ELRC43-21/22 GP
Award Date:
18 August 2021
Text
Case No. ELRC43-21/22 GP
In the matter between
MT PHANYAPHANYA Applicant
and
Department of Education: Gauteng Respondent
ARBITRATOR: YOLISA NDZUTA
HEARD: 9 JULY AND 13 JULY 2021
DATE OF AWARD: 18 AUGUST 2021
SUMMARY: Labour Relations Act 66 of 1995 – Section 186 (1)(a) read with section 188(1) - unfair dismissal
SUMMARY: Whether the dismissal of the Applicant who was found guilty of a misconduct-sexual misconduct for having shared pornographic material was fair or not
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The matter was set down as an arbitration to be heard before me over zoom on the 9th of July 2021 and such the proceedings extended to the 13th of July 2021 in order to complete the hearing timeously. During these proceedings, the Applicant, Mr Phanyaphanya was represented by Mr Sibeko Boesman of PSA while the Respondent, Department of Education: Gauteng was represented by Mrs. Kgomotso Tshiovhe.
2. The parties confirmed receipt of the notice of set down and there were no pre-liminary issues raised.
3. The parties provided a pre-arbitration minute which addressed all the necessary issues. The representatives further filed Heads of Arguments on the 19th of July 2021.
THE ISSUE IN DISPUTE
4 I am required to determine whether the Applicant was unfairly dismissed. I am further required to determine whether the Applicant committed an act of misconduct by sharing (and or sending) pornographic material.
THE BACKGROUND TO THE DISPUTE
5. In these proceedings the Applicant referred an unfair labour dismissal challenging both substantive and procedural fairness.
6. The Applicant had been charged with misconduct for having breached the Employer’s workplace rules and policies by ‘allegedly’ commenting an act of sexual misconduct when he sent pornographic material to a client of the Employer. The specific wording of the charges was
“it is alleged that on or about 24 July 2020, you conducted yourself in an improper, disgraceful and unacceptable manner in that you made sexual advances and sent pornographic video(s) to Ms Kobeli, who is client to the Department.”
7. The Applicant at the time of the incident was a fulltime employee who had been in service of same employ for a prolonged period of time.
8. The Applicant raised this application due to his dissatisfaction with the disciplinary Hearing proceedings. This arbitration hearing is a fresh hearing of the matter from the beginning.
9. The Respondent opposed the Applicant’s submissions.
10. The Respondent argued that the sanction imposed during the disciplinary hearing was befitting the seriousness of the misconduct.
SURVEY OF EVIDENCE AND ARGUMENT
11. The Respondent prepared two (2) bundles of evidence which included two (2) video messages, the parties then agreed to rely on the latter evidence as a common bundle.
12. The latter bundle was not disputed as such was admitted into evidence.
13. The Applicant (Mr Phanyaphanya) was called to testify under oath and as a witness in support of his case. A summary of his testimony will be outlined herein below.
14. The Respondent called three witnesses in support of its case. A summary of their testimony will be outlined herein below.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
15. Considering that the Respondent bore the onus to commence and was duty bound to prove the fairness of the dismissal, I shall first assess its evidence and arguments then I shall analyse the evidence and arguments of the Applicant.
16. The parties further agreed to submit written arguments to substantiate their respective case. I shall address said arguments and the averments made during the arbitration herein under.
17. I considered same and the arguments made during the arbitration proceedings.
18. The Respondent called three witnesses, namely, Mr Vogani Phephenyane, Ms Moroa Kobeli and Mr Tsibana Sabai.
19. Mr Phephenyane – who presided over the disciplinary proceedings- gave testimony relating to the procedural fairness of the disciplinary proceedings. He was cross-examined as to the fairness of allowing him to preside of the disciplinary proceedings considering the office he occupies at the Respondent and also considering that he is considered a ‘colleague’ of the Applicant. Mr Phephenyane stood firm that he merely shares a building with the Applicant however they are not on the same floor nor are they colleagues in the strict sense of the word. He mentioned that they are not in the same sub-department within the employment of the Respondent.
