Dispute Resolution Services

Arbitration Awards For Sexual Harassment Cases (2009/2010)

DISPUTE RESOLUTION SERVICES:

Arbitration Awards for Sexual Harassment Cases (2009/2010)

2

Arbitration Awards For Sexual Harassment Cases (2009/2010)

2

Arbitration Awards For Sexual Harassment Cases (2009/2010)

Sexual Harassment cases referred for the Financial Year 2009-2010

2

Arbitration Awards For Sexual Harassment Cases (2009/2010)

Table of Contents

1. KwaZulu-Natal ………………………………….……………………….…… pg. 1

1.1 Govindsamy Kanniah vs DBE-KZN PSES 49-09/10 ……………. pg. 1

1.2 Mxolisi Seraphicus Zwezwe vs DBE-KZN PSES 146-09/10 ..…..… pg. 15

1.3 NATU obo Mabaso vs DBE-KZN PSES 198-09/10 ..…...... pg. 30

1.4 SADTU obo Zulu D.J vs DBE-KZN PSES 513-09/10 ..…...... pg. 33

2. Eastern Cape ………………………………….………...…………………… pg. 44

2.1 Mxolisi Bobo vs DBE-EC PSES 188-09/10 ..…...... pg. 44

3. Free State ……………………………...……….………...……………….…. pg. 66

3.1 SADTU obo Twala vs DBE-FS PSES 218-09/10 ..…...... pg. 66

3.2 Tladi vs DBE-FS PSES 220-09/10 ……………………...... pg. 80

4. North West ……………………………...……….………...………………… pg. 89

4.1 Seema P.M vs DBE-NW PSES 270-09/10 ..…...... pg. 89

4.2 Lawrence Maphume Chiloane vs DBE-NW PSES 467-09/10 ...... pg. 96

4.3 SADTU obo Kensenogile vs DBE-NW PSES 311-09/10 ...... pg. 109

Sexual Assault Cases 2010/11 for North West ...... pg. 121

5. Western Cape ……………………………...……….…...…………………… pg. 122

5.1 Mzinyati vs DBE-WC PSES 276-09/10 ..…...... pg. 122

6. Mpumalanga ………………..……………...……….…...…………………… pg. 135

6.1 SADTU obo Gololo vs DBE-WC PSES 364-09/10 ..…...... pg. 135

EDUCATION LABOUR RELATIONS COUNCIL 1 | Page

1. KWAZULU-NATAL

1.1 Govindsamy Kanniah vs DBE-KZN PSES 49-09/11

EDUCATION LABOUR RELATIONS COUNCIL 135 | Page

zArbitration Awards For Sexual Harassment Cases (2009/2010)

DETAILS OF HEARING AND REPRESENTATION:

[1]. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the “ELRC”) in terms of Section 191(5)(a) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for arbitration on the 17th, and 18th of May 2010, 8th and 9th of July 2010, and finalized on the 9th and 10th of September 2010. At the conclusion of the process, the Applicant requested time to prepare written heads of argument, since he was not represented. The Respondent preferred to dispose of the closing arguments immediately in the process, but did not raise an objection to the Applicant submitting his heads at a later stage.

[2]. It was accordingly agreed that the parties would be afforded 7 (seven) days to submit written heads of argument. At the time of this award, no heads of argument was received by the Applicant.

[3]. The hearing was held at the Durban Teachers’s Centre, in Durban, Kwa-Zulu Natal. Mr G Kanniah, the Applicant (hereinafter referred to as “Kanniah”), was present and represented himself, whilst Mr SC Chambers, from the Labour Relations Division, represented the Respondent, the Department of Education in Kwa-Zulu Natal.

[4]. On the 17th of May 2010, Mr Kanniah appeared, represented by a legal representative. The Respondent objected in accordance with the Rules of the ELRC regarding the right to representation and following arguments in this regard the following ruling was issued.

[5]. The Applicant relied on the following grounds: One, that, the matter is complex as it resolves around the furtherance of the career of the Applicant. In addition, so it was argued, there are certain aspects with regards to the admissibility of evidence that would require a legal mindset. Two, insofar as representation from a Trade Union is concerned, it was argued that the Applicant approached SADTU, but was informed, due to the fact that they did not represent him in June 2009, in the default arbitration, that they would not be able to represent him during these proceedings. Three, the type of charge, being allegations relating to sexual misconduct against a minor, could have serious repercussions for the applicant and if not afforded the opportunity to be represented, would amount to a miscarriage of justice.

