V v Passenger Rail Agency of South Africa (PRASA) and Others (P60/2018) [2020] ZALCPE 6 (7 February 2020)

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

THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH

Not Reportable

case no: P 60/2018

In the matter between:

C[…] V[….] Appellant

and

PASSENGER RAIL AGENCY

OF SOUTH AFRICA (PRASA)

First Respondent

SIKHUMBUZO MBATHA Second

Respondent

COMMISSIONER TOBY MARE N. O Third

Respondent

Heard: 6 February 2020

Delivered: 7 February 2020

Summary: An appeal in terms of section 10 (8) of the Employment Equity Act[1] (EEA) – an appeal in a strict sense – a re-hearing of the merits to determine the correctness of the award. The question to be resolved in this appeal is whether discrimination (sexual harassment) did take place as alleged and if it took place whether it is rational; fair or justifiable. Held (1): The appeal is dismissed. Held (2): No order as to costs.

JUDGMENT

MOSHOANA, J

Introduction

[1] Section 5 of Act 47 of 2013[2] inserted section 10 (6) (aA). In terms thereof, an employee may refer a dispute to the CCMA for arbitration if the employee alleges unfair discrimination on the grounds of sexual harassment[3]. In terms of section 10 (8) of the EEA, a person affected by an award made pursuant to a dispute contemplated in subsection 6 (aA) may appeal to this Court within 14 days of the date of the award. The impugned award was rendered on 14 February 2018. Appeals to this Court are regulated by rule 9 of the Labour Court Rules. The Rules provides that the notice of appeal must be filed within 10 days of the decision to be appealed unless the Act provides otherwise. The Act referred to in the rules is the LRA and its regulations[4]. The notice of appeal in this matter was filed on 23 February 2018. The appeal stands opposed by the first respondent. The appeal was enrolled before me on the opposed roll.

Background facts pertinent to this appeal

[2] Mr Skhumbuzo Mbatha (Mbatha), the second respondent before me is a male employee, who at the time of the alleged incidents was part of a team which was tasked with the investigation on allegations of fraud and misconduct in the Eastern Cape province. His base office was in the Kwazulu Natal province. In November 2016, the appellant, who at the relevant time was a Regional Human Resources Manager based in the Eastern Cape, lodged a grievance against Mbatha. The appellant alleged sexual harassment.

[3] This allegation was investigated by her supervisor, one Mr Majola. On 24 February 2017, Majola orally conveyed his findings to the appellant. His findings were that there was no merit in the allegation of sexual harassment. Subsequently, the appellant was placed on suspension for conduct unrelated to her grievance. Aggrieved by the findings of Majola, the appellant referred a dispute to the CCMA, alleging unfair discrimination on the basis of sexual harassment. Conciliation failed to resolve the referred dispute. The appellant requested resolution through arbitration. The arbitration proceedings were concluded on 25 January 2018. As pointed out above an arbitration award was rendered. In terms of the award, Mbatha did not commit sexual harassment and the appellant was not entitled to any relief. Further as empowered by section 48 (2) of the EEA, the third respondent refused to make any payment of compensation or damages order within the contemplation of section 50 (2) (a) – (c) of the EEA.

[4] Aggrieved by the award, the appellant invoked the powers of this Court under section 10 (8) of the EEA.

Grounds of appeal

[5] The appellant basically attacks the award on the basis that the third respondent erred when he concluded that Mbatha was not guilty of sexual harassment. The findings made in paragraph 86 by the third respondent are irrational and baseless. Findings in paragraph 95 are fundamentally flawed and irrational. The base and reasoning in paragraphs 91, 92 and 93 are plausible but false and are incapable of sustaining an absolution from allegations of sexual harassment. His findings are patently wrong and defies logic; and are based on speculation. Generally, he committed errors of law manifested by material misdirection; distortion of facts and

irrationality. All of these grounds are disputed by the first respondent.

Evaluation

[6] An appeal in terms of section 10 (8) is an appeal in the strict sense, which involves a re-hearing of the merits but limited to the evidence or information on which the decision under appeal was given, and in which the only determination is whether the decision was right or wrong[5]. A review is a form of appeal, it is a limited re-hearing to determine not the correctness but whether the arbiters had exercised their powers and discretion honestly and properly[6]. Thus, what is required is to have regard to the evidence as was presented to the third respondent and thereafter make a determination

as to whether the second respondent was correct in concluding that the alleged discrimination (sexual harassment) did not take place. Critical in this appeal is the finding that the discrimination took place or not. I do not think that there is any basis upon which sexual harassment may be found, if proven to exist, to be rational, fair or justified. The LAC in Campbell Scientific Africa (Pty) Ltd v Simmers[7] has already found that sexual harassment is the most heinous misconduct that plagues a workplace.