20. Mr Phephenyane was also questioned as to having previous interactions with the Applicant due to the Applicants union activities. To the latter, Mr Phephenyane advised that said interactions had no regard to his role as a Presiding Officer, furthermore the Applicant was at liberty to object to Mr Phephenyane’s presence at the disciplinary hearing which same objection was not made nor was an Application for Recusal made.
21. Ms Kobeli -the client of the Respondent- was called and her testimony referred to the act of being the recipient of the sexual content. During her testimony she advised that she did not consent to receive the content from the Applicant nor did she invite same as there wasn’t any cordial relationship between herself and the Applicant. She was questioned as to how she received the Applicants personal number and she advised that she received same from a party who was a colleague of the Applicant. She went on to advise that she contacted the Applicant to procure information and after contacting the Applicant on his cellular phone (per WhatsApp messaging service) she went on to address the Applicant per email to establish and maintain a professional communication. It was put to Ms Kobeli that she did not take offense to the content. Ms Kobeli’s response to the latter was that she was disgusted by the content and felt violated by the content.
22. Mr Sebai- the Deputy Director: Transformation- was called and in his testimony referred to the Sexual Harassment Policy of the Respondent. During his testimony he went on to advise what constitutes sexual harassment and what the policy advises in this regard. Mr Sebai also advised that the Applicant being an employee of the Department of Education he is aware of the policies of the employer. Mr Sebai further testified that the employer’s sexual harassment policy is of the aforementioned policies. Mr Sebai went as far as advising what constitutes sexual harassment in terms of the policy.
23. My analysis of the of Mr Phephenyane is that he was a credible witness. When cross-examined, Mr Phephenyani stood firm on his version as such even when Mr Sibeko tried introducing alternative means of ‘irregularity of his role as a presiding’ to which Mr Phephenyani raised the rights afforded to a party who takes issue with a presiding officer.
24. My analysis of Ms Kobeli as a witness is that she was disturbed by the conduct pf the Applicant to say the least. More noteworthy is the fact that Ms Kobeli expressed how unwelcome the conduct was more so seeing that she was only interested in a professional communication between herself and the Applicant.
25. My analysis of Mr Sebi is that he was a credible witness more so that he explained that the Applicant ought to be knowledgeable of what constitutes sexual harassment as such how same is against the policies of the Respondent.
26. The Applicant was called as a witness. He attested as to how Ms Kobeli contacted him on his personal cellular although as employees of the Respondents they are issued work cellular phones. He further attested that he took issue that Ms Kobeli was only given his personal cellular number by the late colleague who shared his details. He raised that he and the late colleague were not on good terms as such it is unsettling for him that his personal number was shared.
27. The Applicant further attested that his reason for sending the content was on a more educational and assistance basis because Ms Kobeli advised that her interest in a relationship with the Respondent involved the youth as such the video was sent due to concern of how the youth interact. He maintained that the content was not intended to be sexual advancements more so he did not even consider same as sexual harassment.
28. In relation to charge and the proceedings, Mr Phanyaphanya attested that he took issue with Mr Phephenyani’s appointment as the Presiding officer at the disciplinary hearing however he noted that he did not request for his recusal. Mr Phanyaphanya stood firm that the charge was irregular because it mentioned advances which he maintained were not described in the Disciplinary Code as opposed to sexual harassment which is also in a policy.
29. The parties agreed to rely on a common evidence bundle which encompassed with it several documents. The admitting of said bundle documents into evidence was not objected to as such said documents constitute evidence to be considered with the oral testimony.
30. My analysis of the Applicant’s testimony is that he remained oblivious to how his conduct constituted misconduct. When it was put to him that he knew of the Sexual Harassment policy, he responded that he knew of it however not its contents. As a seasoned employee who confirmed that he is a union activist it is improbable that he would not have taken time to peruse and familiarise himself with the policies crucial to his duties as a possible employee representative (by virtue of being a unionist).
31. I further noted that the reason from the Applicant for his conduct and as such find same reason as unacceptable. It is improbable that a seasoned employee will not be cautious of his actions as such I struggle to find the testimony of the Applicant as credible.
32. Upon perusal and consideration of the written arguments, I note the following:
32.1 The Respondent maintained that the Applicant was well aware of his role during his employment and being in the position he occupied, he had unfettered access to the workplace rules.
