Employer to reinstate and pay employee after dismissal was procedurally and substantively unfair

July 1st, 2023

Sibanyoni v Seriti Power [2023] 6 BALR 701 (CCMA)

The Commission for Conciliation, Mediation and Arbitration (CCMA) was required to determine whether the respondent acted fairly by conducting a second disciplinary hearing, and whether the disciplinary hearing amounted to double jeopardy. The CCMA had to decide whether the dismissal of Themba Sibanyoni (the applicant) was substantively fair and depending on the Commissioner’s findings to also determine the appropriate relief. This was after the applicant was charged with sexually harassing a woman in a park outside working hours and was found guilty after a disciplinary hearing. Seriti Power (the respondent) formulated new charges of assault and bullying, convened a second disciplinary hearing, and dismissed the applicant. The applicant claimed that the second hearing contravened the double jeopardy rule and that he had merely tried to defend himself when assaulted with pepper spray and bottles by the alleged victim.

The applicant was employed since 1 May 2009 and was working as a Process Supervisor in a coal mining industry. He was paid a salary of R 40 000 per month and was dismissed on 2 September 2022, after a disciplinary hearing. He was charged and dismissed for the following:

Acts of violence: It was alleged that on or about 20 December 2021 at or near Klipfontein Dam in Emalahleni, he engaged in acts of violence against his subordinate, Thandeka Kekae. It is alleged that he kicked, strangled, and punched Ms Kekae on the body and face.

His conduct as described above was contrary to his duty to act in the best interest of the company and was contrary to clause 8 of the Procedure for Handling Complaints of Sexual Harassment, Harassment, Violence and Bullying. It was a serious act of misconduct, which was not expected from an employee of the company, particularly and employee at his level status.

The applicant was charged with sexual harassment at the first hearing. Based on videotaped evidence, the presiding officer had found that the woman attacked the applicant with pepper spray and bottles. The respondent during the disciplinary hearing relied on documentary evidence and called five witnesses. One of the witnesses who is employed as a security guard at Klipfontein Dam, said he witnessed the assault of the applicant by Ms Kekae. He added that applicant did not kick her. That he did not retaliate when he was attacked. Another witness, Tom Mashifane, testified that he was just an ordinary civilian visiting the park on the day in question. He was asked by bystanders to assist as Ms Kekae was assaulting the applicant. When he spoke to her to calm down, she took pepper spray and sprayed the applicant. The applicant was blinded and fell, and Mr Mashifane wrestled pepper spray from her.

The commissioner was told that the applicant did not act violently and did not push Ms Kekae. Mr Mashifane said he witnessed the event, and the applicant was trying to defend himself.

The applicant challenged the procedural and substantive fairness of his dismissal and sought reinstatement as relief. The applicant raised two preliminary points for the CCMA to consider. The applicant alleged that the issue occurred in his private time, away from the operations of the respondents and had no impact on the business of the respondent. The applicant also alleged that the same issue was dealt with and concluded at a previous hearing where he was exonerated. The second hearing amounted to double jeopardy.

The applicant claimed double jeopardy in that the issue of acts of violence was dealt with substantively at the sexual harassment hearing and he was exonerated by the chairperson of that hearing. Commissioner Baloyi said that he would investigate the double jeopardy claims first. However, in order for him to make a finding he would need to determine whether the acts of violence charge was substantively dealt with in the sexual harassment case. And if so, whether the two hearings dealt substantively with the same matter, same parties, and the same merits, whether the respondent was justified to do so and whether the outcome amounted to double jeopardy.

Commissioner Baloyi said that it was his view that the issue of violence (acts of violence) in the video were dealt with at the sexual harassment dispute. He added that the description of the charge alone did not mean that evidence was not led on violence in the video. He pointed out that the issue was dealt with substantively and the chairperson made a finding. His finding was not challenged nor overruled by the respondent. Commissioner Baloyi said that despite the charge at the second hearing being identified as ‘acts of violence’, the merits of the case are the same as were led at the sexual harassment dispute in terms of the video. The commissioner pointed out that the charge under the ‘acts of violence’ clearly refers to violence in contradiction with the procedure on ‘handling complaints of sexual harassment, harassment, violence and bullying’.

Commissioner Baloyi said that without analysing the substantive fairness of the dispute, it was clear that the respondent had relied on the same facts as were presented at the sexual harassment case. Commissioner Baloyi said the applicant was dismissed solely on the same video presented at the sexual harassment disciplinary hearing with no new evidence presented. Commissioner Baloyi concluded that the two hearings dealt substantively with the same matter, same parties, and the same merits. He pointed out that the applicant was not found guilty of any ‘acts of violence’, that the respondent was not justified in convening the second hearing and this amounted to double jeopardy.

Commissioner Baloyi re-emphasised that the applicant was dismissed for a charge that emanates from the respondent’s policy on handling complaints of sexual harassment, harassment, violence, and bullying. The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (the Code of Good Practice) at para 2.3, which was gazetted in GN R1890 GG46056/18-3-2022, states that the Code of Good Practice finds application in a situation where the employee is working, or which is related to work.

Commissioner Baloyi said that it was established from the applicant’s first hearing that he has not committed any violation against the code, nor was he found guilty of committing any violence. He added that it follows that there is no impact or reputational damage on the respondent. The applicant’s suitability to work was given impetus by findings at his sexual harassment case. Commissioner Baloyi pointed out that the incident on the video of 20 December 2021 happened outside the application in terms of the Code of Good Practice, as well as the respondents’ own disciplinary code. ‘Acts of violence’ (violence) under the respondent’s sexual harassment policy was found not to have occurred by the chairperson of the applicant’s first disciplinary hearing. Commissioner Baloyi said that the applicant’s two preliminary points succeed and his inquiry on the disputes stopped there. He added that the applicant’s dismissal was procedurally and substantively unfair.

In deciding the remedy, Commissioner Baloyi said he considered the arbitration guidelines and s 193(1)(a) of the Labour Relations Act 66 of 1995. He added that he considered the severity of unfairness of the applicant’s dismissal. The commissioner ordered reinstatement and six months back pay was just and equitable, calculated as follows: R 40 000 x 6 months = R 240 000.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2023 (July) DR 27.

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