Department of Health, Western Cape v Twalo and Another [2022] 8 BLLR 741 (LC)In the case of Twalo, the Department of Health in the Western Cape (applicant) brought an application to the Labour Court (LC) in terms of s 158(1)(h) of the Labour Relations Act 66 of 1995 (the LRA). The applicant sought to review and set aside decisions of the second respondent (the presiding officer) who presided over a disciplinary hearing at which Theophilis Twalo (the first respondent) faced five allegations of misconduct involving sexual harassment.
This was after the presiding officer in the matter found Mr Twalo guilty of only one of the five charges and considered an appropriate sanction to be a final written warning plus suspension without pay for two weeks, as she said the victim was not a credible witness. The Department submitted that reviews in terms of s 158 may be brought within six months of a party becoming aware of the presiding officer’s decision, which was on 20 November 2020. After consulting those involved in the disciplinary hearing, the Department sought an opinion of the matter from their Legal Services Department (Legal Services) on 7 December 2020. It received an opinion on 18 December 2020, recommending that it brief counsel.
The LC said the Director: Labour Relations, Mr Roman, did nothing about the matter from 18 December 2020 to 20 January 2021 because – according to the Department – he went on leave from 22 December 2020 to 18 January 2021 and he and the Department were involved in the planning of the COVID-19 vaccine rollout. He handed the Legal Services opinion to an Assistant Director: Labour Relations, Mr Ngame, only on 20 January 2021. Mr Ngame again consulted with the various people involved in the hearing (even though, according to the Department, this was already done during November and December 2020) – only to do no more than to recommend on 15 February 2021 that the advice of Legal Services be followed and to brief counsel for a further opinion.
The LC added that a further submission was made on 19 February 2021 ‘in terms of the [Department’s] protocol’ to the Chief-Director: People Management who met with Labour Relations on 25 February 2021. That it was only then that ‘permission was given,’ the LC said it was unclear by who and to whom to instruct the State Attorney to brief counsel. The LC pointed out that the State Attorney briefed counsel on 3 March 2021, but it was only then that digital recordings were obtained for transcription. Counsel provided an opinion on 18 March 2021 and the initial papers in this matter were served on the other parties on 1 April 2021.
The LC said the explanation was poor and appears contrived in several respects. The LC said even though the Department had, during December 2020, discussed the matter in those disciplinary proceedings, the Department claimed that Mr Ngame had to do so again, after Mr Roman brought the matter to his attention on 20 January 2021. The LC said that there was an unreasonable delay and, even though it was not convinced that the explanation for the delay was sound and acceptable, the application had good prospects of success and, therefore, the court should condone the delay in launching the review application.
The court looked at the review in terms of s 158(1)(h) of the LRA. The court said that the parties agreed that in its capacity as an employer, the state may review its decisions and acts in terms of s 158(1) of the LRA on ‘such grounds as are permissible in law.’ The LC, however, pointed out that Mr Bosch argued that while Hendricks v Overstrand Municipality and Another [2014] 12 BLLR 1170 (LAC) held that the state may rely on the Promotion of Administrative Justice Act 3 of 2000 (PAJA), the principle of legality, and the common law to review its decisions. The Constitutional Court in State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd 2018 (2) SA 23 (CC) ruled that PAJA was not available to organs of state seeking to review its own decisions.
The LC said that Mr Bosch submitted that the Department is limited to the principle of legality and common law, and not PAJA, for this review. The LC pointed out that limited to the principle of legality and review in terms of the common law means that the test for the review is not one of reasonableness but confined to whether the decision sought to be reviewed was lawful and rational. The LC added that while the concepts of rationality and reasonableness overlap and rationality is an element of reasonableness, Mr Bosch submitted, the latter is of a higher standard and requires more intense scrutiny of administrative decisions. Thus, applying the principle of legality and the common law, rationality and not reasonableness should be basis of the review.
