ELRC559-20/21WC
Text
Award Date:
24 June 2021
Text
Commissioner: Jacques Buitendag
Case No.: ELRC559-20/21WC
Date of Award: 24 June 2021
In the Arbitration between:
W C KRUGER
(Union/Applicant)
and
DEPARTMENT OF EDUCATION – WESTERN CAPE
(Respondent)
Union / Applicant’s representative: Adv. Rodriques
Telephone: 021 492 9003 / 073 516 0221
Telefax: None
Email: buksiecloete@gmail.com / madri@sa-inc.co.za
Respondent’s representative: Mr. C Voster
Telephone: 021 467 29223
Telefax: 021 425 8612
Email: Clayton.Voster@westerncape.gov.za
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The arbitration hearing under the auspices of the Education Labour Relations Council (ELRC) took place on 9 April-, and 1 June 2021 in Cape Town. The applicant, Mr. W C Kruger was represented by Adv F Rodiques, instructed by Steenkamp Abrahams Inc. Mr. C Voster represented the respondent, the Department of Education – Western Cape. The proceedings were digitally recorded.
2. At the conclusion of the arbitration the parties agreed to submit written heads of argument by no later than 9 June 2021. I have received the arguments of the parties on this day. I consider 9 June 2021 being the final day of the arbitration.
THE ISSUE IN DISPUTE
3. I must determine whether or not the respondent fairly dismissed the applicant. If the dismissal was unfair, I must determine the appropriate relief.
BACKGROUND TO THE ISSUE
4. The applicant was employed as the Principal of Elswood Primary School. On or about 9 July 2020 the respondent informed the applicant to attend a disciplinary hearing and answer to the following charges:
“Charge 1
It is alleged that you are guilty of misconduct in terms of section 18(1)(dd) of the Employment of Educators Act, no. 76 of 1998 (hereinafter referred to as the Act), in that on or about 19 February 2020, you committed a statutory offence in terms of section 5(1) of the Sexual Offences and Related Matter Amendment Act 32 of 2007, by unlawfully and or intentionally sexually assaulting Ms N van Rhyn, a member of the School Governing Body by touching and/or grabbing her buttocks.
Alternative to charge 1
It is alleged that you are guilty of misconduct in terms of section 18(1)(q) of the Act, in that on or about 19 February 2020, whilst on duty, you acted in an improper, disgraceful and or unacceptable manner by touching and/or grabbing the buttocks of Ms N van Rhyn, a member of the School Governing Body.”
5. The disciplinary hearing was held on 21 and 22 July 2020. At the disciplinary hearing the applicant pleaded not guilty to charges. The chairperson of the disciplinary hearing found the applicant not guilty on charge 1 but guilty on the alternative charge. The chairperson dismissed the applicant. The applicant lodged an appeal against the finding and sanction with the Minister of Education – Western Cape. On 13 November 2020 the Minister dismissed the applicant’s appeal. The applicant earned R44 102.94 per month at the time of his dismissal.
6. The applicant referred an unfair dismissal dispute to the ELRC and a certificate of non resolution of the dispute was issued on 29 January 2021. On 3 February 2021 the applicant requested for arbitration of the dispute.
7. The applicant claims that the dismissal was unfair and he seeks retrospective reinstatement as primary relief. The respondent claims that the applicant’s dismissal was fair.
SUMMARY OF EVIDENCE AND ARGUMENT
8. During the proceedings both parties submitted documents into evidence. The respondent called four witnesses and the applicant testified. I have considered all the evidence and argument presented in this arbitration, but because section 138(7) of the Labour Relations Act, 66 of 1995 (LRA) requires an award to be issued with brief reasons for the findings, I shall only refer to the evidence that I regard as necessary to substantiate my findings in the determination of the dispute.
The respondent’s case
9. Ms. Natasha van Rhyn testified under oath. She was a member of the School Governing Body (SGB) at Elswood Primary School for about 6 years when the incident between her and applicant happened on 19 February 2020.
10. During 2019 she assisted with administrative and library duties at the school before finding employment at a creche.
11. On 19 February 2020 she was at the school and decided to pay the applicant a visit in his office. When she entered the applicant’s office, he told her that he has not seen her for while and asked if he can give her a hug. The applicant came from behind his desk, gave her a hug and then pressed her buttocks. She was upset about the applicant’s conduct and left his office.
12. The incident bothered her as she has not given the applicant cause to behave like that. She and the applicant never hugged each other before this incident. She did not tell her husband and brothers about the incident because she feared what they might do to the applicant.
13. Sometime after the incident she attended a sexual harassment workshop and thereafter decided to confront the applicant. She went to the applicant’s office and told him that she is upset about what he has done and that it was not right. The applicant replied that he thought that he “could make her” (in Afrikaans – “Tessa ek het gedink ek kan vir jou maak”). This meant that he thought they could have sex.
14. Ms. van Rhyn left the applicant’s office and went to the office of Mr. Arendse, the Deputy Principal. She asked Mr. Arendse to accompany her to the applicant’s office. In the applicant’s office she explained to Mr. Arendse what happened on 19 February 2021. Mr. Arendse told the applicant that his work and marriage is in jeopardy and asked the applicant if he required assistance. Mr. Arendse further asked her whether they must attempt to find a solution or whether she will lay a complaint. The applicant remained silent throughout this exchange. She told Mr. Arendse that she going to Mr. Mahona (the Circuit Manager). The applicant asked Mr. Arendse to leave the office so that he can speak to her in private.
15. After Mr. Arendse left, the applicant apologised for his conduct. The applicant informed her that there were complaints against at the Circuit Office and that he cannot afford to have another compliant lodged against him. He offered her R3000.00. She declined the offer and felt even more upset. She told the applicant that he can give her R300.00 to visit a doctor. The applicant gave her the R300.00. She went to Mr. Arendse’s office and burst out in tears. From there she went to consult a doctor.
16. The following day she reported the incident to Mr. Mahona (the Circuit Manager) and presented the medical certificate to Mr. Kolkota (an Admin Clerk at the school) to show that she consulted a doctor. She also filed criminal charges against the applicant.
17. Under cross-examination it was put to Ms. van Rhyn that she had a motive of falsely accusing the applicant; that the applicant never touched her buttocks; and did not offer her R3000.00. Ms. van Rhyn maintained with her version.
18. With regards to motive, it was put to Ms. van Rhyn that she was upset about the warnings given to her son and the fact that he was suspended from school for 7 days in 2019 for drug use. Ms. van Rhyn conceded that she was upset at the time with not being informed of her son’s suspension. She only found out when her mother informed her that her son was not at school. She added that she was grateful to the applicant and Mr. Arendse because they helped arranged for her son’s rehabilitation.