[6]. The Respondent opposed the said application, arguing that the Applicant faced two charges, and although the charges can be regarded as serious, argued that it was not factually complex. The fact that the outcome of this case sprouting from the charges could have a bearing on the Applicant’s career, is hardly an indication whether or not the matter is complex. As for the comparative ability argument, a cure could be to secure the presence of a fellow Employee to represent him or someone from a registered Trade Union.

RULING:

[7]. The application is basically premised on two grounds: One, the complexity of the matter and two, the comparative abilities of the parties. As for the first ground, it being argued that the matter is serious, as the outcome might have great implications and repercussions on the career of the Applicant, and further that a legal mind is necessary to deal with the admissibility of evidence. It is factually incorrect to argue that the matter is complex merely because the implications for the Applicant’s career could be far reaching. The fact that certain repercussions may flow out of this dispute, is irrelevant in the determination of whether to allow legal representation or not, and does not in itself elevate the status of the matter to that of being complex in nature.

[8]. As for the second ground, that of the comparative abilities of the opposing parties, it appears to be common cause that the Applicant is an Educator, and no evidence has been placed before me to suggest that he is legally qualified. However the Rules do make provision for an Applicant to be represented by a fellow Employee or a Trade Union representative. No evidence was adduced to support the argument that the Trade Union (SADTU) indeed refused to represent the Applicant. Despite the afore-mentioned, the question that begs to be answered is what other avenues did the Applicant exhaust in order to secure the presence of any Trade Union or fellow Employee for that matter, and this question remained unanswered.

[9]. Section 138 (1) of the Act prescribes that matters of this nature be disposed of with the minimum of legal formalities. I am not convinced that the matter is complex, yes in all probabilities the outcome of the matter might have serious implications for the career of the Applicant, but certainly that is no indication that the matter is complex or not. The argument that a legal mind is necessary to deal with the admissibility of evidence (documents), also lacks persuasion as that function rests solely with the commissioner, parties may bring the argument to the attention of the Commissioner yes, but even if a legal mind brings the argument to the attention of the Commissioner, the decision rests with the Commissioner whether to admit or not. The intention of the legislature was to make the provisions of the Act as accessible to all as possible, and I would be seen to be failing in my duties, if I did not discharge these duties with the necessary diligence and judicial professionalism.

[10]. With regards to the comparative abilities of the parties, it is common cause that the representative acting on behalf of the Respondent must be more experienced in these matters than the Applicant, having to deal with these matters on a daily basis, however recourse available to the Applicant was to approach a Trade Union for assistance or to seek the presence of a fellow colleague. No evidence was placed before me to suggest that SADTU refused to represent the Applicant, or to show that the Applicant exhausted all avenues at his disposal before bringing this application. The application is therefore denied.

APPLICATION FOR POSTPONEMENT:

[11]. Once the ruling on representation was received, the Applicant brought an application for postponement arguing that the Applicant requires time to secure the presence of someone else to represent him.

[12]. The Respondent did not oppose the application provided the matter proceeded the next day. The Applicant indicated that he would require more time to secure the presence of a representative.

RULING:

[13]. The application was granted since I could not detect any male fides involved in the application. The application appears to be genuine since the Applicant was under the impression that he would be allowed the right to legal representation.

[14]. In accordance with Section 28(2) of the Constitution, every child’s bests interests are of paramount importance in every matter concerning the child. Section 28(3) refers to a child as a person under the age of 18 years.

ISSUE TO BE DECIDED:

[15]. Whether the dismissal of the Applicant was substantively and procedurally fair. In the event that I find in the negative, I must decide upon an appropriate remedy.

INTERLOCOTORY POINT:

[16]. On the 8th of July 2010, Mr Chambers indicated that due to the fact that they received short notice for the date of the arbitration, that they could not secure the presence of one of their witnesses. They were however willing to lead the evidence of two of the witnesses, but requested the matter to stand down for the last to testify at a subsequent hearing date.

[17]. The Applicant, in response, brought a further application for postponement, stating that he could not secure the presence of either a Legal Representative or a Trade Union, and asked for the matter to be postponed.

[18]. Since it appears, from the documents handed to me by the Respondent, that the notice of set down was served late (out of time) on the Respondent, the request of the Respondent was granted. As for the application made by the Applicant, Section 138(1) of the Act, prescribes for matters to be disposed of with the minimum of legal formalities as well as speedily and effectively. The Applicant conceded to receiving sufficient notice for the hearing but argued that there might be someone to represent him who would not be available during the school holidays. Sufficient time was afforded to the Applicant to secure the presence of a represent for that was precisely the reason for the postponement on the 17th of May 2010. It appears that the Applicant made little or no attempt during that period to seek for the assistance of a representative, and even if I were to accept that “Someone” might be able to represent him during the next hearing, no certainty could be given that would indeed be the matter, nor could the identity of this mysterious person be disclosed by the Applicant. It is also not clear what the Applicant had done to inform the ELRC of his predicament.

