Resignation to avoid the Chopping Block

The moot question as to whether an employer may lawfully proceed with and conclude disciplinary proceedings against an employee, post resignation, before the end of the employee’s notice period, is now settled.

What was known as a trite legal position was disturbed in the Labour Court matter of Kalipa Mtati v KPMG Services (Pty) Ltd . In Kalipa, the Labour Court held that a Chairperson of a disciplinary enquiry does not have power to make a dismissal determination, if an employee resigned with immediate effect, before the conclusion of a disciplinary hearing. The impact of Kalipa, if followed, is that the employer is disempowered from flexing its disciplinary arm, even if an employee breaches the statutory or contractual notice period.

It was brought to light in a recent judgment of the Labour Court in the matter of Mark Michael Coetzee v the Seidz Mocaa Foundation Trust and others , a judgment of the Labour Court determined by Judge Rabkin-Naicker that:

• The Kalipa judgment has been overturned on appeal by the Labour Appeal Court. Accordingly, insofar as
Kalipa conflicted with the application of law, it is no longer persuasive authority.

In the Coetzee case, the Court cited with approval the matter of Vodacom (Pty) Ltd v Motsa and another determined by Van Niekerk J, that the following legal position is correct and stands as good law:

“(19) The principles that regulate a resignation are well established. Resignation is a unilateral act (C Sihlali vs Broadcasting Commission Ltd [2010] 31 ILJ 1477 (LC)). When an employee gives the required notice, the contract terminates at the end of the notice period. When an employee leaves his/her employment, without giving the required period of notice, the employee breaches the contract. Ordinary contractual remedies dictate that the employer may hold the employee to the contract and seek an order of specific performance requiring the employee to serve the period of notice. Alternatively, the employer may elect to accept the employee’s repudiation, cancel the contract and claim damages. Of course, it is always open to the parties to terminate an employment contract on agreed terms and for either of them to waive whatever rights they might otherwise have enjoyed.”

In the Vodacom case, the issue at hand concerned a dispute over a post-employment restraint covenant. The employer sought to enforce the contractual notice period during which the employee was placed on “garden leave”. The Court held that an employer is entitled to require an employee to remain at home on “garden leave” for any period of contractual notice, and that the employee is prohibited during that period from working for anyone else. Such leave is an exercise of the employer’s contractual right. Reasonableness of any restraint covenant may be assessed by a Court of law to vary restraint periods.

In the Coetzee case, the Court cited the obiter dictum of Zondo J. (as he then was) in his dissenting judgment in the matter of Toyota SA Motors (Pty) Ltd vs CCMA and others: Zondo J. (as he then was) said the following:

“(144) Since an employee has no right of withdrawing a valid and lawful resignation, once it has been communicated to the employer, except with the consent of the employer, this means that as the date of dismissal, Mr Makhotla was bound to leave Toyota’s employee on 31 March 2011. As already indicated, Mr Makhotla was dismissed a few days before his resignation would take effect. One can, therefore, say that the dismissal interrupted the resignation. That is why we cannot say that Mr Makhotla’s employment with Toyota came to an end as a result of his resignation. We say that it came to an end as a result of his dismissal on 24 March 2011. However, the fact that Mr Makhotla’s employment came to an end as a result of dismissal and not as result of resignation, does not mean that the fact that he was dismissed at the time when he submitted a letter of resignation and was serving his notice period, was due to leave Toyota’s employ in seven days’ time is irrelevant. The fact that Mr Makhotla was dismissed at a time when, in seven days’ time his contract of employment with Toyota could have come to an end by his resignation, and he could have left Toyota’s employment is highly relevant if his dismissal dispute is arbitrated or adjudicated after the date when he would have left Toyota’s employ, had he not been dismissed.”

In the Coetzee case, the Court confirmed the legal position to be that as set out in the Vodacom case cited above.

The implication of the Coetzee case and the Labour Appeal Court’s decision to overturn the judgment of the Labour Court in Kalipa, is that an employer may lawfully proceed with disciplinary action against an employee, despite an employee’s resignation as long as the proceedings take place and is concluded within the employee’s notice period.

The position in law is that it falls within the province of the employer’s managerial prerogative to make the election as to whether or not to proceed with disciplinary action during an employee’s notice period.
Employees who resign to avoid the chopping block and who without just cause, refuse to participate in disciplinary proceedings, will not be entitled to complain about procedural unfairness.

DISMISSAL FOLLOWS THE IRRETRIEVABLE BREAKDOWN OF THE TRUST RELATIONSHIP

Depending on the facts of the case, it is no longer necessary to lead evidence to show that the employment relationship has irretrievably broken down. This is the finding of the Labour Appeal Court (“LAC”) in the 2017-judgment in the matter of Impala Platinum Limited v Zirk Bernardus Jansen & Others (JA100/14). The LAC found that:

[10] The court a quo’s reliance on Edcon was totally misconceived. That judgment turned on its own facts and did not establish as an immutable rule that an employer must always lead evidence to establish a breakdown in the trust relationship in order for the sanction of dismissal to be appropriate.