19. A second motive put to Ms. van Rhyn was that she and her mother was upset because they believed the applicant dragged his feet in applying for her mother’s foster son to be placed in a special needs school. Ms. van Rhyn confirmed that she and her mother was at the school to address the issue of a special needs school but said that she was not upset with the applicant. Mr. Arendse also attended the meeting.
20. Mr. J. J. Arendse testified under oath. He is the school’s Deputy Principal. He knows the applicant since his appointment in 2018. They were colleagues and friends and he was shocked when he heard the allegations. He knows Ms. van Rhyn as a SGB member and has experienced her as a convivial and friendly person.
21. Ms. van Rhyn called him one day to accompany her to the applicant’s office. In the applicant’s office she conveyed her unhappiness that the applicant has touched her buttocks. He expected the applicant to react but he remained silent whilst the applicant explained what had happened. Mr. Arendse told the applicant and Ms. van Rhyn that the allegation is very serious. He asked the applicant whether has a problem, sexually speaking, and suggested that the applicant considers a wellness programme.
22. The applicant then said that he is a sorry and will do everything to make it right. He asked Mr. Arendse to leave so that he can speak to the applicant alone. The applicant initially objected but when the applicant repeated the request she agreed and Mr. Arendse left the office.
23. After a while the applicant entered his office crying and told him that the applicant offered her R3000.00. Ms. van Rhyn said that she will lodge a formal complaint.
24. The following day the applicant presented a medical certificate that she visited the doctor with R300.00 that the applicant has given her for a doctor’s appointment.
25. Under cross-examination Mr. Arendse testified that Ms. van Rhyn was glad that her son was suspended and that they have assisted her with getting help for her son. She was only upset about not being informed of the suspension. Mr. Arendse confirmed that Ms. van Rhyn addressed the issue of the mother’s foster child with them and was seeking answers because the school was struggling to get the child transferred to a special needs school.
26. Mr. T Kolkota testified under oath. He testified that either in February- or beginning of March 2020 he saw Ms. van Rhyn leaving the applicant’s office. She seemed upset. The applicant told him that Ms. van Rhyn alleges that he touched her buttocks. He told the applicant that he will have talk with her.
27. After work he went to the applicant. She told him that she has already laid a complaint against the applicant with Mr Mahona and at the SAPS.
28. Some educators at the school, Ms. Philips, Ms. Zoutman and Ms. Fortuin said that they were uncomfortable in the applicant’s presence and with some of his utterances.
29. Under cross-examination Mr. Kolkota said that the educators laid a complaint against the applicant in either 2018/19.
30. Mr. R Mahona testified under oath. He is the Circuit Manager for District 3 and the applicant’s manager. He had a good working relationship with the applicant.
31. During March 2019 he discussed with the applicant his conduct which was allegedly improper, disgraceful and unacceptable. Four female educators complained about alleged unprofessional comments the applicant made which carried a sexual undertone. The applicant denied the allegations. In the meeting the applicant indicated that he might have uttered the comment “jy is sexy” (you are sexy) as it is his nature to make jokes with people. He issued the applicant with a verbal warning.
32. Under cross-examination Mr. Mahona stated that he is aware of the respondent’s sexual harassment policy. Ms. van Rhyn opted to lay a formal complaint. The agreed that the policy might not have been followed in all respects.
The applicant’s case
33. Mr. D E Kruger testified under oath. He has been an educator since 1987 and the Principal at Elswood Primary since 2018.
34. In as far as the verbal warning that was issued in March 2019 is concerned, the applicant testified that he was unaware of the precise complaints against him. It is his nature to give compliments to woman.
35. On 19 February 2019 Ms. van Rhyn visited him in his office. He saw that she was upset and asked her if he can give her a hug. He stood up from his desk, went to Ms. van Rhyn and they hugged each other. He did not touch her buttocks. They discussion school matters for a while and she left.
36. The applicant referred to the incident register which shows 2019 incidents of misconduct at the school by the applicant’s son. He testified that her son was subjected to a SGB disciplinary committee and was suspended for drug use. The applicant was upset about her son’s suspension and questioned it with the Circuit Manager.
37. There was also in incident at the end of February/March 2021where Ms. van Rhyn accused him of not doing his work to get her mother’s foster child admitted to a special needs school.
38. About a week after this incident the applicant accused him of touching her buttocks. He was surprised by the allegation and told her that he does not have any idea what she is talking about. The applicant asked him to see Mr. Arendse and left his office.
39. When the applicant returned with Mr. Arendse, she made the same allegation. He remained silent because he did not want to incriminate himself. He also decided not to respond as people frequently enters his office. He requested Mr. Arendse to leave his office so that he can speak to Ms. van Rhyn in private as he does not want to discuss the matter in front of Mr. Arendse who is his subordinate. The applicant denied that he offered Ms. van Rhyn R3000.00.
40. In their private meeting he asked Ms. van Rhyn why she is making the allegations. She indicated that she wanted to consult a doctor. In as far as the R300.00 that he gave to her is concerned the applicant explained that he has often in the past gave Ms. van Rhyn money because she was struggling financially. They were good friends and when she said that she wanted to consult a doctor, he concluded that she wanted money. The next day she handed in a medical certificate showing that she visited a doctor.
41. About the respondent’s sexual harassment policy, the applicant testified that the respondent has not complied with the policy and that he never received the written complaint of Ms. van Rhyn or was asked to respond to the allegations.
42. Under cross-examination it was put to the applicant that the incident of Ms. van Rhyn’s son suspension was in 2019 and that is improbable that Ms. van Rhyn would wait months before acting on it. The applicant maintained that Ms. van Rhyn had motive and testified that she and her mother wanted to get back at him because of her mother’s foster child which was not transferred to a special needs school.
43. The applicant reiterated that he was silent during the meeting with Ms. van Rhyn and Mr. Arendse because he did not want to incriminate himself and said things that could be used against him later. He also did not want to discuss it in front of Mr. Arendse.
Closing arguments
44. The comprehensive heads of arguments of the parties are on record and I do not find it necessary to repeat it here in full. If I do not mention a particular argument it does not imply that it was not considered.
45. In short, Mr. Vorster argued that Ms. van Rhyn had no motive to fabricate the allegations against the applicant. The applicant is guilty of serious allegations; was dishonest during the arbitration by maintaining his innocence and in spite of the previous warning continued with his unethical conduct. The employment relationship is broken and applicant’s application ought to be dismissed.
