ELRC888-22/23KZN

IN THE ELRC ARBITRATION
BETWEEN:

PSA obo PRAVIN SUMAIR “the Applicant”
and

DEPARTMENT OF HIGHER EDUCATION & TRAINING “the Respondent”

ARBITRATION AWARD

Case Number: ELRC888-22/23KZN
Last date of arbitration: 24 OCTOBER 2023
Submission of closing arguments: 01 NOVEMBER 2023
Date of award: 17 NOVEMBER 2023
ELRC Arbitrator NTOMBIZONKE MBILI

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-Mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration commenced on 13 July 2023 and proceeded on 22 September 2023, 23 October 2023 and the presentation of evidence was finalized on 24 October 2023. Both parties thereafter requested and were granted permission to submit written closing arguments by no later than 01 November 2023.
2. The arbitration was initially held online and thereafter held at the Amajuba TVET College, Newcastle KwaZulu-Natal Department of Higher Education and Training.
3. PSA, a trade union, referred this dispute on behalf of its member, Pravin Sumair (hereinafter referred to as the Applicant). When the case reconvened on 13 July 2023, Mr Vashay Soni, an Attorney from O’DWYER INC represented the Applicant.
4. The Respondent, the Department of Higher Education & Training (the Department,) was represented by Ms Thembeka Madlala, employed by the Department as an Assistant Director for Labour Relations.
5. Bundle of documents were submitted on behalf of the Respondent and Applicant. The proceedings were digitally and manually recorded.

TERMS OF REFERENCE AND ISSUE TO BE DETERMINED

6. The arbitration is in respect of a referral by the Applicant of an alleged unfair dismissal as provided for in section 191(5)(a)(i) of the Labour Relations Act 66 of 1995 (LRA).
7. I am required to decide whether the dismissal of the Applicant was unfair and, if so, what relief ought to be granted to him. The Applicant seeks to be reinstated with retrospective effect. There is no challenge on procedure.

BACKGROUND

8. The Applicant was the Assistant Director of Facility and Record Management based at TVET College, Central Office.
9. He was dismissed following a formal disciplinary hearing at which he was charged and found guilty of the following count of misconduct:

Count 1
9.1 “Improper/disgrace and unacceptable conduct:
It is alleged that;
On or about 2017 and/or up to 28 May 2022 at or near Majuba TVET College you verbally/physically /sexually harassed Ms V. Rammoo.
Alternative to Count 1
Gross misconduct for sexually harassing the subordinate;
It is alleged that;
On or about 2017 and /or up to 28 May 2022 at or near Majuba TVET College you verbally/physically /sexually harassed Ms V Rammoo and your conduct tantamount to Gross Misconduct.
Count 2
Abuse of Powers;
It is alleged that;
On or about 2017 and/or up to 28 May 2022 at or near Majuba TVET College you abused your powers as a Supervisor by verbally/physically/sexually harassed Ms V Rammoo.

Count 3
Bring the employers name into disrepute. Your above actions had brought the name of the College into disrepute.
10. It is common cause that the Applicant was employed on 22 May 2014 and at the date of his dismissal 31 January 2023, the Applicant’s gross monthly remuneration was R393711.00.

SUMMARY OF EVIDENCE AND ARGUMENTS

The Respondent’s case
11. The employer led the evidence of three witnesses namely Nasheeba Goga, Veariksha (Vicky) Rammoo and Thamsanqa Patrick Zulu. Their evidence will be considered below.

1ST WITNESS

12. Ms Nasheeba Goga testified and stated that she was employed as a Senior Admin Clerk: Health and Safety Department at Majuba TVET College for two years.

13. She stated that Ms Rammoo accused the Applicant of sexually harassing her, and that she was called as a witness. She added that once the proceedings began it became uncomfortable to work in the same place as the Applicant and that she and Ms Rammoo were moved to a different campus.

14. Goga stated that on 28 May 2022 she and Ms Rammoo were working overtime. The Applicant was writing an exam in the boardroom on the same day and that once he was done with the exam, he went to office which he shared with Rammoo and herself. Upon his arrival at the office, he went to his desk and checked his emails. The Applicant called Rammoo to his desk to read the thread of emails that were relating to workplace development. She said that she heard Rammoo calling her name “Nash Nash Nash”. She got up from her desk and walked to the Applicant’s desk. The Applicant was leaning against the wall and the Applicant said, “I can’t do anything now because your police man is here” and he laughed. She went back to her desk and Rammoo also went back to her desk.

