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Arbitration Award Rendered

 

Case Number: GAJB9261-19

Commissioner: Ronel de Wet

Date of Award: 6-May-2022

 

In the ARBITRATION between

 

F A(Union/Applicant)

 

and

 

University of the Witwatersrand (Respondent)

 

SUMM [....] 5: Labour Relations Act 66 of 1995 – Alleged Unfair Dismissal – Misconduct – Gender Bullying and Gender Harassment – Whether dismissal was substantively and procedurally fair;

 

Head of School’s actions / omissions or otherwise towards staff in general and whether such was bias towards a specific gender - Appropriateness of Sanction;

Procedural fairness – Test for fairness.

 

DETAILS of HEARING and REPRESENTATION:

 

[1].  The matter was referred to the Commission for Conciliation, Mediation and Arbitration (“CCMA”) in terms of section 186(1) read with section 191 of the Labour Relations Act, 66 of 1995 (“LRA”). The arbitration commenced on 25 September 2019, and was heard over various days over a two-year period. The arbitration was held at the CCMA Head Office in Johannesburg whereafter it continued at the offices of Evershed Sutherland in Melrose Arch. At the conclusion of the process on 2 April 2022, opportunity was granted for heads of argument to be filed by 11 April 2022 whereafter a further fourteen (14) days extension was granted to submit the award.

 

[2].  The Applicant, FA, who requested his identity to be protected, was present and was initially represented by Adv. Ngwenya, instructed by Vilakazi Attorneys, and thereafter by Mr Luthuli from Cowan Harper Madikizela (CHM) attorneys. The Respondent, University of the Witwatersrand, by Mr. Milo from Eversheds Sutherland attorneys.

 

[3].  Bundles of documents were exchanged at the commencement of the proceedings and it was agreed that the documents are what they purport to be, without admission of the truthfulness of the contents thereof. It was agreed that, due to the voluminous nature of the documents, that parties would have a single set of documents on which both will rely and was marked as follows:

 

[3.1]. Bundle A – the bundle relied on at the Enquiry and pursuant to which FA was dismissed;

[3.2]. Bundle B – the bundle relied on at the Enquiry and pursuant to which FA was dismissed;

[3.3]. Bundle C – FA’s bundle;

[3.4]. Bundle D, including D1 and D2 - the Respondent’s bundles;

[3.5]. Bundle E, including E1, E2 and E3 – the transcripts of the record of the internal Enquiry held at the University and pursuant to which FA was dismissed.

 

[4].  The parties had conducted a pre-arbitration meeting and subsequently handed up a signed pre-arbitration minute in terms of which the parties had inter alia agreed that the Respondent would begin with the leading of evidence.

 

[5].  At the commencement of the proceedings a request was made by both the Respondent and the Applicant to protect the identity of some of the witnesses of the Respondent as well as that of the Applicant. Reference henceforth to any of these individuals will be made by initials only.

 

ISSUES in DISPUTE:

 

[6].  The issue in dispute to be determined is whether or not the dismissal of the Applicant, on allegation of misconduct, was substantively and procedurally fair. In the event of a finding in the negative, to determine the appropriate remedy.

 

PRELIMINARY POINTS / POINT IN LIMINE

 

I will not belabor this award with the different points raised and rulings issued during the course of the arbitration proceedings, as it is on record.

 

FACTUAL BACKGROUND to the DISPUTE:

 

[7].  The Applicant was employed by the University with effect from 1 April 2014 to 11 April 2019, as the incumbent in the position of Head of School (“HOS”), in the School of Geography, Archaeology and Environmental Sciences (“GAES”) of the University of the Witwatersrand (“Wits” or the “University”).[1]

 

[8].  At the end of FA’s term as HOS of GAES, on 30 March 2019, he would have held the position of Academic Professor.

 

[9].  The Respondent is a tertiary institution with GAES being a School within the Faculty of Science.

 

[10].  Pursuant to several complaints being received during or about 2016 to 2017 from various subordinates of FA, an investigation was conducted into the allegations. FA was placed on special leave on or about 6 November 2017.

