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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on whistleblowing and victimization and covers a recent important SCA case on the topic. We look at two new Labour court cases: the first deals with the right to representation in the Labour Court. The second deals with an allegation of sexual harassment based on the evidence of a single witness.
This public newsletter is a free edited version of the Worklaw subscriber newsletter.
Representation at the Labour Court
Section 161(1) of the LRA says that in any proceedings before the Labour Court, a party to the proceedings may appear in person or be represented only by-
- a legal practitioner
- a director or employee of the party;
- any member, office-bearer or official of that party's registered trade union or registered employers' organization;
- a designated agent or official of a council; or
- an official of the Department of Labour.
In the recent case of Cementation Mining v Commission for Conciliation, Mediation and Arbitration and Others (2010) 31 ILJ 1167 (LC), a representative advised the Court that he was a union official representing “Ubuntu”, which he claimed was a registered trade union. This was later established to be untrue. He subsequently filed a letter, signed by the general secretary of an organisation named as the Intellectual Democratic Workers Union, certifying that he was an official of that union. The Intellectual Democratic Workers Union had previously played no role whatsoever in the proceedings, nor had the representative disclosed when his status as a representative was challenged, that he or his members were in any way affiliated to the Intellectual Democratic Workers Union. The Labour Court showed its great displeasure at this abuse. Not only did the court order costs to be paid by the union, it ordered the matter to be referred to the Registrar of Trade Unions.
The principle to be drawn from this case is that the right of access to justice requires that litigants enjoy access to legal advice and to representation in the Labour Court. The LRA gives effect to this right by affording the right of appearance in the Court to a broader range of representatives than is the case in other Courts of equivalent status, but this is still limited by the requirements of section 161(1) of the LRA. Where this is abused, the court is likely to award costs against unregistered trade unions and report the abuse to the Registrar of Trade Unions for further action. This judgment serves as a clear warning to those employers and unions who seek to have their cases represented by persons who do not properly qualify in terms of section 161(1) of the LRA.
Sexual harassment and the single witness
A tension exists for employers. Section 60 of the EEA requires an employer to take all necessary steps in response to an allegation of sexual harassment, so as to avoid being found liable for the harassment. The employer usually discharges this duty by investigating and holding a disciplinary enquiry. But sexual harassment is often a private interaction without witnesses beyond the alleged victim and the alleged harasser. What should a responsible employer do in the absence of other corroborating evidence?
This tension played out in SAMWU on behalf of Petersen v City of Cape Town & others (2009) 30 ILJ 1347 (LC) where an employee, a supervisor employed by the city council, had been found guilty of sexual harassment of a temporary contract employee and had been dismissed despite his denial of such conduct. A bargaining council arbitrator, relying on the uncorroborated evidence of a single witness, the complainant, upheld the dismissal. The dismissed employee took the arbitrator's award on review, on the grounds that it was irrational. The court considered the evidence before the arbitrator and questioned how the complainant, who testified that she considered an incident of sexual harassment so offensive that she went to the police, did not press criminal charges against the employee but only deposed to an affidavit before a police officer. Furthermore, she failed to tell anyone at work, contending that she feared that she would lose her job. She also couldn’t remember the day or month or place where one of the alleged incidents had happened. In addition, she failed to explain the conflicting versions given in her affidavit and in her testimony during the arbitration.
Having considered the evidence led at the arbitration hearing, the court noted that the arbitrator had made several credibility findings against the complainant, and had not taken the employee's version into account in assessing the probabilities. The court found that the evidence before the arbitrator was insufficient to come to the conclusion that the city council had discharged the burden of proof. There was no rational connection between the evidence and the arbitrator’s conclusion that the employee was guilty of sexually harassing the complainant. His conclusion was based on the uncorroborated evidence of a single witness whose credibility had been seriously challenged. The court concluded that the complainant's evidence was so materially flawed that no reasonable decision maker could have relied on it in seeking to arrive at a fair and reasonable conclusion.
The court set aside the award. It found that the dismissal of the employee had been substantively unfair and ordered his retrospective reinstatement.
What do we learn from this case?
The facts and circumstances of this case revealed very clearly the inherent danger of relying on the testimony of a single witness whose version was not corroborated by any other evidence. This case must however be viewed in context with Barloworld Coachworks Wynberg v MIBC & others (LC Case No JR327/07; judgment 5 May 2009) discussed in our August 2009 subscriber newsletter, which stated (whilst not dealing with the specifics of sexual harassment) that the cautionary rule against a single witness cannot be applied as a general rule, and if an arbitrator disallows evidence solely because there is only one witness, this will constitute a reviewable irregularity.
How then does the employer balance these approaches when dealing with sexual harassment claims by a single witness? In our view the learning from these cases is simply this: employers must bear in mind that they have the onus to prove misconduct, which may be difficult to establish in cases where the only evidence is the conflicting versions given by the alleged harasser and the complainant. The employer must consider all the circumstances and weigh up the probabilities, to ensure that there is a rational connection between any conclusion reached and the evidence led.
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