15. Goga explained the set-up of their office as follows: “There is a door and as you enter the office there were two desks, one on the right by the door and the other was facing the door. There were filing cabinets and behind the filing cabinets was the Applicant’s desk.” She added that Rammoo’s desk was next to the door and her desk was directly in front of the filing cabinets. She went on to state that from their desks they could see the Applicant’s desk.

16. Goga stated that before Rammoo said “Nash Nash”, she first heard shuffling and when she entered the office Rammoo was in a state of shock. She stated that after the Applicant left Rammoo told her that the Applicant attempted to grab her breasts.

17. Goga stated that there was an incident that she previously witnessed where the Applicant grabbed Rammoo’s breast and Rammoo told him to stop, the Applicant continued to grab her other breast and just laughed it off.

18. Goga explained that she wrote a statement which she later withdrew because she was afraid to lose her job. She said that the first statement was a true reflection of the events that took place. She went on to state that she attended a conference with the Applicant in June 2022 and that at the conference the Applicant threatened to not renew her contract if she did not withdraw her statement. Goga stated that she did not retain her job after being a witness of the College.

19. Goga stated that the Applicant would from time to time make sexual comments and sexual jokes to both her and Rammoo, but they still respected him as a Manager.

20. Under cross examination Goga confirmed that in the three years that she worked with the Applicant he never verbally and physically abused her. She further confirmed that she did not witness the alleged harassment on 28 May 2022.

21. She disputed that the Applicant uttered the words “I cannot do anything now because your police man is here” because she had applied in the police force.

22. Goga stated that she did not report the incidents because she was afraid of being victimized, she went on to state that Rammoo said that she would address it with the Applicant, but all her attempts failed and after the last incident she said that she had enough and would report the incident to the Human Resource Manager.

23. She said that when she was requested to undergo a drug test, she felt victimized even though it was a normal request.

24. It was put to the witness that her recollection is inherently incorrect and that she was not a credible witness. She disputed the version put to her.

25. Under re-examination Goga stated that the first statement that she submitted was not signed and it was not made under oath.

2ND WITNESS

26. Ms Veariksha Rammoo testified and stated that she was previously employed by Majuba TVET College initially as a Trainee and thereafter was permanently employed as a Senior Admin Clerk for Health and Safety.

27. She described her relationship with the Applicant as being professional and fine during the years 2012 to 2015. She stated that in 2015 the Applicant began to make sexual remarks about women in general and at that time she was not working directly with the Applicant. She said in 2015 they saw more of each other, and the sexual jokes increased. She went on to state that in 2017 when she became permanent the Applicant became physical towards her, he would touch her hand when giving her a cup. She said that in 2021 the Applicant touched her breasts and that she decided to address it with him and that he would apologies and say he was not thinking.

28. Rammoo stated that on 28 May 2022 she was working overtime with Ms Goga. The Applicant came to the workplace to write an exam and thereafter went to the office. The Applicant called her to his desk and requested that she read the thread of emails on his computer pertaining to work issues. She sat on his chair, and he stood behind her. While she was reading the emails the Applicant grabbed her breasts, in retaliation she grabbed a bottle of sanitizer and sprayed it on him. She then grabbed a ruler and hit him with it that did not deter the Applicant. She screamed for help and called Goga. The Applicant took a few steps back and put his finger on his mouth indicating that she should keep quiet. The Applicant said, “I cannot do anything now because your police Officer is here”. She said that as she walked out of the Applicant’s desk the Applicant continued to grab her left breast. Before the Applicant left, he had a discussion with Goga and that she could not recall what it was about.

29. Rammoo stated that during the encounter she blacked out and did not have time to confide to Goga about what had happened. She also did not confide to her father about the incident because they are very conservative in the Indian culture and that she wanted to protect her family and her image.

30. She stated that on the day of the incident she was wearing a v-neck top and that when she got home and took a shower, she felt a burning sensation on her breast and that she did not have a burning sensation prior to the incident, she realized that she a scratch on her breast. She confided to a colleague about the incident and further sought for legal advice to ascertain a protective order against the Applicant.