 

[11].  On or about 26 January 2018, the Gender Equity Office (“GEO”), as part of the investigation process, delivered a letter to FA in terms of which it:

 

[11.1].           outlined the various complaints against him by staff and students of the University; and

[11.2].           afforded him an opportunity to respond to the allegations set out therein.

 

[12].  FA submitted a document titled “Response to Allegations”, to the GEO on or about 2 February 2018.

 

[13].  The investigation culminated in a report issued by the GEO during March 2018[2]. Following thereto FA submitted a document titled “Response to the GEO Report” to the GEO.

 

[14].  A panel was appointed by the University to preside over an enquiry (hereinafter referred to as the “Enquiry Panel”). The panel consisted of the following persons:

 

[14.1].           Prof. Salim Nakjavani (“Nakjavani” - Chairperson);

[14.2].           Prof. Srila Roy (“Roy” - Panel Member);

[14.3].           Prof. Jackie Dugard (“Dugard” - Panel Member); and

[14.4].           Ms. Abigail Dreyer (“Dreyer” - Reserve Panel Member).

 

[15].  The Enquiry Panel[3], excluding the appeal/review proceedings, endured for a period of 9 days over a 7 months period, and was scheduled to took place on 9 and 22 May, 13 June, 18 July, 15 August, 12 September, 26 and 31 October and was finalised on 2 November 2018. The allegations proffered against FA can broadly be categorised as gender-based harassment and gender-based bullying.

 

[16].  A final report was handed down by the Panel on 21 December 2018 wherein the following finding was made:

 

“On a holistic assessment of the evidence, then, the panel finds on a balance of probabilities that Professor FA engaged in systemic gender-based bullying of complainants 1, 2, 4. 5. 6, 7 and 9 in the period from mid-2015 to late 2017, in the course and scope of his employment as Head of GAES. The panel confirms these seven complaints.

 

For the reasons mentioned at the outset of this report, the panel cannot confirm complaints 3 and 8.”[4]

 

[17].  The panel recommended the removal of FA as the HOS of GAES and his sumM [....] 5 dismissal from the University[5]. Following thereto, FA filed an application for review / appeal and a final outcome was given by Justices Y Mokgoro and Justice Z Yacoob on 8 April 2019, effectively upholding the findings of the panel and enforcing its recommendation.

 

[18].  On or about 11 April 2019, the University issued FA with a Notice of Termination of his employment, which termination was effective immediately.[6]

 

[19].  Dissatisfied with the finding and outcome, FA referred a dispute to the CCMA which was received on or about 17 April 2019[7], whereas the substantive and procedural fairness of the dismissal was disputed. The relief sought by FA is retrospective reinstatement, alternatively 12 months’ compensation amounting to R1 195 641.00.[8]

 

[20].  The University did not dispute that FA has mentored and supported some female colleagues and support staff, however argued that it does not, in and of itself, mean that he did not bully the complainants. It was contended that FA displayed a general bias towards the complaints and that there was accordingly a valid reason for his dismissal. In terms of the pre-dismissal procedure followed, it was maintained that the dismissal was procedurally fair, and therefore contended that he is not entitled to any relief. In addition, the University seeks an order that the referral be dismissed, with costs.

 

SURVEY of EVIDENCE and ARGUMENT:

 

It is not my intention to repeat all aspects of the respective testimonies of each of the witnesses who testified during the course of the arbitration, but only to highlight the different submissions in general. The evidence will be dealt with in more detail later in this award. All the witnesses that were called during this arbitration, duly took an affirmative before delivering their respective testimonies.