[19]. On the 9th of September 2010, the Respondent brought a further application for postponement but subsequently changed their application and asked for the matter to stand down for a few hours, since their witness was writing exams.

[20]. The Applicant also brought yet another application for postponement, stating that he is not feeling well. He submitted what appears to be a letter from a Dr Moodley that reads as follows:

“Mr G Kanniah has been treated today (9 September 2010) for acute sinusitis / influenza.”

The Applicant further relied in his application on the fact that he is “depressed”, and argued that the matter was too complex, he would not be able to deal with the matter on his own. A further “letter” was handed up in this regard, from Dr S Khalil Kader that reads as follows:

“This is to confirm that Mr G Kanniah was first treated by me since 10/9/94. And since 5/9/2002 he has seen me regularly to date for Major Depressive Disorder and severe work related stress and anxiety.”

In support of his application, Mr Kanniah further handed up an affidavit deposed to on the 8th of September 2010, that reads as follows:

“I, Mr G Kanniah has been treated by Dr Leila Moodley for acute sinusitis / influenza (as per medical certificate). Furthermore I am also under treatment for major depressive disorder and severe work related stress and anxiety by Dr S Khalil Kader (specialist Psychatrist) as per doctor’s letter. Due to the above, I will not be in a position to present myself at the disciplinary hearing in the ELRC on 9/9/2010 and 10/9/2010.”

The Respondent opposed the said application stating that the matter has been postponed on several occasions in the past for the very same reasons advanced by the Applicant.

[21]. On the 10th of September 2010, Mr Kanniah brought another application for postponement, stating that his witnesses were not available. The application was opposed by the Respondent.

RULING:

[21]. In determining whether to grant a postponement, one must bear in mind what was said in

CAREPHONE (PTY) LTD v MARCUS NO & OTHERS (1998) 19 ILJ 1425 (LAC) where the head note reads as follows:

“In a court of law, the granting of an application for postponement is not a right. It is an indulgence granted by the court in the exercise of a judicial discretion. What is normally required is a reasonable explanation for the need to postpone and the capability of an appropriate costs order to nullify the opposing party's prejudice or potential prejudice. Interference on appeal involving a lower court's exercise of discretion will follow only if it is concluded that the discretion was not judicially exercised. There are at least three reasons why the approach in respect of courts of law is not on a par with arbitration proceedings under the auspices of the CCMA: (1) arbitration proceedings must be structured to deal with the dispute fairly and quickly (s 138(1) of the LRA); (2) the proceedings must be done with a minimum of legal formalities (s 138(1)); and (3) the ability to make costs orders to counter prejudice in good faith postponements is severely restricted (s 138(10)).” (my emphasis)

[22]. The affidavit deposed to by the Applicant does not provide any new information that was not already alluded to in the two letters handed up, presumably from Drss Moodley and Khalil Kader, apart from the fact that the affidavit was dated the 8th of September 2010 and the letter from Dr Moodley only the 9th of September 2010. I find it strange that Mr Kanniah could already know on the 8th of September 2010 that he would be given a letter by Dr Moodley for Sinusitus / Influenca. Further to that the “letters” do not state that Mr Kanniah was incapacitated and that he could not attend the arbitration hearing, it merely stated that he was treated by the respective doctor. As for the argument that he would not be able to dispose of the “complex” matter on his own, Mr Kanniah has been given ample opportunity, in fact the matter was specifically postponement in May 2010 for that very same reason. Four months down the line, the Applicant was still singing the same tune, which I found to be unreasonable. As for the application for postponement due to the unavailability of the witnesses of the Applicant, the Applicant failed to address me on the issue, when he became aware of the fact that his witnesses were not available. On the 9th of September 2010 on my arrival I found a female person standing outside, when I asked her whether she was from the side of the Applicant or Respondent, she answered that she was the witness for the Applicant. I enquired from her whether the Applicant was on his way, she then replied that she did not know since she had not spoken to him recently. From the facts before me it appears as if the Applicant did not diligently pursue this matter, for had he properly consulted with his witnesses, he might have been able to secure a postponement without any costs being incurred by any party. In addition I am not convinced that all the witnesses are relevant or that they would be able to add value.