31. She said that it was not the first time that the Applicant touched her. She did not report it sooner because she was a subordinate to the Applicant, she is a quiet and independent person, and she was also afraid to lose her job. She added that the Applicant was married to her father’s first cousin which made the Applicant her uncle and that she attempted to avoid a family feud. She went on to state that she eventually reported the matter because she could not tolerate physical harassment as she ended up with an injury. She said that she was afraid for her life, she felt helpless because as the years progressed the incidents intensified and were aggressive.

32. Rammoo stated that when she addressed these incidents with the Applicant, the Applicant would say he was having issues with his wife and that how he joked. She continued to say that she did orally report the incidents to the Human Resource Manager, Thamsanqa Zulu, in 2021 and he advised her to lodge a grievance against him, but she elected to verbally speak to the Applicant.

33. She stated that after the incident on 28 May 2022, she did not report for duty and sent a message to Mr Zulu informing him that she was sexually harassed by the Applicant.

34. She stated that she and Applicant went for an interview for the same position, but she was not aware of the outcome of the interview.

35. Under cross examination the witness stated that she was initially employed as a Trainee in 2012 and thereafter employed in in a permanent position as a Health and Safety Officer in 2017. She said her duties entitled risk management, incident control, health, and safety and to ensure that the department adhered to the Health and Safety Act.

36. She stated that she was requested by the Human Resource Manager to assist in the Employee Assistance Program Department because her diploma had a Human Resource module. She agreed to volunteer because she wanted the experience as a career woman. She disputed that she occupied a position in the EAP Department and stated that she assisted in the logistics and administration duties, by expediting documentation.

37. The witness stated that in October 2021 the Applicant held her breasts and she verbally dealt with it. She confided to HR and Labour Relations about the incident but was not specific about the details of the incident, she enquired in general about the sexual harassment policy. She said that she did however mention that it was her superior but did not mention his name. It was put to the witness that the incident in October 2021 did not occur, the witness disputed this version.

38. She said that she had a close relationship with the Applicant professionally, but not a close family relationship. She continued to state that after the Applicant apologized the first time, she attempted to rebuild the professional relationship.

39. The witness confirmed that the harassment began in 2015 but she was not aware at that time that she was being sexually harassed. She was 20 years old and she did not understand the definition of sexual harassment holistically, but looking back she realized that she was being harassed. She stated that she could not give a timeline on when she trusted the Applicant and when she lost her trust for him.

40. She was then referred to page 51 of the Applicant’s bundle and stated that the document was her whatsup conversation between herself and the Applicant. She confirmed that her relationship with the Applicant was friendly after he had apologized, and she believed him. When put to her if she was still naive in 2021, she said yes and that is something that she had to work on.

41. She was referred to page 53 and was questioned whether sending a picture of her mouth sore to the Applicant was not being friendly. She answered and said she sent the picture to him in order to apply for sick leave. She was further referred to page 55 and it was put to her that the WhatsApp conversation on that page stated, “sweet dreams” and had emoji’s and that the choice of words that’s she used showed that she had more than a professional relationship with the Applicant. She answered and confirmed that it was friendly, but this was before the Applicant grabbed her breasts. She was referred to page 58 and put to her that the conversation on page 58 happened after the alleged incident of the Applicant grabbing her breasts. She said that she reached out to the Applicant regarding the POPI Act which was a sensitive matter and that after the Applicant apologized, she took the apology seriously. She was directed to page 60 and 61 and indicated that the document was WhatsApp messages between herself and the Applicant regarding the cysts on her ovaries and how it would be difficult to conceive in the future. It was put to her that she felt comfortable in discussing her cervix with her transgressor, she stated that she took the Applicant’s apology seriously and attempted to rebuild their relationship. She confirmed the conversations that she was referred to when she sought the Applicant’s advice because she had said that he was honest and complimented the Applicant and said “I wanted to tell you, but I forgot. You are so confident in the way you speak and what you say, like with AG and Thabi, I must learn from you.”

42. She stated that she did not report the incidents sooner because she found ways of dealing with it by working away from the Applicant, but if she could turn back the clock, she would do it differently. She added that she was willing to take a polygraph test at the hearing.

43. She stated that she would see the Applicant at family gatherings, but it was uncomfortable to tell her father that his cousin’s husband is cheating with his daughter.