46. Adv. Rodriques argued that the applicant’s version that he did not touch Ms. van Rhyn buttocks is more probable. It cannot be dispelled that Ms. van Rhyn had motive to lie because of the treatment of her son and the argument she had with the applicant about her mother’s foster child. Ms. van Rhyn’s version that the applicant offered her R3000.00 is questionable and untrue. The applicant version as to why he kept quite in the meeting with Mr Arendse and Ms. van Rhyn is plausible. It was only after the sexual harassment workshop that the applicant conveniently realised that she was sexually harassed. The respondent did not investigate the allegations in terms of its own sexual harassment policy. The applicant is not guilty of the allegation and he ought to be reinstated.
47. Even if it is found that the applicant did touch Ms. Van Rhyn’s buttocks, the sanction of dismissal was too harsh. His conduct cannot be regarded as sexual harassment as Ms. van Rhyn did not indicate that it was unwelcome and she approached the applicant only to seek an apology. There is no evidence that her dignity was violated. The applicant has 34 years of service and the respondent suffered no prejudicial consequences. If the matter was handled in terms of the respondent’s sexual harassment policy it would most likely have been resolved in an informal process.
ANALYSES OF EVIDENCE AND ARGUMENTS
48. Section 192 of the LRA provides that the employee must establish the existence of a dismissal and if that has been established the employer bears the onus to prove on a balance of probabilities that the dismissal is fair. It is common cause that the respondent dismissed the applicant.
49. In deciding the substantive fairness of the applicant’s dismissal, I must consider Schedule 8, item 7 of the Code of Good Practice on Dismissal. In this regard the Code states that an arbitrator must consider:
“Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to the workplace; and if a rule or standard was contravened, whether or not
• the rule was a valid or reasonable rule or standard
• the employee was aware, or could reasonably be expected to have been aware, of the rule or standard
• the rule or standard has been consistently applied by the employer and
• dismissal was an appropriate sanction for the contravention of the rule or standard”
50. The applicant’s case is that he has not contravened a workplace rule and did not grab or touch Ms. van Rhyn’s buttocks.
51. When an employee denies the allegation(s) against him of her, the onus is on the employer to prove the allegation on a balance of probability. In WESUSA & Others vs Jacobz 2000 8 BLLR 977 (LC), the Court remarked that “the onus will be discharged if the respondent can show credible evidence that its version is the more probable and acceptable version. The credibility and the improbability of what they say should not be regarded as a separate enquiry to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondents version, an investigation where the questions of demeanour and impression are measured against the content of a witness’s evidence, where the importance of any discrepancies and contradiction is assessed and where a particular story is tested against the facts which cannot be disputed and against the inherent probabilities, so that a the end of the day one can say with conviction that one version is false and be rejected with safety”. The Respondent thus carries the responsibility to ensure that it present sufficient evidence during this de novo arbitration proceedings to prove the allegations and fairness of the dismissal. The onus will not be discharged by raising mere suspicions of misconduct.
52. Two conflicting versions of what has transpired in the applicant’s office on 19 February 2020 was presented during this arbitration. The piece of the puzzle to untangle here is whether or not the applicant, on the balance of probabilities, did indeed grab or touched Ms. van Rhyn’s buttocks. In Department of Health KZN v PSA and others (DA 4/15) (2018) 39 ILJ 1719 (LAC) (handed down on 20 March 2018) the Commissioner was also faced with two conflicting versions. The Court held that the determination of such disputes needs an assessment of the credibility of evidence and the decision arrived at on a balance of probabilities. Where the common cause facts and probabilities cast doubt on the employees’ version, the version of employer should be accepted.
53. It is common cause that Ms. van Rhyn visited the applicant in his office at Elswood Primary School on 19 February 2020. It is also common cause that the applicant and Ms. van Rhyn engaged in a hug. According to Ms. van Rhyn, the applicant asked her for a hug because they have not seen each other for a while. According to the applicant he offered Ms. van Rhyn a hug because he saw that she was upset. Whatever the applicant’s motivation was, the fact is that he was the one who has initiated the hug.
54. The applicant version is that Ms. van Rhyn is making the false allegation because 1) she was upset with him about the fact that her son was suspended without her knowing about it and 2) because of the argument they had about her mother’s foster child transfer to a special needs school.
55. If Ms. van Rhyn’s motivation to fabricate the allegation must be found in her child’s suspended in 2019, it must also be found that she decided to wait months before seeking retribution. This notion is improbable.
56. It is also improbable that Ms. van Rhyn would go to such lengths as to make up the allegation because of the issue of her mother’s foster child transfer to a special needs school. If she wanted retribution or revenge or was seeking some form of distorted justice then the natural course of action would be to directly approach Mr. Arendse or Mr. Mahona with the allegation and not to first confront the applicant alone in his office. Moreover, the allegation would not have resolved the issue of her mother’s foster child being transferred.
57. If the applicant was aware that their relationship was not on a good footing because of her child’s suspension, why would he often give Ms. van Rhyn money, as he himself testified? And why would he hug a person who is not on good footing with him?
58. I find the contention that Ms. Van Rhyn had motive to fabricate the allegation improbable.
59. The applicant’s explanation why he remained silent when Ms. van Rhyn returned to his office to again voiced the allegation, this time in the presence of Mr. Arendse is problematic. The applicant first testified he remained silent because he did not want to incriminate himself. But when the applicant was asked if there was another reason for his silence, he paused for significant period before answering, and then offered a 2nd explanation that it was because people frequently enter his office. If the applicant remained silent because people frequently enter his office then why would he ask Mr. Arendse to leave his office and then be comfortable to discuss the allegation with Ms. van Rhyn alone in the same office? This 2nd explanation does not make sense. The applicant 3rd explanation as to why he kept silent is because he was uncomfortable to discuss the matter in front of Mr. Arendse, who is his 2nd in charge. And yet, the applicant told an admin clerk, Mr Kolkota, after the meeting that Ms. van Rhyn alleges that he touched her buttocks. Why disclose it to a junior person at the school but not wanting to discuss it in the presence of Mr. Arendse?
60. It is evident that Mr. Arendse also had the applicant’s interest at heart during the meeting. He told the applicant in Ms. van Rhyn’s presence that the allegation is serious, asked Ms. van Rhyn whether they must attempt to find a solution or whether she will lay a complaint and asked the applicant whether he would like to attend a wellness programme. In this atmosphere, the applicant could have denied the allegation in front of a witness, who was also his trusted colleague. Surely the applicant had missed a golden opportunity to deny the allegation in front of Mr. Arendse, that is off course, if the allegations was untrue. Except for the explanation that he did not want to incriminate himself, I find the applicant’s other explanations for keeping silent and not denying the allegations in front of Mr. Arendse improbable.