 

Respondent’s evidence and or argument:

 

[21].  I am indebted to the University for the table provided below that set out the relevant role players in this matter as follows:    

 

Role player title, name and surname	Role player description	University witness / FA witness
Prof. FA	The applicant, and the Head of School from April 2014 – November 2017	FA
Prof. Karim Sadr	The Head of School prior to FA’s tenure
Prof. Helder Marques	The Dean	FA
Prof. Ebrahim Momoniat	The New Dean
The Complainants
Ms. Y [....] C [....]	Complainant 1	University
Prof. J [....] F [....]	Complainant 2	University
Ms. DK	Complainant 3
Ms. E [....] M [....]	Complainant 4	FA
Dr. S [....] M [....] 1	Complainant 5	University
Dr..C [....] 1 N [....]	Complainant 6	FA
Dr.M [....] 2 S [....]	Complainant 7	University
D [....] DP [....] 1	Complainant 8
Ms. WP	Complainant 9	University
Former colleagues
Dr S [....] 1 B [....]	Former UKZN colleague	University
Ms. D [....] 2 S [....] 2	Former UKZN colleague	University
Mr. F [....] 1 S [....] 3	Former UKZN colleague	University
Prof. B [....] 1 M [....] 3	Former UKZN colleague	FA
Prof. T [....] D [....]	Former WITS colleague
The Enquiry Panel
Prof.Salim Nakhjavani	Chairperson	University
Prof.Jackie Dugard	Panel Member
Prof. Srila Roy	Panel Member
Ms. Abigail Dreyer	Reserve Panel Member
Expert witnesses
Prof.Peace Kiguwa	Expert witness in the hearing
Prof.Malose Langa	The University’s expert witness in the arbitration	University
Geographers in the School
Prof. C [....] 2 C [....] 3	Context witness in the hearing, the Head of Department at material times and the Acting Head of School when FA was placed on special leave	University
Prof.J [....] K [....]
Prof. M [....] 4 S [....] 4	FA witness	FA
Prof. S [....] 5 G [....]	FA witness	FA
Prof. E [....] 1 A [....]	FA witness	FA
Dr. A [....] 1 W [....]	FA witness
Dr. M [....] 5 E [....] 2
Dr. R [....] M [....] 6	FA Witness	FA
Archaeologists in the School
Prof.D [....] 3 Stratford
Prof.A [....] 1 S [....] 6		FA
Ms.T [....] R [....]		FA
Prof. S [....] 7 W [....]		FA
Support services in the School
Ms.K [....] 1 N [....] 1	Finance Officer	FA
Mr.Y [....] 1 H [....]	FA Witness: Hearing
Mr.C [....] 3 M [....] 6	Finance Officer

 

[22].  The University called eleven (11) witnesses during this arbitration. These witnesses were:

 

[22.1].           Nakhjavani, one of the hearing panel members, who took the lead as the chairperson of the hearing of FA;

[22.2].           Prof. C [....] 2 C [....] 3 (“C [....] 3”), the Head of the Geography Department at material times, the acting HOS when FA was placed on special leave and the context witness who testified in the hearing.

[22.3].           Dr. S [....] M [....] 1 (“M [....] 1”), a lecturer, who was promoted to senior lecturer after FA was placed on special leave, employed in the Geography Department in the School;

[22.4].           Prof. J [....] F [....] (“F [....]”), an associate professor employed in the Geography Department in the School;

[22.5].           Dr. M [....] 2 S [....] (“S [....] ”), a lecturer employed in the Geography Department in the School;

[22.6].           Dr. S [....] 1 B [....] (“B [....] ”), one of FA’s former colleagues from the University of Kwa-Zulu Natal (hereinafter referred to as “UKZN”);

[22.7].           Ms. D [....] 2 S [....] 2 (“S [....] 2”), one of FA’s former colleagues from UKZN;

[22.8].           Mr. F [....] 1 S [....] 3 (“S [....] 3”), one of FA’s former colleagues from UKZN;

[22.9].           WP, the School’s cartographer;

[22.10].         Y [....] C [....] (“C [....]”), the School’s GIS / Remote Sensing Technician;

[22.11].         Prof. Malose Langa (“Langa”), an expert witness;

 

[23].  These witnesses testified to a general gender-based management style of FA that amounted to gender-based bullying and/or gender-based harassment. Several instances were highlighted from the own-lived experiences of the complainants and/or witnesses accounts of incidents that transpired. It was argued that the Respondent succeeded in proving the allegations proffered against FA and that his dismissal was accordingly substantively fair. The testimony also included an expert witness as well as the procedure followed during the Enquiry that subsequently followed. In the light of the above, it was argued that the dismissal of FA was also procedurally fair and that the referral should be dismissed with costs.