44. When put to the witness that Goga testified and said she did not witness the harassment, Rammoo said that she cannot dispute Goga’s testimony.

45. It was put to the witness that on 28 May 2022 she was wearing a long dress with a leather top and that the Applicant disputed that he scratched her. She answered and said she was wearing pants and a V-neck top with a scarf. She added that the Investigation Officer was in possession of the original pictures of the scratch.

46. She disputed that the Applicant said “here comes the policeman” because Goga had applied to the police force and not because she was protecting her.

47. She stated that she shouted out for Goga after she had attempted to deter the Applicant by spraying him with a sanitizer and hitting him with a ruler. She stated that she does not recall having a conversation right after the incident with the Applicant regarding salaries.

48. The witness was referred to a newspaper article pertaining to a crime that had taken place in her neighborhood and that the Applicant sent the Maintenance Officer and Security Officers to her house because he was worried about her since she did not report for duty. The witness stated she reported to the HR and that the crime that the Applicant was referring to occurred after she reported him for the harassment and that crime occurred everywhere.

49. The witness confirmed that she was aware that the Applicant had applied for the same position as her because he told everyone about it. It was put to the witness that she wanted to get rid of the applicant because she wanted the Assistant Director position for herself. She knew that the Applicant was shortlisted in May 2021 and that is the sensitive issue that she wanted to talk to the Applicant about. The witness disputed this version, and that the Applicant was not her greatest competitor there were other candidates that she held in high regard. She went on to state that she was not aware that he was appointed since she was moved to another campus.

50. It was put to the witness that her actions indicated that she wanted the position for herself because when the Applicant was on suspension, she used his office and that when the Applicant was appointed as a Director, she resigned a month later. The witness argued that she only used the Applicant’s office for one to two weeks and that she resigned for an upgraded position and better salary.

51. Under re-examination the witness stated that the exchange of friendly messages with the Applicant did not give him a right to sexually harass her.

3rd WITNESS
52. Thamsanqa Patrick Zulu testified and said he was employed by the Department as an Assistant Director in Human Resource and Management Development. His duties entitled recruitment and selection, human resource development, leave and attendance management and the employee assistance program.

53. He stated that he could not recall when he became aware of the incident. He said that Rammoo came to his office on a Monday and reported that there was an incident that transpired on the weekend, and she wanted his guidance. He said that observing her state he told her to share what she was comfortable to share. He went to state that Rammoo told him that she was sexually harassed over the weekend and that he advised her to consult the Labour Relations Practitioner. She reported the matter to the Labour Relations Practitioner.

54. Zulu stated that it was not the first time that Rammoo had reported that the Applicant sexually harassed her, and at that time he gave her the same advice and she elected to not lay a formal complaint. He added that he could not recall the time frames of the reporting of the incidents. Zulu went on state that Rammoo was not offered the EAP because she wanted the matter to be kept private.

55. Under cross examination he disputed that the only incident that Rammoo reported to him was the one that took place on 28 May 2022 and that the first time Rammoo came to him she elected to not report the incident formally and the second incident he advised her to report to the Labour Relations Practitioner.

56. It was put to the witness that he was bound to report the matter as a Human Resource Manager. He said that he was bound to be confidential which is what Rammoo wanted.

57. He stated that she was nominated to be part of the community of the Employee Health and Wellness, but she resigned before the training started. The witness stated that he enquired from Rammoo if she needed assistance from the EAP program.

The Applicant’s case
58. The Applicant testified and called one witness.
1ST WITNESS

59. Mr Pravin Sumair testified and stated that he was employed by the College in 2004 and was dismissed on 31 January 2023. He initially worked as a Mechanical Engineering Lecturer for two years and that eight percent of his students were females. He said that he had a good relationship with his students. The Applicant went on to state that he became a Senior Lecturer in less than six years. He was appointed as a Health and Safety Manager and his duties entailed project management, enforcing, and implementing the Health and Safety Act across all the Colleges. He continued to say that two years later the College changed its system and that the post that could replace the Health and Safety Manager was the Acing Director for Facilities and Records Management. He said under his leadership he appointed four trainee’s and Ms Rammoo was one of the appointed trainees and that he was involved with their development and obtaining training and attending seminars.