And:

[13] Since Edcon, this Court has repeatedly stated that where an employee is found guilty of gross misconduct it is not necessary to lead evidence pertaining to a breakdown in the trust relationship as it cannot be expected of an employer to retain a delinquent employee in its employ.
The LAC concluded that when the misconduct is such that there was a clear breach of the employee’s duty towards his employer, it may be implied from:

“the gravity of the misconduct that the trust relationship had broken down and that dismissal is the only appropriate sanction”.

In essence the judgment found that when the misconduct goes to the heart of the employment relationship, there is no need for the employer to prove that the relationship has irretrievably broken down.
But what does it mean when we refer to the “trust relationship” or when we say that the misconduct went to the “heart of the employment relationship”?

Although a number of terms are used to describe this relationship, it all comes down to a matter of good faith, meaning that the employee must promote the best interests of the employer.
The employee’s duty to act in good faith is an inherent part of the employment contract.
When an employee damages or undermines the employer’s business interests by, for example, bringing its good name into disrepute; competing with it; by his dishonest, fraudulent or corrupt conduct; or by theft, it stands to reason that the employer can no longer trust that employee.

Despite the many cases that have dealt with this issue, there isn’t a list of specific acts of misconduct or circumstances which destroy the trust relationship. However, the 1998- judgment in the matter of Sappi Novoboard(Pty) Ltd v Bolleurs (1998) 19 ILJ (LAC) is helpful where the court per Myburgh JP provided the following instances by making reference to judgments which were handed down as early as 1886:

[7] “It is an implied term of the contract of employment that the employee will act with good faith towards his employer and that he will serve his employer honestly and faithfully: (…) . The relationship between employer and employee has been described as a confidential one (…). The duty which an employee owes his employer is a fiduciary one ‘which involves an obligation not to work against his master’s interests’ (…). If an employee does ‘anything incompatible with the due or faithful discharge of his duty to his master, the latter has a right to dismiss him’ (…). In Gerry Bouwer Motors (Pty) Ltd v Preller (1940) it was said at 133: ‘I do not think it can be contended that where a servant is guilty of conduct inconsistent with good faith and fidelity and which amounts to unfaithfulness and dishonesty towards his employer the latter is not entitled to dismiss him.’ The conduct of an employee in receiving a commission which arises out of the employment relationship without the knowledge of his employer constitutes a lack of good faith (…).

The principle that dismissal is the appropriate sanction for employees whose misconduct results in the breakdown of the trust or the employment relationship is well-known. In this regard, for example, the Supreme Court of Appeal held in the matter of Council for Scientific & Industrial Research v Fijen (2002) 11 SCA that the relationship between the employer and the employee is essentially one of trust and confidence. Should the employee behave in a manner which is inconsistent with these principles, the employer is entitled to cancel or terminate the contract.

It is important to remember that each case turns on its own facts.

It stands to reason that there is even a stricter requirement on employees who are appointed in positions of trust, not to betray that trust.

A WITNESS MUST EXPLAIN DOCUMENTS

While documents may be relied upon during evidence, a witness must be called to explain what those documents are. The Labour Court made this quite clear in the matter of Assmang Limited (Blackrock Mine) v De Beer and Others (JR948/14) [2017] ZALCJHB 78 (28 February 2017):

[8] Mr Markus appears to have pinned all of his hopes of proving that the dismissal had been fair on an
interpretation of the pre-placement medical form itself, but without leading any evidence to support his
interpretation of that form. It is trite that documents which a party seeks to rely on for the purpose of
legal proceedings, no matter how crucial or self-evident a document may seem to be, can only have
evidentiary value relevant to the extent to which they are contextualised by a witness who talks to the
document in question.

EMPLOYER’S FIGHT BACK

Employees can cost employers millions through negligence, gross dereliction of duty, mismanagement, fraud and corruption, dishonesty or theft.
While employers seldom lay criminal charges or initiate civil litigation because of time and cost factors, they could in fact both dismiss the employee and get some of that lost money back.
Employers can either approach the Labour Court with a claim for damages, or petition the employee’s pension or provident fund.

Going to the Labour Court
In the matter of Stoop and Buckle versus Rand Water the employer dismissed both employees, laid criminal charges against them and instituted a counter-claim for damages against them in terms of the Basic Conditions of Employment Act (BCEA).

When the Labour Court agreed with the employees that it did not have the necessary jurisdiction to hear the matter because the employer relied, inter alia, on a breach of contract, the employer took the jurisdictional ruling on appeal.

The Labour Appeal Court (LAC) not only held that it had jurisdiction in terms of Section 77(3) of the BCEA, but also that employers could turn to the Labour Court to claim damages against employees for a breach of contract:

[36] “ (…) The BCEA benefits both employers and employees. This is clear from a number or provisions. (…). The
BCEA was designed to promote the right to fair labour practice which is available to everyone, employees
and employers alike. If the employee can claim damages for breach, so too can the employer, to suggest
otherwise is to argue that this section is unconstitutional.” (My emphasis).