32.2 The Respondent further raised that the Applicant being a union official was expected to had familiarised himself with the workplace policies more especially considering the testimony by Mr Sebai- who testified of the annual communication to employees regarding gender transformation and sexual harassment-.
32.3 The Applicant raised that his disciplinary action and subsequent dismissal was misplaced considering that the charges were not drafted in concurrence with the reason for dismissal.
32.4 The Applicant further questioned the credibility of Mr Phephenyane and Ms Kobeli raising the averment that he is being targeted.
33. Charges should be drafted accurately but there is no need to do so with the precision of a criminal indictment. In EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and 2 Others (JA4/18) (LAC) the LAC confirmed that disciplinary charges need not be drafted with the precision of a criminal charge sheet and added that Courts and arbitrators should not adopt an approach which is too formalistic or technical. In considering the misconduct as it related to the disciplinary charges, the test to be used is one of prejudice. The test for prejudice in the circumstances is whether the employee would have conducted their defence differently had they known of the possibility of a ‘competent verdict’ to the charges. In other words, would the employee have conducted his defence differently had he known that even if the employer could not prove dishonesty, he could still be dismissed for gross negligence?
34. It is evident from the evidence that the Applicant was a seasoned employee who (being a proclaimed Union representative) was reasonably expected to be well versed with the policies of the Employer. Notwithstanding the latter, the Applicant ought to have considered how his conduct may have offended the recipient and how his conduct would have an effect on the employer. Although the Applicant claims that the intentions of his conduct was not as expressed by the employer and the recipient of his conduct, it ought to have been considered by himself that such actions have far reaching consequences more so since he was not invited to communicate with the recipient in such a manner.
35. Matters relating to sexual harassment are very complex in that the conduct of sexual harassment not only constitutes a criminal offence however it also constitutes a disciplinable offence when considered in an employment context. Further to the above, a commissioner considering these matters is guided by the Code of Good Practice (formerly known as the Employment Equity Act: Code of Good Practice: Handling of Sexual Harassment Cases in Workplaces) which envisages both an informal and formal procedure for addressing sexual harassment. Item 3.2 of the latter Code provides that sexual attention becomes sexual harassment if:
a) the behaviour is persisted in;
b) the recipient has made it clear that the behaviour is considered offensive and/or
c) the perpetrator should have known that the behaviour is regarded as unacceptable.”
36. In Motsamai v Everite Building Products (Pty) Ltd (JA21/08) [2010] ZALAC 23; [2011] 2 BLLR 144 (LAC) (4 June 2010) the courts placed the following:
Sexual harassment goes to the root of ones 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.
37. In Old Mutual Life Assurance SA (Pty) Ltd v Makanda and Others (JR1246/18) [2019] ZALCJHB 285; (2020) 41 ILJ 444 (LC) (14 October 2019) the courts considered a matter that pertained to a dismissal for sexual harassment and in deciding the review applied a 3 tier/ 3 principle test which considered the two parties versions and the role of the CCMA in such matters to be a gender-responsive and dispute resolution- forum. There is a duty on commissioners to be alive to the fraught nature of sexual harassment and to conduct such arbitrations with sensitivity.
38. I have considered the matter with sensitivity and have applied the above 3 tier test.
39. The Applicant not only maintained his refusal to identify his conduct as sexual harassment, he tried to motivate that the same conduct was innocent despite professing knowledge of the employer’s policy.
40. In cases of unfair dismissal the onus of proof lies on the Respondent to prove the fairness of said dismissal. The Respondent established that the Applicant transgressed a rule which said rule was in his knowledge. The Applicant knew of the policy encompassing the rule which his conduct was breaching and as such was aware of the disciplinary code ancillary to said transgression. The Respondent further established that the Applicant was subject to an internal disciplinary process which was fair and impartial.
41. In the premises I make the following award.
AWARD
42. The Applicant has failed to establish that an unfair dismissal was perpetrated against him by the Respondent. Thus his dismissal was substantively and procedurally fair.