60. The Applicant stated that he and Ms. Rammoo were family members for about 20 years and that they would meet at family gatherings. She was also employed by the College, and she was his subordinate. He said that his wife was Ms Rammoo’s father cousin and that Ms Rammoo was his niece.

61. The Applicant said that he was Rammoo’s Supervisor at work, and he treated her professionally, no favors were done in terms of the personal relationship and that her family was happy that she was under his wings at work.

62. He stated that they had a very caring professional relationship. The first time that he knew there were issues was at the hearing.

63. He stated that Goga was Initially employed as a Trainee in 2018/2019 and that she was employed as an Administration Clerk on a 12-month contract. He added that he had an excellent relationship with Goga. He said that Goga and Rammoo’s relationship started when Rammoo moved to the central office. Their relationship was good for the first year and it deteriorated when he would put Rammoo in charge when he was away from the office. Rammoo would complain about Goga and suggested that a drug test be conducted on Goga because she suspected that she was using drugs. He added that his suspicion was that Rammoo was threatened by Goga because they held the same level post and that Rammoo felt that he was neglecting her.

64. The Applicant stated that Rammoo told him that Goga had applied at the police force. He stated that he and Rammoo travelled together especially to Durban and during those trips Rammoo would at times confide in him about her personal issues.

65. The Applicant was referred to page 51 and 53 of the Applicant’s bundle and he stated that the document demonstrated that Rammoo would seek for his opinion about things like her hair, the rash on her lip because she was comfortable with him and that she trusted that he would give her his honest opinion. He was further referred to page 58 and he indicated that the document was a conversation he had with Rammoo as she wanted to discuss her being short listed for the interview. She had contacted him regarding being short listed and she wanted to remind him to prepare for the interview. He said that he was a level 3 post and the post level for the vacancy was post 9 and he did not want to apply because of the salary difference. When referred to page 60, he stated that he played the role an uncle to Rammoo, she took him as a second father figure and that is why she felt comfortable in discussing her personal issues with him. Page 61 was a discussion regarding Rammoo’s concerns about conceiving children after she gets married. He was further referred to page 62, 64, 65, 66 and 68 and he stated that the documents demonstrated that he had a trust relationship with Rammoo. They would discuss her facial hair and whether to remove it and would even joke about robbing a bank and that they would even discuss other employee’s hair.

66. The Applicant narrated the incident that took place on 28 May 2022 and said the following: He went to work to write an exam and after he finished writing the exam he proceeded to his office. When he arrived at the office Goga and Rammoo were there. He said that he went to the office because his belongings were in the office and that he knew that Goga and Rammoo were in the office working overtime. He went to his desk and read his emails and he called Rammoo to share an email which they had a common interest in. Rammoo sat on his chair, and he stood behind her. He said that she took long to read the email because she was also reading the threads of the emails. He said that he was swinging the chair from left to right and that he was teasing her because of the kind of relationship they had. He stated that Rammoo softly called out for Goga and when Goga appeared he said, “oh you got a police man” and the reason he said this was because it was common knowledge that Goga was applying to the police force. The Applicant stated that Rammoo was wearing a leather top and it impossible to scratch her. His nails were short and could not have scratched her through leather. He continued to say that after Goga returned to her desk, Rammoo continued to read the email and returned to her desk. He gathered his belongings and, on his way out he had a discussion with Rammoo about the email.

67. He stated that the document on page 72 was a message he sent to Rammoo enquiring about her whereabouts because she had not pitched up for work and that they had five meetings scheduled for that day. He said that he was anxious and surprised when he did not receive a call from her, and he seriously believed that she was hijacked. He attempted to call her several times and she did not pick up. He contacted her father and he said he left the house while she was in bed and that her mother’s phone was unanswered. The Applicant stated that he requested for assistance from Goga, AD Security and the Police because he was worried about Rammoo’s safety. He said that he read an article regarding the rise of home invasions in her neighborhood.

68. He said that on Wednesday he reported to the Deputy Director that Rammoo was absent from work, and he did not say anything. He was informed by a colleague that Rammoo had laid a grievance of sexual harassment against him.

69. The Applicant stated that he continued with his duties and was scheduled to leave with Goga to Durban for 11 days.

70. The Applicant stated that he was charged and found guilty of misconduct and that he appealed the decision to dismiss him. The suspension was uplifted because he was informed that the process to appeal could take five years. He resumed his duties and upon his return he acted as Acting Director of Facility Record and Management. He was officially appointed to the Acting Director of Facility Record and Management position in November 2022. He continued to state that he was informed by management that Rammoo had resigned after he was appointed. He said that Rammoo resigned because her plans to get rid of him and get the position for herself failed.