After the LAC had dealt with the jurisdictional point, the matter was referred back to the Labour Court for a trial on the merits.

The Labour Court found that the two employees were jointly and severally liable for the loss suffered by the employer, and that their respective dismissals were both procedurally and substantively fair.
The court accordingly granted the employer the relief sought:

“137.3 The counterclaim against both the first and second applicants is upheld with costs on an attorney
and own client scale.
137.4 The first and second applicants are held liable jointly and severally for the amount of R8 091
607.16.”

Petitioning the Pension/Provident Fund
In the matter of Moore Road Gas CC v B Gumbi the employer laid a criminal charge against the employee after he was dismissed.

Although the Pension Funds Act includes provisions designed to protect a retirement benefit, deductions can be made from the withdrawal benefit in circumstances where an employer is to be compensated for losses or damages suffered either after the employee has admitted in writing to being responsible or, alternatively after the employer had obtained a court order.
Moore Road Gas CC proved its claim to the Auto Workers’ Provident Fund by handing it a letter signed by the employee, Mr Gumbi, in which he admitted liability and received the funds. Thereafter, Mr Gumbi lodged a complaint with the Pension Funds Adjudicator stating that the provident fund had paid his money to his employer.

In her determination, the adjudicator, Muvhango Lukhaimane, said the rules of the Auto Workers’ Provident Fund provided for the fund to withhold a member’s benefit pending the outcome of a criminal charge against the member.

The adjudicator said that the following requirements must be met before a deduction from the provident fund could be permitted:

• An amount must be due by a member to his or his employer;
• The amount must be due at the date of retirement, or the date on which the member ceases to be a member of
the fund;
• The amount must be in respect of compensation payable for damage caused to the employer, or legal costs
recoverable from the member;
• The damage caused to the employer must be by reason of theft, dishonesty, fraud or misconduct by the
member; and
• The member must have furnished a written admission of liability to the employer in respect of the
compensation, or judgment must have been obtained against the member in a court.

These requirements are in line with the provisions of section 37D(b)(ii) of the Pension Funds Act which state that a deduction will be paid in instances where

• The damage was caused by the employee’s “theft, dishonesty, fraud or misconduct” while the employee was
still an employee and a member of the fund; and
• the employee has admitted liability in writing, failing which the employer would have to obtain a court
order against the employee for the amount.

The employer may not make a demand for a contractual debt against the provident or pension fund. A contractual date would, for example, be for payment of a vehicle, training or a study loan in respect of which the employee still owes a balance to the employer.

A REFERRAL TO THE CCMA OR BARGAINING COUNCIL INTERRUPTS PRESCRIPTION

The Prescription Act 68 of 1969 provides that if a debt is not claimed in a period of three years it prescribes. It further provides that prescription is interrupted when the debt is claimed.
The question whether a claim for unfair dismissal was a “debt” and when the running of such prescription is interrupted, has resulted in numerous conflicting judgments in the Labour Courts.

When the amended Labour Relations Act took effect on 1 January 2015, section 145(9) provided that a review application interrupts the running of prescription in terms of the Prescription Act. Despite the certainty that this section brought, there were still many unanswered questions.

When the matter finally made it to the Constitutional Court, it turned essentially on two main issues:

• Does an employee’s claim for relief constitute a debt to which prescription applies?

• Does a referral to the CCMA or a Bargaining Council interrupt prescription?

On 20 March 2018 the Constitutional Court handed down a landmark judgment which speaks directly to the issue of prescription in respect of any employee’s unfair dismissal or unfair labour practice claim.

The judgment in the matter of Food and Allied Workers Union obo Gaoshubelwe v Pieman’s Pantry (Pty) Limited (CCT236/16) [2018] ZACC 7 has finally ended the uncertainty.

It goes without saying that when an employee refers an alleged unfair dismissal dispute, he does so because he seeks some form of relief. If the arbitrator finds in his favour, the arbitrator will direct the employer to retrospectively reinstate the employee; or to re-employ him; or to pay him compensation.

The Constitutional Court found that any of these three remedies constitutes a debt.

Given that any of these three remedies constitutes a debt for the purposes of the Prescription Act, the next question which had to be answered, was: what act would interrupt the running of the three-year prescription period?

It is trite that the referral document invariably states what relief the dismissed employee seeks. FAWU obo Gaoshubelwe (the applicant) accordingly argued that a referral to the CCMA or a Bargaining Council interrupted prescription.

In evaluating this submission, the Constitutional Court had to ask whether a referral document initiates legal proceedings. In practical terms the question was whether the referral document fell within the requirements of section 15(6) of the Prescription Act, that is, whether it fell within the provision that refers to “a petition, a notice of motion, a rule nisi, a pleading in reconvention, a third-party notice referred to in any rule of court and any document whereby legal proceedings are commenced”.
The Constitutional Court concluded that the referral document fell within those requirements.