43. The Applicant’s dispute referral is dismissed.
Yolisa Ndzuta
Panelist: ELRC
In the matter between
MT PHANYAPHANYA Applicant
and
Department of Education: Gauteng Respondent
ARBITRATOR: YOLISA NDZUTA
HEARD: 9 JULY AND 13 JULY 2021
DATE OF AWARD: 18 AUGUST 2021
SUMMARY: Labour Relations Act 66 of 1995 – Section 186 (1)(a) read with section 188(1) - unfair dismissal
SUMMARY: Whether the dismissal of the Applicant who was found guilty of a misconduct-sexual misconduct for having shared pornographic material was fair or not
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The matter was set down as an arbitration to be heard before me over zoom on the 9th of July 2021 and such the proceedings extended to the 13th of July 2021 in order to complete the hearing timeously. During these proceedings, the Applicant, Mr Phanyaphanya was represented by Mr Sibeko Boesman of PSA while the Respondent, Department of Education: Gauteng was represented by Mrs. Kgomotso Tshiovhe.
2. The parties confirmed receipt of the notice of set down and there were no pre-liminary issues raised.
3. The parties provided a pre-arbitration minute which addressed all the necessary issues. The representatives further filed Heads of Arguments on the 19th of July 2021.
THE ISSUE IN DISPUTE
4 I am required to determine whether the Applicant was unfairly dismissed. I am further required to determine whether the Applicant committed an act of misconduct by sharing (and or sending) pornographic material.
THE BACKGROUND TO THE DISPUTE
5. In these proceedings the Applicant referred an unfair labour dismissal challenging both substantive and procedural fairness.
6. The Applicant had been charged with misconduct for having breached the Employer’s workplace rules and policies by ‘allegedly’ commenting an act of sexual misconduct when he sent pornographic material to a client of the Employer. The specific wording of the charges was
“it is alleged that on or about 24 July 2020, you conducted yourself in an improper, disgraceful and unacceptable manner in that you made sexual advances and sent pornographic video(s) to Ms Kobeli, who is client to the Department.”
7. The Applicant at the time of the incident was a fulltime employee who had been in service of same employ for a prolonged period of time.
8. The Applicant raised this application due to his dissatisfaction with the disciplinary Hearing proceedings. This arbitration hearing is a fresh hearing of the matter from the beginning.
9. The Respondent opposed the Applicant’s submissions.
10. The Respondent argued that the sanction imposed during the disciplinary hearing was befitting the seriousness of the misconduct.
SURVEY OF EVIDENCE AND ARGUMENT
11. The Respondent prepared two (2) bundles of evidence which included two (2) video messages, the parties then agreed to rely on the latter evidence as a common bundle.
12. The latter bundle was not disputed as such was admitted into evidence.
13. The Applicant (Mr Phanyaphanya) was called to testify under oath and as a witness in support of his case. A summary of his testimony will be outlined herein below.
14. The Respondent called three witnesses in support of its case. A summary of their testimony will be outlined herein below.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
15. Considering that the Respondent bore the onus to commence and was duty bound to prove the fairness of the dismissal, I shall first assess its evidence and arguments then I shall analyse the evidence and arguments of the Applicant.
16. The parties further agreed to submit written arguments to substantiate their respective case. I shall address said arguments and the averments made during the arbitration herein under.
17. I considered same and the arguments made during the arbitration proceedings.
18. The Respondent called three witnesses, namely, Mr Vogani Phephenyane, Ms Moroa Kobeli and Mr Tsibana Sabai.
19. Mr Phephenyane – who presided over the disciplinary proceedings- gave testimony relating to the procedural fairness of the disciplinary proceedings. He was cross-examined as to the fairness of allowing him to preside of the disciplinary proceedings considering the office he occupies at the Respondent and also considering that he is considered a ‘colleague’ of the Applicant. Mr Phephenyane stood firm that he merely shares a building with the Applicant however they are not on the same floor nor are they colleagues in the strict sense of the word. He mentioned that they are not in the same sub-department within the employment of the Respondent.