71. Under cross examination it was put to the witness that nowhere in the WhatsApp messages does Rammoo give him permission to sexually harass her. He answered and said she shared intimate details about her life with him and she knew that he would give her his honest opinion.

72. He disputed that he threatened Goga regarding not renewing her contract. He stated that he makes the recommendation and does not have the authority to approve contracts.

 2nd WITNESS
73. Mr Yincheong Ie-Fadsinog was called as the Applicant’s second witness. He stated that he was employed by Majuba College for 23 years and held the position of Maintenance Supervisor. He said that the Applicant was his direct Manager.

74. Mr Fadsinog stated that on 30 May 2022 the Applicant informed him that Rammoo did not show up for work. He said that he tried contacting her to no avail. He stated that together with the Applicant they went to Rammoo’s house and could not find her. They contacted the police and the local security to assist them find Rammoo but all attempts failed. He stated that he was concerned because a lady in Rammoo’s neighborhood told them that the neighborhood had a high crime rate.

75. He stated that in August 2022 Goga reported to him and that her contract was not renewed because of influence from Human Resource.
76. Under cross-examination the witness stated that the Applicant was still on suspension when the decision to not renew Goga’s contract was taken. He continued to say that Mr Shangase asked him if Goga would be of assistance in the Maintenance Department and he said no.

ANALYSIS OF EVIDENCE AND ARGUMENT

77. In disputes such as the present where an employee is dismissed on allegations of misconduct. The onus is on the applicant to establish that there was a dismissal, once the dismissal has been established it is then for the respondent to demonstrate that the dismissal was both substantively and procedurally fair. In the present case, it does not occur to me that there is a challenge on the procedural aspect of the dismissal. The challenge is focused on the substantive aspect. The applicant disputes having committed the misconduct at all. The respondent on the other hand led evidence of witnesses that testified on the misconduct.

78. The applicant was charged on allegations of sexual harassment as summarized in the evidence above. This case raises very serious issues of the power dynamics in the workplace and the effect of unwelcome sexual behavior perpetuated against an employee over a lengthy period of time.

79. The question that then remains is whether the Applicant committed the misconduct that he is charged for as expressed in the policy. Put differently, is there sufficient evidence before me to suggest that there was breach of the Rule? This invites an inquiry into the respective versions of the parties as they played out in evidence during the arbitration.

80. There were mutually destructive versions in respect to what happened here. I accordingly need to properly interrogate the versions that were presented by the parties. But before that, I would also need to have regard to the relevant legal framework which applies at this employer. The Code defines what is regarded as sexual harassment in the following light:
“WHAT IS SEXUAL HARASSMENT

2.1.1 Definition of Sexual Harassment

Sexual harassment is unwarranted conduct of a sexual nature. The unwanted nature of sexual harassment distinguishes it from behaviour that is welcome and mutual.

Sexual attention becomes sexual harassment if:

a. The behaviour is persisted in, although a single incident of harassment can constitute sexual harassment; and/or;

b. The recipient has made it clear that the behavior is considered offensive; and/or;

c. The perpetrator should have known that the behavior is regarded as unacceptable/ inappropriate.”

2.1.2 “Different Forms of Sexual Harassment
1. Sexual harassment may include unwelcome physical, verbal or non-verbal conduct, but is not limited to the to the examples as listed as follows:
a) …
b) Verbal forms of sexual harassment include unwelcome innuendoes, suggestions and hints, sexual advances, comments with sexual overtones, sex-related jokes or insults or unwelcome and/or graphic comments about a person’s body made in their presence or directed towards them, unwelcome and inappropriate enquiries about a person’s love life/sex life, and unwelcome whistling directed at a person or group of persons”.

81. The evidence before me is suggestive of some cordial relationship that initially existed between the Applicant and the complainant. This however appears to have developed into a hostile relationship where the participants were clearly not on the same page. The point at which the parties appear to have had different points of view is whether this was blatant or latent is the burning issue that must be determined.