Having reached this conclusion, the Constitutional Court found that a referral to the CCMA or a Bargaining Council constitutes a document commencing legal proceedings, and that, in turn, interrupted the running of prescription.
Once the matter is set down for conciliation, the proceedings for the recovery of the debt arising from the dismissal or the unfair labour practice, commences

WHEN THE SHERIFF COMES KNOCKING

Arbitrators often award compensation, or reinstate an employee retrospectively. This means that the employer must pay the employee his salary/wages from the date of dismissal until the date on which he is to be reinstated.
The CCMA’s functions do not, however, include the enforcement of its awards.

While that is the end of the arbitration, it might be the beginning of a different journey for the employee, and could become a nightmare for the employer if the latter refuses to pay the compensation or to reinstate the employee retrospectively.

The immediate question that arises is what the employee can do to enforce the award?

The answer is that he can make use of the mechanism provided in section 143(3) of the Labour Relations Act. In terms of this section the employee can have the arbitration award certified by the director (or his delegate) of the CCMA. Thereafter, the employee can approach the registrar at the Labour Court for a writ of execution which he then takes to the sheriff. The sheriff, in turn, has the power to go to the employer’s premises in order to make a list of the employer’s movable assets. These assets may then be attached and sold during a public auction to pay the amount due to the employee.

In the matter of Levine v Wienand and Others (C362/2018) [2018] ZALCCT 23 (29 June 2018), the Labour Court dealt with a matter where a company by the name of Osmosis, was directed by the arbitrator to pay an erstwhile employee, Wienand, an amount of R183 233.29.

The facts before the court were quite simple. Levine paid the money when the sheriff came calling because he didn’t want the sheriff to enter his home, but then went to the Labour Court to try and get the money paid back. He sought an order from the court that the sheriff had behaved unlawfully, that he, Levine, was forced to pay the money on behalf of a third party being the company, and wanted the court to prevent the sheriff from paying the money over to Wienand.

The employer originally used his home address as his business address. Although Levine had in the interim changed his business address, the change was only to take effect on 1 May 2018. Therefore, the sheriff argued that he was entitled to make a list of the movable assets in the house, as it was still the company’s address.

The judgment reads as follows at paragraph [6]:
The deputy sheriff (Stander) arrived at the private residence of the applicant on April 29, 2018 in the early morning, duly empowered to attach goods owned by Osmosis in respect of an arbitration award in favour of Wienand. He explained that, as is the norm, he needed to compile an inventory of sufficient goods to secure the judgment debt and that such goods, although attached, would not be removed from the premises at that stage.

Levine was having none of it, wouldn’t let the sheriff enter his home, and instead paid the amount out of private bank account. Once paid, he wanted it back, arguing that he made the payment on behalf of the company under duress.
The court did not accept Levine’s submission that he did not pay the money over voluntarily. It also did not accept that the sheriff was acting unlawfully or illegitimately by having arrived to make a list of the movable assets in the house, given that Levine’s residential address was also the registered address of Osmosis.
In the circumstances the court held that it could not issue an order sought by Levine.
Levine not only lost this application – the court further instructed him to pay the costs incurred by Wienand and, on a more punitive scale, the sheriff’s costs on an attorney- own client scale.

The importance of this Judgment
When an employer is directed in an arbitration award to make payment to an employee, he should do so unless he takes arbitration award on review. Failing to do so simply means that he opens himself or the company up to steps that an employee can take in terms of section 143 (3).

In the end it might cost the employer much more than the amount that was initially due.
It also sends a warning to the employer who uses his home address as his business address and then fails to pay his debts.

IS YOUR ENTERPRISE GEARED FOR 2018 EMPLOYMENT EQUITY COMPLIANCE INSPECTIONS?

Employment Equity is an Employment and Labour Compliance issue unlike the parameters of B-BBEE legislation, modelled on Inter-Industry/State self-regulation and policing, non-compliance with the provisions of the Employment Equity Act (EEA) is a breach of an Employment law, enforceable by intervention by the State.

The Department of Labour (DOL) is empowered to conduct inspections and to institute non-compliance processes against public and private Enterprises. Non-compliance attracts serious reputational and financial risks for all designated employers.

A designated employer is defined in the EEA as an employer that:
• employs more than fifty (50) employees; or
• employs under fifty (50) employees and whose income exceeds prescribed annual financial turnover
thresholds, prescribed by the EEA. The thresholds established are variable by Industry sector and range
from R 6 million.

The risk of public “naming and shaming” by the DOL, fines being imposed of up to a maximum of the greater of R 2,7 million or 10% of the annual turnover of an Enterprise, is a foreseeable risk. This risk needs to be mitigated by the custodians of Enterprises compliance affairs, namely, CEO’s, Boards of Directors, Directors/In-house Legal Counsel and Compliance Officers.

The month of May 2018 marks the anniversary of the release of the 17th Annual Report of the Commission for Employment Equity (CEE).

The 17th CEE report revealed disappointing trends towards improving the representation of under-represented designated groups at management levels. Designated groups mean black people, a generic term to describe African, Indian and Coloured race groups, all females and all persons with disabilities.

To address these disappointing trends, the Department of Labour (DOL) announced measures to accelerate the perpetuation of under-representation of designated groups, from a snail’s pace approach, over the past 18 years, towards a steam train approach, effective from 2018.