[7] Correctness in this appeal entails one on the facts and one on the law. On the facts, it became common cause that on 10 November 2016, the appellant received an unsolicited video depicting a couple engaging in sexual intercourse of an explicit nature. The said video emanated from the phone of Mbatha. The video came through a social media platform known as WhatsApp. It was sent around 10:30 am. Upon receipt, the appellant at 11:40 am, responded by saying, she does not appreciate these videos. At 12;44 pm, Mbatha

replied and said: “sorry I will never do it accidentally it was forwarded you by mistake. Accept my apology. Your name entered by mistake.” Mbatha indicated that her number was going to be deleted owing to this mishap. Later in the day Mbatha followed up with a message explaining the mistake and that the video was intended for another friend and that if he did not have her number on his telephone book, the mishap could not have taken place.

[8] It is clear that the appellant did not view this as a mishap. She forged ahead and lodged a grievance. On the facts, the fourth respondent came to a conclusion that Mbatha never intended to send the pornographic video. In my view, the fourth respondent is

correct. This is supported by the reaction of Mbatha once he was alerted that the video reached a wrong recipient, who did not

appreciate the video. The fact that he reacted only after being told that the matter is to be reported is a red herring.

[9] Like allegations of racism, allegations of sexual harassment should be viewed in a serious light. Where a clear accident had happened, it is inappropriate in my view to take advantage of the accident and flag the serious form of misconduct. The fact that the video was not accompanied by any text aimed at the appellant is most telling. Generally, since the advent of the social media, WhatsApp, many if not most people use this platform as members of a group to forward amongst each other all sorts of information. There is no doubt that the video was explicit in nature, however of importance is whether the said video was intended for the appellant only. The evidence revealed that one Buthelezi received the same video. To my mind, this is consistent with the practice of people

sharing videos on social media. The Court takes judicial notice of this practice. On the conspectus of the evidence before the fourth respondent, it was not intended for the appellant solely. Therefore, the factual conclusions of the fourth respondent are upheld by this Court as being correct.

[10] In most cases, where sexual harassment is alleged, the most troubling question is, what constitutes sexual harassment? In many cases, as it is the case in this matter, employers do adopt policies dealing with sexual harassment in the workplace. In such policies an attempt is made to define what sexual harassment is. A general definition of the term is that it is a harassment that relates to a sexual nature and the unwelcome or inappropriate promise of rewards in exchange of sexual favours. The policy adopted by the

first respondent defined sexual harassment to mean unwanted conduct of a sexual nature. The unwanted nature of sexual harassment

distinguishes it from behaviour that is welcomed and mutual. When one compares the general definition and the one that is adopted by the first respondent in its policy, one observes that the thrust is the unwanted and or unwelcomed conduct.

[11] The Minister of Labour is empowered by the EEA to issue a Code of Good Practice. The amended Code issued in 2005, states the following:

“unwelcome conduct of a sexual nature…taking into account all of the following factors:

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

4.2 whether the sexual conduct was unwelcome;

4.3 the nature and extent of the sexual conduct; and

4.4 the impact of the sexual conduct on the employee.

[12] On the facts of this case other than the video, which was identified by the appellant as being offensive, the appellant informed the first respondent that prior to that video, a video of the same nature was received by her on 31 October from Mbatha and after realizing that it emanated from a colleague, she responded by exchanging pleasantries with the colleague. Clearly she was not offended by that. Subsequent thereto on 8 November she received further messages that she did not respond to. On 9 November she received videos, which she did not open because she was not interested in them. The video of 10 November, which allegedly offended her this time around, was not opened by her but she could see from the image what it was about.