61. Instead, the applicant’s response (as per Mr. Arendse’s testimony which I have no reason to reject) was to say that he is a sorry; that he will do everything to make it right; and that Mr. Arendse should leave so that he can speak to the applicant alone. It is improbable that the applicant would have said that he is sorry and that he will do everything to make it right if the allegation was false. It is more probable that there was truth in the allegation and therefore the applicant said that he is sorry and wanted to speak to the applicant alone.
62. Ms. van Rhyn’s version is that the applicant offered her R3000.00 when they were alone. The applicant denies that he offered her R3000.00. Ms. van Rhyn testified that when the applicant offered the money he said that there were previous complaints against him at the Circuit Office and that he cannot afford to have another compliant lodged against him. Her evidence that the applicant disclosed this to her was uncontested. That Ms. van Rhyn was upset when she left his office after their private conversation is uncontested. Mr. Arendse corroborated her evidence that she went to him, burst out in tears and told him about the R3000.00 that the applicant has offered. The probabilities favour an inference that the applicant indeed offered Ms. van Rhyn R3000.00. This is not the conduct of an innocent man. It is more the conduct of a man that knows that if another woman complains at the District Office about him that there will be dire consequences and wants to prevent that at all cost. This probably also explains why the applicant would give his accuser R300.00 to visit a doctor. The improbabilities in the applicant’s version goes to the heart of his credibility as a witness.
63. I have no reason to question the credibility of Messrs. Arendse, Kolkota and Mahona. Ms. van Rhyn may have expressed herself in an uncultivated manner during her testimony but she was consistent, never wavered from her version and appeared still to be upset about the applicant’s conduct. Her explanation as to why she did not immediately report the incident is not strange and is probable. She also did not seek revenge but went to the applicant and confronted him alone in his office. Then instead of apologising, the applicant replied that he thought that he “could make her”. I have no reason to doubt her credibility.
64. Having considered all the evidence, I find Ms. van Rhyn’s version that the applicant pressed her buttocks during their hug the more probable version.
65. Section 18(1)(q) of the Employment of Educators Act, no. 76 of 1998 provides that misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she, while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner. The applicant did not dispute that he is aware of the rule and standard in the workplace. He further did not dispute that the rule was consistently applied. The applicant also did not dispute that to touch or grab the buttocks of a person without consent is improper, disgraceful and unacceptable (especially in the context of a Principal at a school doing this to a SGB member on school premises). I find that the applicant’s conduct has contravened section 18(1)(q).
66. In deciding the substantive fairness of the applicant’s dismissal, I must take into account the principals laid down by the Constitutional Court in Sidumo and Congress of South African Trade Unions v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC). The Constitutional Court held that fairness requires a balancing of the interest of the employer and employee parties. An arbitrator must consider the totality of circumstances in determining the fairness of the sanction. In terms of the Sidumo judgment, the commissioner must inter alia:
• take into account the importance of the rule that was breached, the reason why the employer imposed the sanction of dismissal and the basis of the employee’s challenge to the dismissal
• consider the harm caused by the employee’s conduct and whether the misconduct is serious and makes a continued employment relationship intolerable
• consider whether additional training and instruction may result in the employee not repeating the misconduct
• consider the effect of dismissal on the employee
• consider the employee’s service record
67. The applicant was the Principal of a primary school and I must take into account that the Constitutional Court in Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 CC, held that section 28 of the Constitution impresses an obligation on all those who make decisions concerning children to ensure that the best interest of the children enjoy paramount importance. Courts and administrative authorities are constitutionally bound to give consideration to the effect their decision will have on children’s lives.
68. The conduct of the applicant in his capacity as a Principal towards Ms. Van Rhyn during the hug that he initiated was not only inappropriate and unacceptable. Pressing her buttocks was disgraceful and uninvited. Instead of apologising to Ms. Van Rhyn, the applicant told Ms. Van Rhyn that he thought that he “could make her” and later he attempted to pay for her silence. This is not the example that a Principal must set at a school.
69. The applicant has been previously warned about his conduct towards woman. This warning unfortunately did not have the desired corrective effect.
70. The applicant has maintained his innocence during this arbitration and has showed no remorse. In De Beers Consolidated Mines (Ltd) v CCMA & Others (2000) 21 ILJ 1051 (LAC) the court observed that: “Acknowledgement of wrong-doing is the first step towards rehabilitation”. This first step was not taken by the applicant.
71. I have taken into account the effect that the dismissal has on the applicant as well as his years of service. But in Member of the Executive Council for Finance, KwaZulu-Natal & another v Dorkin NO & another [2008] 6 BLLR 540 (LAC) the court held the no mitigating factors could possibly be raised in favour of an employee who had committed what is viewed as very serious misconduct.
72. I am persuaded that the applicant has caused irreparable damage to the trust relationship
73. The applicant party argued that the respondent has not followed its own sexual harassment policy. It is notable that the applicant was not specifically charged with sexual harassment but instead with improper, disgraceful and unacceptable conduct. In as far as the procedural fairness of the dismissal is concerned, the Labour Court held in Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (2006) 27 ILJ 1644 (LC) that at the conception of procedural fairness incorporated into the LRA is one that requires an investigation into any alleged misconduct by the employer, an opportunity by any employee against whom any allegation of misconduct is made, to respond after a reasonable period with the assistance of a representative, a decision by the employer and notice of that decision. The Court held that this approach represents a significant and fundamental departure from what might be termed the 'criminal justice' model. The Court said that true justice for workers lies in a right to an expeditious and independent review of the employer’s decision to dismiss, with reinstatement as the primary remedy when the substance of employer decisions is found wanting.
74. It is clear that in deciding whether a procedure was fair, commissioners should not adopt an overly technical approach and should bear in mind that the purpose of the recommended procedure is to provide an opportunity for dialogue and reflection regarding whether a fair reason for dismissal or some other sanction exists.
75. The documentary evidence shows that the applicant was notified of the allegations against him; was informed of his rights; and has presented his case during the disciplinary enquiry. The applicant was informed of the reasons for his dismissal was afforded an appeal. I find the dismissal procedurally fair.
AWARD
I find that the dismissal of the applicant was fair. The application is dismissed.