This move was provoked due to the outcome of Analysis of data undertaken by the DOL drawn from Employment Equity report submissions for the year 2016.
• 68.5% of Top Management positions are occupied by White employees, whilst African employees represented
14.4% at this level;
• Females occupy only 22% of Top Management positions;
• 64% of White employees at Top Management Level were terminated and 52% were recruited again;
• 58.1% of Senior Management positions are occupied by White employees, whilst African employees are
represented by only 22.1%;
• Females occupy only 33,3% of positions of Senior Management positions;
• 59% of White employees at Senior Management Level were terminated and 53,8% were recruited again.

The DOL shared these outcomes during public Road Shows held nationally. The DOL’s conclusions were that:
• Measured against the national demographics of the economically active population in South Africa, for the
White and African race groups, the results were disappointing. White representation nationally is 9.5%,
African representation is 78%, yet there remains a disproportional over-representation of White males at
Top and Senior Management levels;
• The level of representation of persons with disabilities remains significantly low at all occupational
levels, far below the minimum expectations of 3% of the workforce.

The DOL announced a strategy to implement radical change by making a move to:
• Set sectoral targets, akin to that which presently exists under the B-BBEE sector codes because self-
regulated goals and targets by Enterprises have not yielded any results;
• Promulgating the existing Section 53 of the EEA into law. Once promulgated, all designated employers will
be required to possess and produce an Employment Equity Compliance Certificate to qualify to do business
with the State;
• Existing contracts with the State may be cancelled, by operation of law, for lack of a valid Employment
Equity Compliance certificate.

The promulgation of Section 53, on a more practical level, means that designated employers who are desirous to remain above board, would need to “invite” inspections instead of crossing fingers to avoid being placed under the spot light. The way forward for the DOL was postulated thus:
• To promulgate Section 53 of the EEA, which deals with State contracts in relation to certificates of
compliance;
• Further amendments to the EEA, establishing enabling provisions required for setting of employment equity
sector targets;
• The encouragement of workplace transformation activism (eg. employees and unions) challenging unfair
discrimination practices (racism and pay inequalities);
• The strengthening of workplace consultative forums on matters related to Employment Equity.
DOL Results on Employment Equity Inspections conducted during 2017
• Out of a target of 62 substantive inspections conducted during 2017, the DOL achieved a target of 68
inspections and found all 68 designated employers non-compliant;
• Out of a target of 548 procedural inspections conducted in 2017, the DOL achieved a target of 711
inspections and made findings of non-compliances against 226 designated employers.

The following statements made by the Minister of Labour in her budget speech on 15 May 2018, indicates strongly that there is a commitment to invest resources in enforcement processes. The impact is likely to be a significant increase in DOL targets for substantive and procedural inspections for 2018. The Minister of Labour said:
“Strengthening inspection and enforcement has remained one of our main focus areas in this medium term strategic framework period. Whilst we have exceeded our set targets on the inspections, we have not turned our attention to strengthening enforcement by introducing enabling legislative instruments to navigate the inherent complexities in this work…Inspection and enforcement services registered high levels of success on the inspections and follow up fronts, however the focus going forward will direct more energy in the efforts to improve enforcement.”

Written By: Michelle Naidoo

WORDS CAN’T BE RETRACTED ONCE UTTERED

INTRODUCTION

It doesn’t often happen that employment-related cases dominate the headlines for days on end, but the judgment in Chowan v Associated Motor Holdings (Pty) Ltd and Others (22142/16) [2018] ZAGPJHC 40 did and became one of the most talked about cases in years.

THE FACTS

Ms Chowan, a qualified chartered accountant, was employed by Associated Motor Holdings (Pty) Ltd (AMH).
Instead of enjoying a promising career path, things went horribly wrong when nothing came of the promises made to her by the CEO, Mr Mark Lamberti. Lamberti had promised her that she would be appointed as a Chief Financial Officer within a year – a promise on which he reneged. By way of explanation he told her that she is “a female, employment equity, technically competent” before adding that she was not yet ready for a leadership position.
She sued her employer, as well as Imperial Holdings and Lamberti, because of what she perceived to have been racism and gender discrimination. During evidence she explained why she turned to the High Court:

[21] “Because I pride myself on the fact that I am a qualified professional chartered accountant. I had
built my career. I had been a CFO. And in Mark Lamberti’s eyes I was being narrowed down because
of my colour and being female.”

The court agreed with s Chowan that her sense – that racism and gender discrimination were at work – was justified:

[20] “Ms Chowan’s inference of racial and gender discrimination against her based inter alia on those
facts, as well as what had been said to her by Mr Lamberti when he made the utterance, was
justified….”

The court found that Chowan was, professionally speaking, well qualified and experienced, came highly recommended internally, and had been promised the appointment.

The court not only concluded that she was entitled to damages due to the company’s wrongful actions and injury to her reputation and dignity, but also awarded costs against the respondents.

While this judgment sends a very strong message to employers to ensure that there is neither racism nor gender discrimination at work, it is also a timely reminder to all employers that they must follow a fair procedure at all times.