[13] Based on the above narration, it does appear that the appellant at some point welcomed receiving these types of videos. As I have pointed out that since the advent of WhatsApp people share videos, which at times are of sexual nature. The question then becomes, if a person receives such videos, some of which go viral, should that person be considered to have been sexually harassed? In my view not. Once a person objects to receiving such videos, only then would the dispatcher know that the videos are unwelcomed. Still,

even if that happens, it does not follow that instantaneously and by one objecting an act of sexual harassment has taken place. It may become one if the person despite being told in specific terms that the conduct is unwelcomed but such a person persists with sending the videos. In this matter, the appellant only after several videos objected and whereafter, Mbatha categorically stated that it was a mistake and such videos were not intended for the appellant. Clearly, when regard is had to the position of Mbatha, not being a soothsayer, he could not have known that suddenly these videos are unwelcomed by the appellant. Having been told so by the appellant, there was no evidence of repetition. Thus on the facts and the law, the arbitrator was correct to conclude that there was no act of sexual harassment. In Simmers supra, the LAC stated the following:

[20] At its core, sexual harassment is concerned with the exercise of power and in the main reflects the power relations that exists both in society generally and specifically within a particular workplace.

[14] I cannot agree more. The harassment alleged by the appellant in casu, is not related to exercise of power. It relates more to distaste as opposed to actually being coerced as it were. A true case of sexual harassment must involve exercise of power in order to gain some advantage. On the facts of this case Mbatha was a junior of the appellant. Of course, such does not suggest that Mbatha may not sexually harass the appellant.

[15] Turning to the issue of liability. Section 60 of the EEA effectively introduces what may be seen as the common law principle of vicarious liability. What is required is firstly, an allegation of discrimination (sexual harassment) being brought to the attention of the employer. Once that is done, the employer is obligated to consult all the relevant parties and must take the necessary steps. The necessary steps in this instance does not necessarily mean taking disciplinary steps against the alleged perpetrator. The steps must be aimed at eliminating the alleged conduct. Taking disciplinary steps does not of necessity lead to the elimination of the conduct. Where an employer adopts a code on sexual harassment, such is a step aimed at eliminating the conduct of sexual harassment. This Court in Potgieter v National Commissioner of the S A Police Services and another[8], concluded that the sanction, which was imposed by the SAPS was an irrelevant issue. The investigations conducted by Majola were sufficient. The obligations in the section is not intended at aimless processes. A disciplinary enquiry would have been an aimless exercise in the circumstances of this matter.

[16] On the whole, by conducting an investigation and adopting a policy on sexual harassment such amounts to steps aimed at eliminating sexual harassment. The fact that Mbatha admitted to have not been aware of the policy, does not detract from the fact that such policy does exist. The policy was applicable to all the employees, Mbatha included. Therefore, the first respondent did not contravene the provisions of section 60 (2) of the EEA. The liability arises where a failure to take steps occurs and it is later proved that the employee has contravened the provisions of the Act. It has not been proved anywhere that Mbatha has contravened the Act. On this basis alone, a finding that the appellant is not entitled to any relief must be upheld as being correct. A further basis upon

which liability is avoided is the one contemplated in section 60 (4) of the Act. There was overwhelming evidence that the first respondent did what it reasonably and practicably could do to ensure that Mbatha would not act in contravention. The fact that the outcome of the investigations was unfavourable to the appellant is neither here nor there. On this basis too, a finding that the appellant is not entitled to a relief is upheld as being correct.

[17] For all the above reasons, the award is not appealable in law. Therefore, the appeal must fail.

[18] In the results I make the following order:

Order

1. The appeal is dismissed.

2. There is no order as to costs.

_______________________

G. N. Moshoana

Judge of the Labour Court of South Africa

Appearances

For the Applicant: Mr Java Mama of Java Mama Attorneys, King Williams Town.

For the first Respondent: Advocate F E Le Roux.

Instructed by: Bax

Kaplan Russell Inc, East London.

[1] Act 55 of 1998

[2] Employment Equity Amendment Act.

[3] Section 10 (5) (aA) (i) of the EEA.

[4] Logically, the rules of this Court were last amended some donkey years ago. The appeal powers under this section were introduced only in 2013. Therefore, there is no provisions in the rules designed to deal with this types of appeals.

[5] See Commercial Staffs (Cape) v Minister of Labour and Another 1946 CPD 632 at 638 – 41. Also NUTW v TWIU (SA) and Others [1988] 9 ILJ 361 (A).

[6] See R v Keeves 1926 AD 410 at 416-17 and Shenker v The Master 1936 AD 136 at 146-7. Also Tikly and others v Johannes NO and others 1963 (2) SA 588 (T)

[7] [2016] 37 ILJ 116 (LAC)

[8] [2009] 30 ILJ 1322 (LC)