82. The evidence that served before me is littered with undisputed versions of instances where the applicant conducted himself inappropriately towards the complainant. The applicant took the view that the complainant was a consenting participant in the series of messages that were presented at the arbitration. He seems to suggest that their relationship was quite cozy and they spoke openly and freely on various topics including relationships and they would share relationship advice. To this end the applicant argued that the complainant had simply made the allegations up because she was ambitious but did not put in sufficient work to enable her to progress in the ranks. It is further undisputed that Ms Goga heard shuffling noise and that Ms Rammoo eventually shouted out for Ms Goga. When Ms Goga appeared, the Applicant said, “your policeman is here”. The only reasonable inference that can be drawn from these facts is that the Applicant did in fact conduct himself in the way that the complainant explained throughout her evidence in respect of the incident of 28 May 2023. It is mind boggling why the Applicant would say “your police is here” if he was not engaging in the conduct that the complainant stated he was conducting himself in. To this end the Applicant’s explanation stands to be rejected as improbable.

83. The applicant on the other hand insisted that the advances made by the applicant were unwelcome to the extent that she reported the incident to a fellow employee and thereafter to the Employee Relations Department. She conceded that it took her some time to finally gather courage to report the matter as there were various relations that were at stake. This explanation is reasonable given the undisputed evidence that was given in respect of the close family relations that exist between the applicant and the complainant.

84. In the case of Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and Others [2003] (1) SA 11 (SCA) the court held that a decision maker faced with two conflicting versions before him, must make a finding on the credibility of witnesses and on the probabilities of the two versions to determine where the truth lies.

85. The witnesses called by the respondent gave their evidence fluently and confidently. They also were believable as they were not afraid to make concessions where called on to do so even where the concessions appeared to be against the respondent’s case. This accordingly gave me the impression that their evidence was most probable and credible.

86. The applicant and his witness were quite defensive in their approach and the evidence given gave me the impression that their evidence was not true for most parts. I was most concerned about the manner in which the applicant changed his approach from denying any wrongdoing on the one hand but also claiming that the complainant was a consenting participant in their “unholy” relationship.

87. the case of McGregor v Public Health and Social Development Sectoral Bargaining Council & Others (2021) 42 ILJ 1643 (CC) which is precedent on the effect of sexual harassment in the workplace. In this case the Constitutional Court held that “sexual harassment is the most heinous misconduct that plagues a workplace. Its persistence and prevalence pose a barrier to the achievement of substantive equality in the workplace and are inimical to the constitutional dream of a society founded on the values of human dignity, the achievement of equality and the advancement of human rights and freedoms and non-sexism. Not only is it demeaning to the victim, but it undermines their dignity, integrity and self-worth striking at the root of that person’s being.”

88. Whether the dismissal was fair, regard must be had to the onus as established in section 192 of the LRA. The respondent must demonstrate that the dismissal was fair.

89. Section 188 on the other hand provides that a dismissal is fair if it is effected for a fair reason and in accordance with a fair procedure. A fair reason implies a dismissal for the employee’s misconduct, capacity, or the employer’s operational requirements. An inspection into the reason for the applicant’s dismissal is that he committed acts of misconduct as outlined in the charges set out elsewhere above. The above criterion serves as a guideline to determine the substantive fairness of a dismissal.

90. The context from which the circumstances of this case arose are a typical demonstration of the abuse of power by someone in a position of authority.

91. The evidence suggests further that the self-worth and dignity of the complainant was seriously compromised whilst she was at the workplace. This is the last place that any employee would expect that they would be harmed or exposed to unwanted sexual behavior. In the premises, I believe that the applicant’s dismissal was appropriate for the misconduct that he committed, especially considering the further and lasting effects it potentially has on the victim and on the reputation of the education sector.

92. In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] 12 BLLR 1097 (CC) the following was held:
“In approaching the dismissal dispute impartially, a commissioner will take into account the totality of circumstances. He or she will necessarily consider the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must consider the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list.”

93 In this regard I find that the dismissal was appropriate and fitting for the misconduct that the Applicant was found guilty on.
I accordingly make the following award:-

1. The dismissal of the applicant, Pravin Sumair, by the respondent, the Department of Higher Education & Training, was substantively and procedurally fair.
2. The applicant’s referral is dismissed.


NTOMBIZONKE MBILI
Arbitrator 17 NOVEMBER 2023
ELRC888-22/23KZN