It is common cause that when the applicant informed the HR director that she wanted to lodge a grievance against Lamberti, he cautioned her that “it would be a career limiting move if [she] raised a grievance against a powerful man like Mr Mark Lamberti’” despite the fact that all she wanted from the grievance procedure “was an apology from Mark Lamberti for insulting me and offending my human dignity, and l wanted him to honour the promise he had made”.

This was a clear attempt to stop her from lodging a grievance, but she persisted and went ahead.

She also lodged a grievance against the CFO, Mr Ockert Janse van Rensburg, inter alia for having said that her brown car matched the colour of her skin. One of the outcomes she sought was that he should “apologise and refrain from making any discriminatory comment, based on race, gender and ethnicity”. Despite Janse van Rensburg’s denials that he uttered those words, the court found that Chowan was a more credible witness, and believed her version.

The outcome of the grievance investigation was a finding that her allegations were “without any foundation in fact and devoid of any substance”.

The court held at paragraph [34] that this should have been the end of the grievance procedure. However, Mr Thulani Gcabashe, a non-executive director and group chairman of Imperial’s board, however, did not see it in the same light.

Gcabashe accused the applicant of “misconduct and an abuse of the grievance procedure”. She was informed that she was suspended with immediate effect pending a disciplinary hearing. In this regard the court held that no one:

[30] “(…) could give any plausible explanation for why Ms Chowan (who was in the position of a
complainant) was summarily suspended, or why Messrs Lamberti and Janse van Rensburg were not also
so suspended. Furthermore, no plausible explanation could be proffered for suspending her prior to
giving her the opportunity to make representations as to why she should not be suspended.”

It is apparent from the judgment that the court had difficulty understanding why the applicant – who had exercised her right to lodge these grievances – was being punished for having done so, and why she was only given the right to object to the suspension after she had already been summarily suspended and marched off the premises in circumstances where the CFO and the CEO, who were the subjects of the grievances, were not suspended.

The court found later in the judgment that the employer not only breached the general practice regarding the grievance procedure and the employee’s rights when it summarily suspended her, but that its conduct was unlawful given that it was the court’s finding that these grievances constituted a protected disclosure:

[51] “The disclosure made by Ms Chowan, therefore, is a protected disclosure and the occupational
detriments – being suspended, subjected to disciplinary action and ultimately dismissed – to which
she had been subjected by her employer, AMH, on account of having made the protected disclosure are
in violation of the provisions of s 3 of the PDA and unlawful.”

THE IMPORTANCE OF THIS JUDGMENT

We have touched on only three of the many issues that are dealt with in this judgment – all three issues serve as a powerful reminder that an employer must not discriminate or allow the abuse of practices and procedures, but must act in a fair and lawful manner by:

Not allowing racism at the workplace;
Not turning a blind eye to gender discrimination;
Not punishing an employee who exercises his/her right to lodge a grievance against any other employee regardless of seniority; and by
Not abusing and breaching established suspension practices.

Although stories in the media have suggested that Ms Chowan stands to make millions in damages, the actual damages to be awarded on both claims will, by agreement between the parties, only be determined at a later date. It is, however, quite probable that the employer might find in the final analysis that the words directed at the applicant by Messrs Lamberti and Janse van Rensburg, and Mr Gcabashe’s decision to turn the tables on the applicant, may have cost it much more than just money.

Written By: Dr. Hilda Grobler

SEXUAL HARASSMENT IS NOT A FRINGE BENEFIT

Worldwide sexual harassment is the most underreported misconduct at the workplace.

Following the outing of powerful business and political leaders such as movie mogul Harvey Weinstein, deputy British Prime Minister Damian Green, and the Melbourne mayor, Robert Doyle in Australia, millions of women have come forward through a range of social media platforms with their stories of sexual harassment.

In her new book, Lean In: Women, Work and the Will to Lead, Sheryl Sandberg, the chief operating officer of Facebook and the first woman on the its board, acknowledges what many are afraid to admit publicly: “Women face real obstacles in the professional world, including blatant and subtle sexism, discrimination and sexual harassment.”

This is true regardless of whether the women work at low levels jobs such as waitrons and security guards, in glamorous jobs such as actresses and models, or in high powered positions such as MPs and lawyers.

The online magazine, LegalWeek, on 20 December 2017 published a story about a senior partner who, with the knowledge of his legal firm, was a serial sexual harasser. However, the firm chose not to do anything about this misconduct because “of his client base”, which earned the firm an enormous amount of fees. The implication is clear – the firm would lose too much money if the sexual harasser was fired. It was much cheaper to let the complainants leave after paying them some money while securing their silence by requiring them to sign a nondisclosure agreement.

French researcher Geneviève Fraisse has argued that while women are legally seen to be equal to men in the workplace, it would appear from the vast number of sexual harassment cases that have recently been reported on social media that this is not so (“L’affaire Weinstein est une révolte historique et politique”, francetvinfo.fr, 5 décembre 2017).