ELRC Panellist: Jacques Buitendag
Case No.: ELRC559-20/21WC
Date of Award: 24 June 2021
In the Arbitration between:
W C KRUGER
(Union/Applicant)
and
DEPARTMENT OF EDUCATION – WESTERN CAPE
(Respondent)
Union / Applicant’s representative: Adv. Rodriques
Telephone: 021 492 9003 / 073 516 0221
Telefax: None
Email: buksiecloete@gmail.com / madri@sa-inc.co.za
Respondent’s representative: Mr. C Voster
Telephone: 021 467 29223
Telefax: 021 425 8612
Email: Clayton.Voster@westerncape.gov.za
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The arbitration hearing under the auspices of the Education Labour Relations Council (ELRC) took place on 9 April-, and 1 June 2021 in Cape Town. The applicant, Mr. W C Kruger was represented by Adv F Rodiques, instructed by Steenkamp Abrahams Inc. Mr. C Voster represented the respondent, the Department of Education – Western Cape. The proceedings were digitally recorded.
2. At the conclusion of the arbitration the parties agreed to submit written heads of argument by no later than 9 June 2021. I have received the arguments of the parties on this day. I consider 9 June 2021 being the final day of the arbitration.
THE ISSUE IN DISPUTE
3. I must determine whether or not the respondent fairly dismissed the applicant. If the dismissal was unfair, I must determine the appropriate relief.
BACKGROUND TO THE ISSUE
4. The applicant was employed as the Principal of Elswood Primary School. On or about 9 July 2020 the respondent informed the applicant to attend a disciplinary hearing and answer to the following charges:
“Charge 1
It is alleged that you are guilty of misconduct in terms of section 18(1)(dd) of the Employment of Educators Act, no. 76 of 1998 (hereinafter referred to as the Act), in that on or about 19 February 2020, you committed a statutory offence in terms of section 5(1) of the Sexual Offences and Related Matter Amendment Act 32 of 2007, by unlawfully and or intentionally sexually assaulting Ms N van Rhyn, a member of the School Governing Body by touching and/or grabbing her buttocks.
Alternative to charge 1
It is alleged that you are guilty of misconduct in terms of section 18(1)(q) of the Act, in that on or about 19 February 2020, whilst on duty, you acted in an improper, disgraceful and or unacceptable manner by touching and/or grabbing the buttocks of Ms N van Rhyn, a member of the School Governing Body.”
5. The disciplinary hearing was held on 21 and 22 July 2020. At the disciplinary hearing the applicant pleaded not guilty to charges. The chairperson of the disciplinary hearing found the applicant not guilty on charge 1 but guilty on the alternative charge. The chairperson dismissed the applicant. The applicant lodged an appeal against the finding and sanction with the Minister of Education – Western Cape. On 13 November 2020 the Minister dismissed the applicant’s appeal. The applicant earned R44 102.94 per month at the time of his dismissal.
6. The applicant referred an unfair dismissal dispute to the ELRC and a certificate of non resolution of the dispute was issued on 29 January 2021. On 3 February 2021 the applicant requested for arbitration of the dispute.
7. The applicant claims that the dismissal was unfair and he seeks retrospective reinstatement as primary relief. The respondent claims that the applicant’s dismissal was fair.
SUMMARY OF EVIDENCE AND ARGUMENT
8. During the proceedings both parties submitted documents into evidence. The respondent called four witnesses and the applicant testified. I have considered all the evidence and argument presented in this arbitration, but because section 138(7) of the Labour Relations Act, 66 of 1995 (LRA) requires an award to be issued with brief reasons for the findings, I shall only refer to the evidence that I regard as necessary to substantiate my findings in the determination of the dispute.
The respondent’s case
9. Ms. Natasha van Rhyn testified under oath. She was a member of the School Governing Body (SGB) at Elswood Primary School for about 6 years when the incident between her and applicant happened on 19 February 2020.
10. During 2019 she assisted with administrative and library duties at the school before finding employment at a creche.
11. On 19 February 2020 she was at the school and decided to pay the applicant a visit in his office. When she entered the applicant’s office, he told her that he has not seen her for while and asked if he can give her a hug. The applicant came from behind his desk, gave her a hug and then pressed her buttocks. She was upset about the applicant’s conduct and left his office.
12. The incident bothered her as she has not given the applicant cause to behave like that. She and the applicant never hugged each other before this incident. She did not tell her husband and brothers about the incident because she feared what they might do to the applicant.
13. Sometime after the incident she attended a sexual harassment workshop and thereafter decided to confront the applicant. She went to the applicant’s office and told him that she is upset about what he has done and that it was not right. The applicant replied that he thought that he “could make her” (in Afrikaans – “Tessa ek het gedink ek kan vir jou maak”). This meant that he thought they could have sex.
14. Ms. van Rhyn left the applicant’s office and went to the office of Mr. Arendse, the Deputy Principal. She asked Mr. Arendse to accompany her to the applicant’s office. In the applicant’s office she explained to Mr. Arendse what happened on 19 February 2021. Mr. Arendse told the applicant that his work and marriage is in jeopardy and asked the applicant if he required assistance. Mr. Arendse further asked her whether they must attempt to find a solution or whether she will lay a complaint. The applicant remained silent throughout this exchange. She told Mr. Arendse that she going to Mr. Mahona (the Circuit Manager). The applicant asked Mr. Arendse to leave the office so that he can speak to her in private.
15. After Mr. Arendse left, the applicant apologised for his conduct. The applicant informed her that there were complaints against at the Circuit Office and that he cannot afford to have another compliant lodged against him. He offered her R3000.00. She declined the offer and felt even more upset. She told the applicant that he can give her R300.00 to visit a doctor. The applicant gave her the R300.00. She went to Mr. Arendse’s office and burst out in tears. From there she went to consult a doctor.
16. The following day she reported the incident to Mr. Mahona (the Circuit Manager) and presented the medical certificate to Mr. Kolkota (an Admin Clerk at the school) to show that she consulted a doctor. She also filed criminal charges against the applicant.
17. Under cross-examination it was put to Ms. van Rhyn that she had a motive of falsely accusing the applicant; that the applicant never touched her buttocks; and did not offer her R3000.00. Ms. van Rhyn maintained with her version.
18. With regards to motive, it was put to Ms. van Rhyn that she was upset about the warnings given to her son and the fact that he was suspended from school for 7 days in 2019 for drug use. Ms. van Rhyn conceded that she was upset at the time with not being informed of her son’s suspension. She only found out when her mother informed her that her son was not at school. She added that she was grateful to the applicant and Mr. Arendse because they helped arranged for her son’s rehabilitation.