20. Mr Phephenyane was also questioned as to having previous interactions with the Applicant due to the Applicants union activities. To the latter, Mr Phephenyane advised that said interactions had no regard to his role as a Presiding Officer, furthermore the Applicant was at liberty to object to Mr Phephenyane’s presence at the disciplinary hearing which same objection was not made nor was an Application for Recusal made.
21. Ms Kobeli -the client of the Respondent- was called and her testimony referred to the act of being the recipient of the sexual content. During her testimony she advised that she did not consent to receive the content from the Applicant nor did she invite same as there wasn’t any cordial relationship between herself and the Applicant. She was questioned as to how she received the Applicants personal number and she advised that she received same from a party who was a colleague of the Applicant. She went on to advise that she contacted the Applicant to procure information and after contacting the Applicant on his cellular phone (per WhatsApp messaging service) she went on to address the Applicant per email to establish and maintain a professional communication. It was put to Ms Kobeli that she did not take offense to the content. Ms Kobeli’s response to the latter was that she was disgusted by the content and felt violated by the content.
22. Mr Sebai- the Deputy Director: Transformation- was called and in his testimony referred to the Sexual Harassment Policy of the Respondent. During his testimony he went on to advise what constitutes sexual harassment and what the policy advises in this regard. Mr Sebai also advised that the Applicant being an employee of the Department of Education he is aware of the policies of the employer. Mr Sebai further testified that the employer’s sexual harassment policy is of the aforementioned policies. Mr Sebai went as far as advising what constitutes sexual harassment in terms of the policy.
23. My analysis of the of Mr Phephenyane is that he was a credible witness. When cross-examined, Mr Phephenyani stood firm on his version as such even when Mr Sibeko tried introducing alternative means of ‘irregularity of his role as a presiding’ to which Mr Phephenyani raised the rights afforded to a party who takes issue with a presiding officer.
24. My analysis of Ms Kobeli as a witness is that she was disturbed by the conduct pf the Applicant to say the least. More noteworthy is the fact that Ms Kobeli expressed how unwelcome the conduct was more so seeing that she was only interested in a professional communication between herself and the Applicant.
25. My analysis of Mr Sebi is that he was a credible witness more so that he explained that the Applicant ought to be knowledgeable of what constitutes sexual harassment as such how same is against the policies of the Respondent.
26. The Applicant was called as a witness. He attested as to how Ms Kobeli contacted him on his personal cellular although as employees of the Respondents they are issued work cellular phones. He further attested that he took issue that Ms Kobeli was only given his personal cellular number by the late colleague who shared his details. He raised that he and the late colleague were not on good terms as such it is unsettling for him that his personal number was shared.
27. The Applicant further attested that his reason for sending the content was on a more educational and assistance basis because Ms Kobeli advised that her interest in a relationship with the Respondent involved the youth as such the video was sent due to concern of how the youth interact. He maintained that the content was not intended to be sexual advancements more so he did not even consider same as sexual harassment.
28. In relation to charge and the proceedings, Mr Phanyaphanya attested that he took issue with Mr Phephenyani’s appointment as the Presiding officer at the disciplinary hearing however he noted that he did not request for his recusal. Mr Phanyaphanya stood firm that the charge was irregular because it mentioned advances which he maintained were not described in the Disciplinary Code as opposed to sexual harassment which is also in a policy.
29. The parties agreed to rely on a common evidence bundle which encompassed with it several documents. The admitting of said bundle documents into evidence was not objected to as such said documents constitute evidence to be considered with the oral testimony.
30. My analysis of the Applicant’s testimony is that he remained oblivious to how his conduct constituted misconduct. When it was put to him that he knew of the Sexual Harassment policy, he responded that he knew of it however not its contents. As a seasoned employee who confirmed that he is a union activist it is improbable that he would not have taken time to peruse and familiarise himself with the policies crucial to his duties as a possible employee representative (by virtue of being a unionist).
31. I further noted that the reason from the Applicant for his conduct and as such find same reason as unacceptable. It is improbable that a seasoned employee will not be cautious of his actions as such I struggle to find the testimony of the Applicant as credible.
32. Upon perusal and consideration of the written arguments, I note the following:
32.1 The Respondent maintained that the Applicant was well aware of his role during his employment and being in the position he occupied, he had unfettered access to the workplace rules.