The essence of her argument is that there is a clear divide between a woman’s employment competence and the accompanying patriarchal perception that her body remains available to the men surrounding her in the workplace. While she is there to work, her career does not depend on competence in her key performance areas but whether she obliges those who wield power over her by not resisting any form of sexual harassment.

Although both males and females are subject to sexual harassment at the workplace, research has shown that predominantly females suffer this indignity.

The recently held Presidents Club Char¬ity Dinner at the Dorchester Hotel in London (in December 2017) was exposed by three Financial Times journalists for what it was not. Instead of a high-profile men only charity dinner attended by 360 leading figures from British business, politics and finance, the scene was carefully set to convey the message that this was a charity dinner with sexual benefits: The “entertainment” included 130 specially hired hostesses who had to wear “uniforms” consisting of short, tight, black dresses, black high heels and a thick black belt resembling a corset.

The Financial Times reported that many of the hostesses were groped and repeatedly asked to join diners in bedrooms in the hotel, and continued to say: “By midnight, one society figure who the FT has not yet been able to contact was con¬fronting at least one hostess directly.

“‘You look far too sober,’ he told her. Fill¬ing her glass with champagne, he grabbed her by the waist, pulled her in against his stomach and declared: ‘I want you to down that glass, rip off your knickers and dance on that table.’ ”

Sexual harassment often happens in an environment where the harasser feels entitled and protected because of the power imbalance in his favour at the workplace. This is particularly apparent from the 2001 Human Rights Watch report, “Scared at School: Sexual Violence Against Girls in South African Schools”, which recorded that some male teachers said access to young females in their care was a “fringe benefit” provided for their sexual pleasure.

In a newspaper article following the report a teacher was quoted saying, ‘The department is not paying us enough money. So, this is a fringe benefit. But Std 6 is too young. Std 9 and 10 is where we play.’ ”

Victims are seldom protected and have little recourse other than approaching the courts for relief.

The employer in the matter of Christian v Colliers Properties (2005) 26 ILJ 234 (LC) discovered the expensive way that sexual harassment is not a fringe benefit. He dismissed his new employee after three days in her new job as a secretary because she refused to succumb to his sexual advances. In view of the calculating and callous manner in which she was treated, she was awarded 24 months compensation (R48 000) and her legal costs. She also referred the complaint in terms of section 50 of the Employment Equity Act EEA), and was awarded an amount of R10 000.

The facts in Ntsabo v Real Security CC (2003) 24 ILJ 2341 (LC) clearly demonstrated how the court views an employer’s failure to protect a victim. After the employer failed to take action despite the employee’s repeated complaints that she was regularly sexually harassed (and finally sexually assaulted) by her superior, she resigned.

The court found that the employer had created an intolerable work environment and that her resignation therefore constituted a constructive dismissal. She was awarded compensation equivalent to 12 months’ pay, plus R20 000 for future medical costs and psychological counselling, and R50 000 for general damages in terms of s 50(2) of the EEA, as well as her legal costs.

The Labour Courts have persistently sent a clear message – women’s bodies are not part of the employment contract and therefore sexual harassment is not a fringe benefit. Tlhotlhalemaje, J said in Rustenburg Platinum Mines Limited v UASA obo Steve Pietersen and Others (Case no: JR 641/2016) that a “misogynistic, patriarchal and insensitive approach” shall not be tolerated.

Employers who fail to protect their employees from sexual harassment will not only lose their valuable skills, but will also be directed by the courts to pay huge sums of money in compensation – and shamed in the process.

SCATHING JUDGMENT SUGGESTS THAT COMMISSIONERS NEED SPECIALISED TRAINING TO DEAL WITH SEXUAL HARASSMENT MATTERS

Describing sexual harassment as the “most heinous crime” at the workplace in the matter of:

Motsamai v Everite Building Products (Pty) Ltd, the Labour Appeal Court (“LAC”) made it clear on 4 June 2010 that the courts expected employers to adopt a zero tolerance approach to the most underreported misconduct at what is required to be a safe and protected environment.

The LAC continued to say:

[20] “Sexual harassment goes to the root of one’s being and must therefore be viewed from the point of view of a victim; how does he/she perceive it, and whether or not the perception is reasonable.”

This principle requires a finder of fact to view the allegations not only on a factual basis, but to also have regard to the victim’s psychological make-up and other factors that may have played a role rather than to predominantly rely on the harasser’s defence which, in most instances, either boasts of consensual conduct, or is based on bare denial.

After having read the transcript of the adversarial conduct exhibited by the employer’s legal representative in the Labour Court, on 7 March 2017 the LAC expressed its displeasure at the insensitivity displayed towards the victim in the matter of Liberty Group Limited v Margaret Masango (JA 105/2015):
“From the record what is apparent is a vicious and sustained attack launched by the appellant, through its counsel, on the respondent’s person, her motives and credibility and the reliability of her evidence over some three days of unacceptably harsh, cruel and vicious cross-examination. The result was that she became victim to unwarranted and unjustified secondary harassment at the hands of the appellant, an issue that was taken up by this Court with counsel at the outset of the hearing.”