19. A second motive put to Ms. van Rhyn was that she and her mother was upset because they believed the applicant dragged his feet in applying for her mother’s foster son to be placed in a special needs school. Ms. van Rhyn confirmed that she and her mother was at the school to address the issue of a special needs school but said that she was not upset with the applicant. Mr. Arendse also attended the meeting.
20. Mr. J. J. Arendse testified under oath. He is the school’s Deputy Principal. He knows the applicant since his appointment in 2018. They were colleagues and friends and he was shocked when he heard the allegations. He knows Ms. van Rhyn as a SGB member and has experienced her as a convivial and friendly person.
21. Ms. van Rhyn called him one day to accompany her to the applicant’s office. In the applicant’s office she conveyed her unhappiness that the applicant has touched her buttocks. He expected the applicant to react but he remained silent whilst the applicant explained what had happened. Mr. Arendse told the applicant and Ms. van Rhyn that the allegation is very serious. He asked the applicant whether has a problem, sexually speaking, and suggested that the applicant considers a wellness programme.
22. The applicant then said that he is a sorry and will do everything to make it right. He asked Mr. Arendse to leave so that he can speak to the applicant alone. The applicant initially objected but when the applicant repeated the request she agreed and Mr. Arendse left the office.
23. After a while the applicant entered his office crying and told him that the applicant offered her R3000.00. Ms. van Rhyn said that she will lodge a formal complaint.
24. The following day the applicant presented a medical certificate that she visited the doctor with R300.00 that the applicant has given her for a doctor’s appointment.
25. Under cross-examination Mr. Arendse testified that Ms. van Rhyn was glad that her son was suspended and that they have assisted her with getting help for her son. She was only upset about not being informed of the suspension. Mr. Arendse confirmed that Ms. van Rhyn addressed the issue of the mother’s foster child with them and was seeking answers because the school was struggling to get the child transferred to a special needs school.
26. Mr. T Kolkota testified under oath. He testified that either in February- or beginning of March 2020 he saw Ms. van Rhyn leaving the applicant’s office. She seemed upset. The applicant told him that Ms. van Rhyn alleges that he touched her buttocks. He told the applicant that he will have talk with her.
27. After work he went to the applicant. She told him that she has already laid a complaint against the applicant with Mr Mahona and at the SAPS.
28. Some educators at the school, Ms. Philips, Ms. Zoutman and Ms. Fortuin said that they were uncomfortable in the applicant’s presence and with some of his utterances.
29. Under cross-examination Mr. Kolkota said that the educators laid a complaint against the applicant in either 2018/19.
30. Mr. R Mahona testified under oath. He is the Circuit Manager for District 3 and the applicant’s manager. He had a good working relationship with the applicant.
31. During March 2019 he discussed with the applicant his conduct which was allegedly improper, disgraceful and unacceptable. Four female educators complained about alleged unprofessional comments the applicant made which carried a sexual undertone. The applicant denied the allegations. In the meeting the applicant indicated that he might have uttered the comment “jy is sexy” (you are sexy) as it is his nature to make jokes with people. He issued the applicant with a verbal warning.
32. Under cross-examination Mr. Mahona stated that he is aware of the respondent’s sexual harassment policy. Ms. van Rhyn opted to lay a formal complaint. The agreed that the policy might not have been followed in all respects.
The applicant’s case
33. Mr. D E Kruger testified under oath. He has been an educator since 1987 and the Principal at Elswood Primary since 2018.
34. In as far as the verbal warning that was issued in March 2019 is concerned, the applicant testified that he was unaware of the precise complaints against him. It is his nature to give compliments to woman.
35. On 19 February 2019 Ms. van Rhyn visited him in his office. He saw that she was upset and asked her if he can give her a hug. He stood up from his desk, went to Ms. van Rhyn and they hugged each other. He did not touch her buttocks. They discussion school matters for a while and she left.
36. The applicant referred to the incident register which shows 2019 incidents of misconduct at the school by the applicant’s son. He testified that her son was subjected to a SGB disciplinary committee and was suspended for drug use. The applicant was upset about her son’s suspension and questioned it with the Circuit Manager.
37. There was also in incident at the end of February/March 2021where Ms. van Rhyn accused him of not doing his work to get her mother’s foster child admitted to a special needs school.
38. About a week after this incident the applicant accused him of touching her buttocks. He was surprised by the allegation and told her that he does not have any idea what she is talking about. The applicant asked him to see Mr. Arendse and left his office.
39. When the applicant returned with Mr. Arendse, she made the same allegation. He remained silent because he did not want to incriminate himself. He also decided not to respond as people frequently enters his office. He requested Mr. Arendse to leave his office so that he can speak to Ms. van Rhyn in private as he does not want to discuss the matter in front of Mr. Arendse who is his subordinate. The applicant denied that he offered Ms. van Rhyn R3000.00.
40. In their private meeting he asked Ms. van Rhyn why she is making the allegations. She indicated that she wanted to consult a doctor. In as far as the R300.00 that he gave to her is concerned the applicant explained that he has often in the past gave Ms. van Rhyn money because she was struggling financially. They were good friends and when she said that she wanted to consult a doctor, he concluded that she wanted money. The next day she handed in a medical certificate showing that she visited a doctor.
41. About the respondent’s sexual harassment policy, the applicant testified that the respondent has not complied with the policy and that he never received the written complaint of Ms. van Rhyn or was asked to respond to the allegations.
42. Under cross-examination it was put to the applicant that the incident of Ms. van Rhyn’s son suspension was in 2019 and that is improbable that Ms. van Rhyn would wait months before acting on it. The applicant maintained that Ms. van Rhyn had motive and testified that she and her mother wanted to get back at him because of her mother’s foster child which was not transferred to a special needs school.
43. The applicant reiterated that he was silent during the meeting with Ms. van Rhyn and Mr. Arendse because he did not want to incriminate himself and said things that could be used against him later. He also did not want to discuss it in front of Mr. Arendse.
Closing arguments
44. The comprehensive heads of arguments of the parties are on record and I do not find it necessary to repeat it here in full. If I do not mention a particular argument it does not imply that it was not considered.
45. In short, Mr. Vorster argued that Ms. van Rhyn had no motive to fabricate the allegations against the applicant. The applicant is guilty of serious allegations; was dishonest during the arbitration by maintaining his innocence and in spite of the previous warning continued with his unethical conduct. The employment relationship is broken and applicant’s application ought to be dismissed.