32.2 The Respondent further raised that the Applicant being a union official was expected to had familiarised himself with the workplace policies more especially considering the testimony by Mr Sebai- who testified of the annual communication to employees regarding gender transformation and sexual harassment-.
32.3 The Applicant raised that his disciplinary action and subsequent dismissal was misplaced considering that the charges were not drafted in concurrence with the reason for dismissal.
32.4 The Applicant further questioned the credibility of Mr Phephenyane and Ms Kobeli raising the averment that he is being targeted.
33. Charges should be drafted accurately but there is no need to do so with the precision of a criminal indictment. In EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and 2 Others (JA4/18) (LAC) the LAC confirmed that disciplinary charges need not be drafted with the precision of a criminal charge sheet and added that Courts and arbitrators should not adopt an approach which is too formalistic or technical. In considering the misconduct as it related to the disciplinary charges, the test to be used is one of prejudice. The test for prejudice in the circumstances is whether the employee would have conducted their defence differently had they known of the possibility of a ‘competent verdict’ to the charges. In other words, would the employee have conducted his defence differently had he known that even if the employer could not prove dishonesty, he could still be dismissed for gross negligence?
34. It is evident from the evidence that the Applicant was a seasoned employee who (being a proclaimed Union representative) was reasonably expected to be well versed with the policies of the Employer. Notwithstanding the latter, the Applicant ought to have considered how his conduct may have offended the recipient and how his conduct would have an effect on the employer. Although the Applicant claims that the intentions of his conduct was not as expressed by the employer and the recipient of his conduct, it ought to have been considered by himself that such actions have far reaching consequences more so since he was not invited to communicate with the recipient in such a manner.
35. Matters relating to sexual harassment are very complex in that the conduct of sexual harassment not only constitutes a criminal offence however it also constitutes a disciplinable offence when considered in an employment context. Further to the above, a commissioner considering these matters is guided by the Code of Good Practice (formerly known as the Employment Equity Act: Code of Good Practice: Handling of Sexual Harassment Cases in Workplaces) which envisages both an informal and formal procedure for addressing sexual harassment. Item 3.2 of the latter Code provides that sexual attention becomes sexual harassment if:
a) the behaviour is persisted in;
b) the recipient has made it clear that the behaviour is considered offensive and/or
c) the perpetrator should have known that the behaviour is regarded as unacceptable.”
36. In Motsamai v Everite Building Products (Pty) Ltd (JA21/08) [2010] ZALAC 23; [2011] 2 BLLR 144 (LAC) (4 June 2010) the courts placed the following:
Sexual harassment goes to the root of ones 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.
37. In Old Mutual Life Assurance SA (Pty) Ltd v Makanda and Others (JR1246/18) [2019] ZALCJHB 285; (2020) 41 ILJ 444 (LC) (14 October 2019) the courts considered a matter that pertained to a dismissal for sexual harassment and in deciding the review applied a 3 tier/ 3 principle test which considered the two parties versions and the role of the CCMA in such matters to be a gender-responsive and dispute resolution- forum. There is a duty on commissioners to be alive to the fraught nature of sexual harassment and to conduct such arbitrations with sensitivity.
38. I have considered the matter with sensitivity and have applied the above 3 tier test.
39. The Applicant not only maintained his refusal to identify his conduct as sexual harassment, he tried to motivate that the same conduct was innocent despite professing knowledge of the employer’s policy.
40. In cases of unfair dismissal the onus of proof lies on the Respondent to prove the fairness of said dismissal. The Respondent established that the Applicant transgressed a rule which said rule was in his knowledge. The Applicant knew of the policy encompassing the rule which his conduct was breaching and as such was aware of the disciplinary code ancillary to said transgression. The Respondent further established that the Applicant was subject to an internal disciplinary process which was fair and impartial.
41. In the premises I make the following award.
AWARD
42. The Applicant has failed to establish that an unfair dismissal was perpetrated against him by the Respondent. Thus his dismissal was substantively and procedurally fair.
43. The Applicant’s dispute referral is dismissed.
Yolisa Ndzuta
Panelist: ELRC
ELRC 302 -20 /21 NW
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