any order as to costs.

Order

1. The arbitration award handed down by the fourth respondent under the auspices of the third respondent on 9 September 2022 and varied on 15 September 2022 under case reference TNBC 78-22 is reviewed and set

aside.

2. The dispute referred to the third respondent by the second respondent and allocated case reference TNBC 78-22 is remitted to the third respondent to be arbitrated de nova before a commissioner other than the fourth respondent.

3. There is no order as to costs.

Kelsey Allen-Yaman

Judge of the Labour Court of South Africa

APPEARANCES:

APPLICANT: Mr R D Haslop, Woodhead Bigby Attorneys RESPONDENT: Mr M J van As, briefed by Fluxmans Inc

[1] Santam Bpk v Biddulph [2004] 2 All SA 23 (SCA) at paragraph 5, citations omitted

[2] At paragraph 23

[3] At paragraph 5