Ekurhuleni Metropolitan Municipality v South African Local Government Bargaining Council

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Davis JA and Savage AJA and Kubushi AJA
• Judgment Date: 27 January 2022
• Docket Number: JA17/2021
• Hearing Date: 09 November 2021
• Court: Labour Appeal Court
• Citation: 2022 JDR 0330 (LAC)

Savage AJA:

Introduction

[1]

It has previously been stated by our courts that our constitutional democracy is founded on the explicit values of human dignity and the achievement of equality in a non-racial, non-sexist society which operates under the rule of law. [1] Central to this vision is the hope that our Constitution will have us re-imagine power relations in our society so as to achieve substantive equality, more so for those who have suffered or continue to suffer unfair discrimination. [2]

[2]

Sexual harassment is, at its core, concerned with the exercise of power and reflects the power relations that exist both in society generally and specifically within a particular workplace. [3] In the workplace, such harassment creates an offensive and very often intimidating work environment that undermines the dignity, privacy and integrity of the victim and creates a barrier to substantive workplace equality. [4] Where such harassment occurs at the hands of public officials who are enjoined to treat members of the public with respect and dignity, [5] it offends not only against the constitutionally entrenched right to dignity, privacy and integrity but against the basic values and principles that govern the public administration. [6] The result is that public services are accessed by members of the public in an environment which is hostile, intimidating and offensive.

[3]

Both the 1998 Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace (the 1998 Code), issued by National and Economic Development and Labour Council (NEDLAC) under section 203(1) of the Labour Relations Act 66 of 1995 ('the LRA'), and the subsequent 2005 Amended Code on the Handling of Sexual Harassment Cases in the Workplace (the Amended Code), issued by the Minister of Labour in terms of s54(1)(b) of the Employment

2022 JDR 0330 p3

Savage AJA

Equity Act 55 of 1998 [7] provide that victims of sexual harassment may include not only employees, but also clients, suppliers, contractors and others having dealings with a business. [8] It follows that the 1998 and Amended Code apply to members of the public who access public services.

[4]

This appeal, with the leave of the Labour Court, is against the judgment and orders of that Court (per Mathebula AJ) delivered on 1 June 2020 in terms of which the review application brought by the appellant, the Ekurhuleni Metropolitan Municipality, was dismissed and the cross-review of the third respondent, Mr Justinus Mabetoa, was granted, with the late filing of such cross- review condoned. The result was that the arbitration award issued by the first respondent, the South African Local Government Bargaining Council ('the SALGBC'), was set aside on review and substituted with a finding that the dismissal of the third respondent was substantively unfair. It was consequently ordered that the third respondent be reinstated into his employment with the appellant, with the appellant ordered to pay the third respondent's costs.

Background and litigation history:

[5]

This appeal concerns two incidents of sexual harassment reported to the appellant by the complainant, a member of the public, who had accessed public services at the appellant's Edenvale vehicle licensing centre. The complainant was employed at the time as a retentions clerk by Standard Bank. She attended at the licensing centre on 23 June 2015 to book a vehicle learner's licence test and returned on 31 August 2015 to take the test. On 31 August 2015, she reported to a supervisor employed by the appellant that the third respondent, an employee of the appellant, had sexually harassed her on both 23 June 2015 and again on 31 August 2015 at the licensing centre.

2022 JDR 0330 p4

Savage AJA

[6]

The complainant recorded in a statement signed on 31 August 2015 that on 23 June 2015 when she booked the learner's licence test the third respondent was the cashier who took her money and that he -

'…forced to take my number on my details and I told him not to call. He made sexual remarks that I look like I taste nice in bed. I decided to ignore this event.'

[7]

The third respondent did not call her. When she returned to the licensing centre on 31 August 2015 to take her learner's licence test, the third respondent was the official who signed the certificate and took her fingerprints. In her statement, she recorded that:

'He [the third respondent] made sexual remarks again, saying I look like I am nice in bed. He also looked at my address and said he will keep it in mind and come to my place. When I had to put my fingerprint on the learner's certificate he rubbed my hand in a very uncomfortable way. I took my certificate and went to reception to ask where do I go to lay a grievance and the lady at the door pushed me outside to tell me to let it go. I immediately went to the supervisor office…The supervisor called [the third respondent] and I confronted him and he denied all accusations. I then advised the supervisor that since he doesn't even apologise I would to lay (sic) a formal complaint. That is when he said he will apologise and I advised that the apology was to (sic) late and I would take matters further…'.

[8]

At an internal disciplinary hearing, the third respondent was found to have committed two counts of sexual harassment. Although he denied the allegations the chairperson found it "difficult to disregard" the testimonies of the appellant's three witnesses. It was found that the third respondent had failed to maintain the professional client relationship, with two separate incidents of sexual harassment having taken place which warranted his dismissal. The third respondent was consequently dismissed from his employment with the appellant with effect from 31 March 2016.

2022 JDR 0330 p5

Savage AJA

Arbitration award:

[9]

Aggrieved with his dismissal, the third respondent referred an unfair dismissal dispute to the SALGBC. The complainant testified at the arbitration hearing that when she paid for her learner's licence test on 23 June 2015, the third respondent looked at her cellphone number and said "that he would write it down so he could phone me". She told him not to phone her. He then "made sexual remarks" to her "that I look nice in bed, or it is nice in bed". She stated that she was shocked, did not know what to say or do and left the licensing centre without reporting the matter.

[10]

The complainant testified that on 31 August 2015 she returned to the licensing centre to take her learner's licence test. After passing the test, the third respondent took her fingerprints and signed her learner's licence certificate. When taking her fingerprints "he rubbed my hand in the way that was not comfortable, was not in the right manner" and caressed her hand. She testified that when he signed her certificate, the third respondent said: "I look like I am nice in bed". He looked at her address and said he will keep it in mind and come to her place. After this the complainant said she "just didn't feel safe", felt that the third respondent had "removed all dignity I had" and that she felt "scared at the same time". She could not understand why the third respondent, who was an older man, would talk to her in the way he did and without respect and it left her with a bad impression of the appellant's licensing department. After the incidents, she underwent counselling and found it hard to go to a driving school as most were run by older men who she was scared to be alone with.

[11]

The substance of the complainant's evidence remained unchallenged at arbitration. While issue was taken with the lack of corroboration for her version, in cross-examination it was not put to the complainant that the third respondent denied that he had sexually harassed her.

[12]

The appellant's regional manager for the licensing and transport division stated that all officials are required to treat customers with dignity and respect, that the appellant's reputation was at risk as a result of the third respondent's conduct

2022 JDR 0330 p6

Savage AJA

and that as a result of his conduct the trust relationship between the appellant and the third respondent had broken down irretrievably.

[13]

In his evidence at arbitration, the third respondent denied that he had sexually harassed the complainant and said that he "can't apologise for something I never done (sic)". He took issue with the fact that while there was a camera behind him when he took the complainant's fingerprints, no recording was provided to him. In cross-examination it was put to him that -

'…The complainant says that on the 23rd of June you said to her something to the effect that, you will taste nice or you look nice in bed. Did you say that?'

To this he replied:

'Umm no I said that.'

[14]

When asked thereafter:

'On 31 August did you say that to her?'

The third respondent replied:

'Umm no I said that'.

[15]

The arbitrator accepted the complainant's explanation for not reporting the matter after the first incident on the basis that she was "in shock" and "wanted to get out of...