The LC added that Mr Bosch further submitted that if the court were not to accept that the test review in this matter is confined to the principle of legality and common law and thus the test of rationality rather than reasonableness, the test for reasonableness still requires a holistic survey of evidence to establish whether the decision-maker made a decision that a reasonable decision-maker could not make rather than, as the Department seeks, scrutinising and criticising the presiding officer’s decision in piecemeal manner.
The LC pointed out that, even if Gijima does apply and reviews in terms of s 158(1)(h) are confined to the principles of legality and common law grounds of review, if administrative decision-maker fails to apply their mind to relevant material before them so that it affects the rationality of the decision, the decision stands to be reviewed as irrational. The LC said that in Craig Bosch and Anton Myburgh Reviews in the Labour Courts (Durban: LexisNexis 2016), the authors state that attacks on the rationality of a decision, ‘reviews based on the principle of legality take us back to the [Carephone (Pty) Ltd v Marcus NO and Others [1998] 11 BLLR 1093 (LAC)] test’. Mr Bosch referred to the very useful test formulated in Carephone, namely ‘is there a rational objective basis justifying the connection made by the administrative decision-maker between the material properly available to him [or her] and the conclusion he or she eventually arrived at?’
The LC noted that the presiding officer acquitted Mr Twalo of four charges, accusation one, three, four and five. The second allegations were that Mr Twalo had made verbal remarks of sexual nature to the victim.
Charge 2 stated that ‘on or about 25 October 2019, you sexually harassed [the victim] in your office by making the following unwelcoming verbal remarks of sexual nature, “It seems it’s not only your upper back, it’s your lower back too. This means you are unable to perform in the bedroom and it is only kissing you can do”.’ The LC reproduced, the presiding officer’s findings in full, and on charge two the finding by the presiding officer read:
‘The guilty finding on charge 2 – You, Mr Twalo in your position as a senior administrative clerk [Human Resources (HR)], had full access to [the victim’s] medical reports and the comment made about her abilities to perform with reference to her lower back problem, is a clear indication that you were fully aware of her condition and that you did make the comment to [the victim]. It is also very clear in the Departmental Sexual Harassment Policy in section 7.2.1 in determining whether conduct constitutes sexual harassment the following must be taken into account: 7.1.2.2 “whether the sexual conduct was unwelcome” which in this case it was’.
The LC said that the presiding officer’s reasons for the sanction she considered appropriate are more detailed and some remarks are worth considering. The LC pointed out that for example:
‘No evidence was given at the hearing, and this was a matter of the complaints word against you, as per the findings the complaint was found not to be a credible witness on the other charges as she omitted other stuff when she was interviewed by the [sexual harassment officer]. You have maintained throughout [that] you never made such derogatory remarks to the complainant.’
The LC said that presiding officers of disciplinary hearings are often laypeople and, when compared to Commission for Conciliation, Mediation and Arbitration commissioners, seldom legally trained and with less experience of adjudicating disputes. The LC added that those presenting evidence are also often laypeople. Thus, the decisions of presiding officers in disciplinary hearings must be assessed in that light. The LC said that still bearing these differences in mind, the factors that apply to the requirements that commissioners must ‘issue an award with brief reasons’, are useful in relation to the presiding officers at disciplinary hearings.
The LC pointed out that the Disciplinary Code and Procedures for the Public Service (the Disciplinary Code) provides that ‘if the chair decides the employee has committed misconduct, the chair must inform the employee of the finding and the reasons for it’. The Constitution provides the right to anyone whose rights have been adversely affected by administrative action to give written reasons and PAJA creates a rebuttable presumption that administrative action was taken without good reason when an administrator failed to furnish adequate reasons when called on to do so.