However, it is not only legal practitioners who have come in for a drubbing from the court of late because of the manner in which the victim in a sexual harassment matter was treated.

On 27 February 2018 a CCMA commissioner invited the wrath of the review court in the matter of Rustenburg Platinum Mines Limited v UASA obo Steve Pietersen and Others (per Tlhotlhalemaje J; Case no: JR 641/2016) for having retrospectively reinstated a manager, one Mr Steve Pietersen, because the victim, in the commissioner’s view, was docile, did not “express her displeasure at Pietersen’s conduct” loudly enough, and waited too long to report the harassment to justify the latter’s dismissal.

The following passage was quoted from the Arbitration Award:

“‘…, I am persuaded that the Applicant had made sexual advances towards the victim, but that however, he was encouraged to continue doing so, by the docile conduct of the victim and consequently that, such conduct did not amount to unwanted sexual harassment’. (Sic)

In analysing the manager’s proposal that he should move in with the victim, ostensibly to help her pay expenses while sleeping with her, the commissioner concluded that this was nothing more than “a proposal of love”, and that it didn’t constitute sexual harassment because:

“the victim did not clearly and unambiguously, express to him/her unhappiness at his proposal, a fact which is eminently relevant and material to the Applicant’s future conduct towards the victim (…)”.

At both the disciplinary hearing and arbitration Pietersen flatly denied that he had made any such proposal or that he ever said anything that could be construed as sexual advances, then or at any time between 2007 and 2015. He accused the victim of “fabrication”, and of “planning and plotting the whole thing”.

The court disagreed strongly with the commissioner that the victim had neither rejected nor rebuffed Pietersen’s persistent attempts to have a sexual relationship with her and/or that his conduct was nothing more than the “actions of someone love-struck, or ‘proposing love’”.

The court held that the provisions of clause 5.4 of the 2005 Code of Good Practice on the Handling of Sexual Harassment Cases, provided that conduct such as Pietersen’s behaviour “constituted an impairment of the complainant’s dignity, taking into account her circumstances and her junior position vis-à-vis Pietersen, and that in the absence of reciprocation, there was no requirement for the complainant to say no in unambiguous terms as suggested.”

It is common cause that the victim never reciprocated Pietersen’s advances during the 8 years in question. That being so the court held said that it could not comprehend how the commissioner could have concluded that her response was “docile and inviting” as “silence in the face of harassment (…) can never be a hint for acquiescence”.

The court found that the victim’s failure to report the harassment for a period of time did not impact on her credibility, nor did it send a message to Pietersen that she would eventually agree to his sexual advances. Instead of jumping to conclusions as the commissioner did, the court found that “one must look deeper and objectively into the reasons incidents of sexual harassment are not immediately reported. This examination again has to do with how human beings react differently to the same or similar set of circumstances.”

While the LAC in the Liberty matter lashed counsel for his unacceptably harsh, cruel and vicious cross-examination over a period of some 3 days, the Labour court not only commented that CCMA and Bargaining Council commissioners need specialised training to hear sexual harassment matters, but it further handed down one of the most scathing judgments ever to come out of the court when it made the following comments and observations in the 26-page judgment:

• the commissioner’s findings were “worrying in the extreme”; and “inexplicable”;
• there was no basis to have concluded that the victim’s evidence was “vague”;
• that the Commissioner “found comfort in casting aspersions on” the victim’s “credibility without just cause”;
• that the commissioner’s conclusions were “patriarchal and misogynistic in the extreme” and that it denoted

“a right or entitlement. The message is that that harassers can persist with the unbecoming conduct, with the hope that they will get lucky at some point, as long as the complainant does not report the matter”;

• that the commissioner erroneously held it against the victim that

“no evidence had been led to demonstrate that the employment relationship had irretrievably broken down”;

• that the Commissioner

“viewed the complainant as an aggrieved/begrudged employee as a result of the disciplinary processes against her” while “(a)ll that Pietersen had offered was conspiracy theories and denials. How the Commissioner was persuaded by mere denials in the face of the evidence by the complainant and other witnesses is beyond comprehension”.

• The court further held that:

“The significance of the 1998 and 2005 Codes is that they essentially spoon-feed Commissioners in terms of what they must look for in determining such disputes, and it is in this regard that the Commissioner in this case was found lacking.”

• The court expressed difficulty with the fact that the commissioner “failed to appreciate that the conduct complained of was also unwelcome” and that the corroborated evidence provided by two other witnesses were disregarded, resulting in what can only be described as an absurd finding that Pietersen was merely amorous and love-struck.

In the circumstances the court found that the victim’s failure to report the harassment for a period of time did not impact on her credibility, nor did it send a message to Pietersen that she would eventually agree to his sexual advances.

The court warned against the desire to jump to conclusions as the commissioner did, and cautioned that “one must look deeper and objectively into the reasons incidents of sexual harassment are not immediately reported. This examination again has to do with how human beings react differently to the same or similar set of circumstances.”

It is apparent from these judgments that the court has adopted a policy of zero tolerance towards finders of fact who favour a patriarchal defence rather than to view the evidence from the victim’s point of view.