46. Adv. Rodriques argued that the applicant’s version that he did not touch Ms. van Rhyn buttocks is more probable. It cannot be dispelled that Ms. van Rhyn had motive to lie because of the treatment of her son and the argument she had with the applicant about her mother’s foster child. Ms. van Rhyn’s version that the applicant offered her R3000.00 is questionable and untrue. The applicant version as to why he kept quite in the meeting with Mr Arendse and Ms. van Rhyn is plausible. It was only after the sexual harassment workshop that the applicant conveniently realised that she was sexually harassed. The respondent did not investigate the allegations in terms of its own sexual harassment policy. The applicant is not guilty of the allegation and he ought to be reinstated.
47. Even if it is found that the applicant did touch Ms. Van Rhyn’s buttocks, the sanction of dismissal was too harsh. His conduct cannot be regarded as sexual harassment as Ms. van Rhyn did not indicate that it was unwelcome and she approached the applicant only to seek an apology. There is no evidence that her dignity was violated. The applicant has 34 years of service and the respondent suffered no prejudicial consequences. If the matter was handled in terms of the respondent’s sexual harassment policy it would most likely have been resolved in an informal process.
ANALYSES OF EVIDENCE AND ARGUMENTS
48. Section 192 of the LRA provides that the employee must establish the existence of a dismissal and if that has been established the employer bears the onus to prove on a balance of probabilities that the dismissal is fair. It is common cause that the respondent dismissed the applicant.
49. In deciding the substantive fairness of the applicant’s dismissal, I must consider Schedule 8, item 7 of the Code of Good Practice on Dismissal. In this regard the Code states that an arbitrator must consider:
“Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to the workplace; and if a rule or standard was contravened, whether or not
• the rule was a valid or reasonable rule or standard
• the employee was aware, or could reasonably be expected to have been aware, of the rule or standard
• the rule or standard has been consistently applied by the employer and
• dismissal was an appropriate sanction for the contravention of the rule or standard”
50. The applicant’s case is that he has not contravened a workplace rule and did not grab or touch Ms. van Rhyn’s buttocks.
51. When an employee denies the allegation(s) against him of her, the onus is on the employer to prove the allegation on a balance of probability. In WESUSA & Others vs Jacobz 2000 8 BLLR 977 (LC), the Court remarked that “the onus will be discharged if the respondent can show credible evidence that its version is the more probable and acceptable version. The credibility and the improbability of what they say should not be regarded as a separate enquiry to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondents version, an investigation where the questions of demeanour and impression are measured against the content of a witness’s evidence, where the importance of any discrepancies and contradiction is assessed and where a particular story is tested against the facts which cannot be disputed and against the inherent probabilities, so that a the end of the day one can say with conviction that one version is false and be rejected with safety”. The Respondent thus carries the responsibility to ensure that it present sufficient evidence during this de novo arbitration proceedings to prove the allegations and fairness of the dismissal. The onus will not be discharged by raising mere suspicions of misconduct.
52. Two conflicting versions of what has transpired in the applicant’s office on 19 February 2020 was presented during this arbitration. The piece of the puzzle to untangle here is whether or not the applicant, on the balance of probabilities, did indeed grab or touched Ms. van Rhyn’s buttocks. In Department of Health KZN v PSA and others (DA 4/15) (2018) 39 ILJ 1719 (LAC) (handed down on 20 March 2018) the Commissioner was also faced with two conflicting versions. The Court held that the determination of such disputes needs an assessment of the credibility of evidence and the decision arrived at on a balance of probabilities. Where the common cause facts and probabilities cast doubt on the employees’ version, the version of employer should be accepted.
53. It is common cause that Ms. van Rhyn visited the applicant in his office at Elswood Primary School on 19 February 2020. It is also common cause that the applicant and Ms. van Rhyn engaged in a hug. According to Ms. van Rhyn, the applicant asked her for a hug because they have not seen each other for a while. According to the applicant he offered Ms. van Rhyn a hug because he saw that she was upset. Whatever the applicant’s motivation was, the fact is that he was the one who has initiated the hug.
54. The applicant version is that Ms. van Rhyn is making the false allegation because 1) she was upset with him about the fact that her son was suspended without her knowing about it and 2) because of the argument they had about her mother’s foster child transfer to a special needs school.
55. If Ms. van Rhyn’s motivation to fabricate the allegation must be found in her child’s suspended in 2019, it must also be found that she decided to wait months before seeking retribution. This notion is improbable.
56. It is also improbable that Ms. van Rhyn would go to such lengths as to make up the allegation because of the issue of her mother’s foster child transfer to a special needs school. If she wanted retribution or revenge or was seeking some form of distorted justice then the natural course of action would be to directly approach Mr. Arendse or Mr. Mahona with the allegation and not to first confront the applicant alone in his office. Moreover, the allegation would not have resolved the issue of her mother’s foster child being transferred.
57. If the applicant was aware that their relationship was not on a good footing because of her child’s suspension, why would he often give Ms. van Rhyn money, as he himself testified? And why would he hug a person who is not on good footing with him?
58. I find the contention that Ms. Van Rhyn had motive to fabricate the allegation improbable.
59. The applicant’s explanation why he remained silent when Ms. van Rhyn returned to his office to again voiced the allegation, this time in the presence of Mr. Arendse is problematic. The applicant first testified he remained silent because he did not want to incriminate himself. But when the applicant was asked if there was another reason for his silence, he paused for significant period before answering, and then offered a 2nd explanation that it was because people frequently enter his office. If the applicant remained silent because people frequently enter his office then why would he ask Mr. Arendse to leave his office and then be comfortable to discuss the allegation with Ms. van Rhyn alone in the same office? This 2nd explanation does not make sense. The applicant 3rd explanation as to why he kept silent is because he was uncomfortable to discuss the matter in front of Mr. Arendse, who is his 2nd in charge. And yet, the applicant told an admin clerk, Mr Kolkota, after the meeting that Ms. van Rhyn alleges that he touched her buttocks. Why disclose it to a junior person at the school but not wanting to discuss it in the presence of Mr. Arendse?
60. It is evident that Mr. Arendse also had the applicant’s interest at heart during the meeting. He told the applicant in Ms. van Rhyn’s presence that the allegation is serious, asked Ms. van Rhyn whether they must attempt to find a solution or whether she will lay a complaint and asked the applicant whether he would like to attend a wellness programme. In this atmosphere, the applicant could have denied the allegation in front of a witness, who was also his trusted colleague. Surely the applicant had missed a golden opportunity to deny the allegation in front of Mr. Arendse, that is off course, if the allegations was untrue. Except for the explanation that he did not want to incriminate himself, I find the applicant’s other explanations for keeping silent and not denying the allegations in front of Mr. Arendse improbable.