The LC added that it is not necessarily reviewable if a commissioner or presiding officer fails to give reasons and especially if the decision follows findings already made in the award or ruling or are self-explanatory. On the other hand, decisions lacking reasons so that the rationale cannot be determined from other findings or is not self-explanatory, stand to be reviewed. The LC said although brief reasons will suffice, the failure to deal with each component of the dispute, it is important facets of the dispute, and factors of great significance or critical to the dispute, may give rise to the interference that a decision-maker failed to apply his or her mind to these factors and, if the failure caused the unsuccessful party to lose, the decision could be prima facie unreasonable.
The LC said that Mr Bosch correctly pointed out that the distinction between review and appeal must be maintained and as mentioned above, that challenging the presiding officer’s findings decision in a piecemeal manner blurs that distinction. The LC added that its brevity aside, the presiding officer’s findings are lacking in several respects. In respects of all the charges for which she acquitted the employee of guilt, she reasoned that, among other things the victim’s testimony differed from her written complaint and her interview with the sexual harassment officer (regarding the third, fourth and fifth allegations). The LC pointed out that, yet the victim’s written complaint was not before the presiding officer’s reference to the ‘written complaint’ was erroneous. Not only does the presiding officer refer to the ‘written complaint’ twice, but Mr Twalo also seems to rely on it being distinct by, in relation to the first allegations, saying that the victim had given three versions regarding the alleged kiss.
The LC added that relying substantially on different versions as part of her reasoning for findings in favour of Mr Twalo, the presiding officer did not mention the nature of these differences. The LC said that by failing to canvass the different version, she did not give any insight into the nature and extent the differences and how and why these differences resulted in her concluding in favour of Mr Twalo. The LC said that there were serious irregularities that showed the presiding officer’s failure to apply her mind to the evidence before her or to have misconstrued the inquiry she was meant to have engaged.
The LC pointed out that sexual harassment hearings present various difficulties. Among these is the difficulty of weighing mutually exclusive versions – often presented only by the person who allegedly experienced sexual harassment and the alleged perpetrator. The LC added that sexual harassment cases also present factors, such as the severe distress, anxiety, embarrassment, shame, and stigma to persons who experience harassment and to alleged perpetrators. The LC said the presiding officer appears not to reflect appreciation for these factors.
The LC pointed out that most presiding officer’s reasoning is respect of this charges deals with clauses from the Departmental Sexual Harassment Policy. The LC said that the only reasoning on which the presiding officer based her guilty finding was that Mr Twalo, as a senior HR administrative clerk, he had full access to the victim’s medical reports and that he was, therefore, fully aware of her condition. The LC on discussing the findings in detail, said the presiding officer’s decisions were neither rational nor reasonable and stood to be reviewed and set aside. However, the LC added that it disagreed with the primary relief the Department sought, namely, that the presiding officer’s decision be set aside and replaced with an order that Mr Twalo is guilty of all allegations against him.
The LC said that in Consol Ltd t/a Consol Glass v Ker NO and Others [2002] 4 BLLR 367 (LC), Waglay J (as he then was) in considering whether an award should be corrected by the revising court or remitted back for a hearing, referred to the unreported matter Emcape Thermopack (Pty) Ltd v CEPPWAWU (unreported case no C509/99). The court identified four circumstances when it would be appropriate for a court to correct a decision –
‘1. where the end result is foregone conclusion;
The LC said even though Emcape Thermopack concerned a review in terms of s 158(1)(g) of the LRA, the court found that there is no material difference between the provisions of s 145 and s 158(1)(g) regarding the power of the LC to correct an arbitration award set aside on review. The LC added that must also apply to s 158(1)(h). The LC noted that some of the above factors do not apply to the present case. The LC said the matter must be remitted to the Department for another presiding officer to determine whether Mr Twalo is guilty of all the allegations – including those in charge two – against him. The LC pointed out that it would better serve the interest of justice that another presiding officer determine the allegations holistically.
The LC made the following order:
‘a. The decision of the second respondent made on 21 October and 10 November 2020 are reviewed and set aside.
Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.
This article was first published in De Rebus in 2022 (September) DR 26.