61. Instead, the applicant’s response (as per Mr. Arendse’s testimony which I have no reason to reject) was to say that he is a sorry; that he will do everything to make it right; and that Mr. Arendse should leave so that he can speak to the applicant alone. It is improbable that the applicant would have said that he is sorry and that he will do everything to make it right if the allegation was false. It is more probable that there was truth in the allegation and therefore the applicant said that he is sorry and wanted to speak to the applicant alone.
62. Ms. van Rhyn’s version is that the applicant offered her R3000.00 when they were alone. The applicant denies that he offered her R3000.00. Ms. van Rhyn testified that when the applicant offered the money he said that there were previous complaints against him at the Circuit Office and that he cannot afford to have another compliant lodged against him. Her evidence that the applicant disclosed this to her was uncontested. That Ms. van Rhyn was upset when she left his office after their private conversation is uncontested. Mr. Arendse corroborated her evidence that she went to him, burst out in tears and told him about the R3000.00 that the applicant has offered. The probabilities favour an inference that the applicant indeed offered Ms. van Rhyn R3000.00. This is not the conduct of an innocent man. It is more the conduct of a man that knows that if another woman complains at the District Office about him that there will be dire consequences and wants to prevent that at all cost. This probably also explains why the applicant would give his accuser R300.00 to visit a doctor. The improbabilities in the applicant’s version goes to the heart of his credibility as a witness.
63. I have no reason to question the credibility of Messrs. Arendse, Kolkota and Mahona. Ms. van Rhyn may have expressed herself in an uncultivated manner during her testimony but she was consistent, never wavered from her version and appeared still to be upset about the applicant’s conduct. Her explanation as to why she did not immediately report the incident is not strange and is probable. She also did not seek revenge but went to the applicant and confronted him alone in his office. Then instead of apologising, the applicant replied that he thought that he “could make her”. I have no reason to doubt her credibility.
64. Having considered all the evidence, I find Ms. van Rhyn’s version that the applicant pressed her buttocks during their hug the more probable version.
65. Section 18(1)(q) of the Employment of Educators Act, no. 76 of 1998 provides that misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she, while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner. The applicant did not dispute that he is aware of the rule and standard in the workplace. He further did not dispute that the rule was consistently applied. The applicant also did not dispute that to touch or grab the buttocks of a person without consent is improper, disgraceful and unacceptable (especially in the context of a Principal at a school doing this to a SGB member on school premises). I find that the applicant’s conduct has contravened section 18(1)(q).
66. In deciding the substantive fairness of the applicant’s dismissal, I must take into account the principals laid down by the Constitutional Court in Sidumo and Congress of South African Trade Unions v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC). The Constitutional Court held that fairness requires a balancing of the interest of the employer and employee parties. An arbitrator must consider the totality of circumstances in determining the fairness of the sanction. In terms of the Sidumo judgment, the commissioner must inter alia:
• take into account the importance of the rule that was breached, the reason why the employer imposed the sanction of dismissal and the basis of the employee’s challenge to the dismissal
• consider the harm caused by the employee’s conduct and whether the misconduct is serious and makes a continued employment relationship intolerable
• consider whether additional training and instruction may result in the employee not repeating the misconduct
• consider the effect of dismissal on the employee
• consider the employee’s service record
67. The applicant was the Principal of a primary school and I must take into account that the Constitutional Court in Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 CC, held that section 28 of the Constitution impresses an obligation on all those who make decisions concerning children to ensure that the best interest of the children enjoy paramount importance. Courts and administrative authorities are constitutionally bound to give consideration to the effect their decision will have on children’s lives.
68. The conduct of the applicant in his capacity as a Principal towards Ms. Van Rhyn during the hug that he initiated was not only inappropriate and unacceptable. Pressing her buttocks was disgraceful and uninvited. Instead of apologising to Ms. Van Rhyn, the applicant told Ms. Van Rhyn that he thought that he “could make her” and later he attempted to pay for her silence. This is not the example that a Principal must set at a school.
69. The applicant has been previously warned about his conduct towards woman. This warning unfortunately did not have the desired corrective effect.
70. The applicant has maintained his innocence during this arbitration and has showed no remorse. In De Beers Consolidated Mines (Ltd) v CCMA & Others (2000) 21 ILJ 1051 (LAC) the court observed that: “Acknowledgement of wrong-doing is the first step towards rehabilitation”. This first step was not taken by the applicant.
71. I have taken into account the effect that the dismissal has on the applicant as well as his years of service. But in Member of the Executive Council for Finance, KwaZulu-Natal & another v Dorkin NO & another [2008] 6 BLLR 540 (LAC) the court held the no mitigating factors could possibly be raised in favour of an employee who had committed what is viewed as very serious misconduct.
72. I am persuaded that the applicant has caused irreparable damage to the trust relationship
73. The applicant party argued that the respondent has not followed its own sexual harassment policy. It is notable that the applicant was not specifically charged with sexual harassment but instead with improper, disgraceful and unacceptable conduct. In as far as the procedural fairness of the dismissal is concerned, the Labour Court held in Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (2006) 27 ILJ 1644 (LC) that at the conception of procedural fairness incorporated into the LRA is one that requires an investigation into any alleged misconduct by the employer, an opportunity by any employee against whom any allegation of misconduct is made, to respond after a reasonable period with the assistance of a representative, a decision by the employer and notice of that decision. The Court held that this approach represents a significant and fundamental departure from what might be termed the 'criminal justice' model. The Court said that true justice for workers lies in a right to an expeditious and independent review of the employer’s decision to dismiss, with reinstatement as the primary remedy when the substance of employer decisions is found wanting.
74. It is clear that in deciding whether a procedure was fair, commissioners should not adopt an overly technical approach and should bear in mind that the purpose of the recommended procedure is to provide an opportunity for dialogue and reflection regarding whether a fair reason for dismissal or some other sanction exists.
75. The documentary evidence shows that the applicant was notified of the allegations against him; was informed of his rights; and has presented his case during the disciplinary enquiry. The applicant was informed of the reasons for his dismissal was afforded an appeal. I find the dismissal procedurally fair.
AWARD
I find that the dismissal of the applicant was fair. The application is dismissed.
ELRC Panellist: Jacques Buitendag
Text
ELRC 302 -20 /21 NW
Text