 

Applicant’s evidence and or argument:

 

[24].  FA called thirteen (13) witnesses, including himself, and these witnesses were:

[24.1].           Prof. FA;

[24.2].           Prof. Helder Marques (“Marques”), the Dean;

[24.3].           Prof. B [....] 1 M [....] 3 (“M [....] 3”), one of FA’s former colleagues from UKZN;

[24.4].           Prof. M [....] 4 D [....] 4  S [....] 4 (“S [....] 4”), professor employed in the Geography Division in the School;

[24.5].           Prof. S [....] 5 G [....] (“G [....] ”), professor employed in the Geography Division in the School;

[24.6].           Prof. E [....] 1 A [....] (“A [....] ”), professor employed in the Geography Division in the School;

[24.7].           Dr. R [....] M [....] 6 (“M [....] 6”); lecturer employed in the Geography Division of the School;

[24.8].           Prof. A [....] 1 S [....] 6 (“S [....] 6”); professor employed in the Archaeology Division of the School;

[24.9].           Dr. E [....] M [....]; (“M [....]” - subpoenaed witness) complainant 4 and lecturer;

[24.10].         Dr. C [....] 1 N [....]  (“N [....] ”- subpoenaed witness) complainant 6 and lecturer;

[24.11].         Prof. S [....] 7 W [....] (“W [....]”); professor employed in the Archaeology Division of the School; and

[24.12].         Ms. K [....] 1 N [....] 1 (“N [....] 1 ”), finance officer in the School; and

[24.13].         Ms. T [....] R [....]  (“T [....] ”), from the Archaeology Division.

 

[25].  In principle the testimony of the witnesses was tendered to dislodge the evidence presented by the University. It was submitted that FA had to manage under very difficult circumstances and that he is not guilty as alleged. Furthermore, that the process followed by the Enquiry Panel was unfair and that the subsequent dismissal was accordingly substantively and procedurally unfair.

 

ANALYSIS of EVIDENCE and ARGUMENT:

 

Legal considerations:

 

[26].  In the matter before me, the existence of a dismissal was not in dispute, and therefore the onus rests with the University to prove, on a balance of probabilities, that the dismissal was both substantively and procedurally fair[9].

 

[27].  In analysing the evidence, cognisance was taken of the Code of Good Practice: Dismissal, Item 7, Guidelines in cases of dismissal for misconduct, set out the in Schedule 8 of the Labour Relations Act, and the CCMA Guidelines on Misconduct Arbitration. This award contains brief reasons[10] for the decision arrived at and although all the evidence and argument may not be specifically detailed in this award, consideration have been given to all that was presented during the arbitration in terms of relevance in reaching this decision.

 

[28].  The dispute before me was largely a factual one. In order to resolve factual disputes, findings must be made with reference to (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities.[11] I will make these findings during the course of the award.

 

Evaluation of the testimony of the witnesses:

 

[29].  The University argued that all their witnesses, were credible witnesses who gave evidence in a confident and truthful manner which assisted in the finding of the fairness of FA’s dismissal. They went on to argue that the complainants and University witnesses, corroborated each other and, in many instances, their testimonies also aligned with FA’s own witnesses, such as M [....] 6, who relayed her experience regarding FA’s conduct in meetings, that are similar to that of the complainants’ and of C [....] 3.

 

[30].  FA did not address this fact in his heads of argument, save to state that cross-examination was aimed at discrediting the witnesses of the University during the arbitration proceedings.

 

[31].  In analysing the evidence, a holistic approach to the large body of evidence presented during the arbitration is required[12]. Caution must be taken against adopting a piecemeal approach to the evidence and even if some discrepancies in the testimonies of witnesses are noted, from a cumulative approach, regard must be had to whether the evidence was consistent and corroborated[13].

 

[32].  I will deal with the evaluation of the evidence in groups of similarities derived from their respective testimonies. In terms of the University witnesses, the groups to be discussed will be the following: the complainants, the corroborating witnesses, including the witnesses of UKZN, the chairperson of the enquiry panel, and the expert witness.

 

The complainants:

 

[33].  The complainants that testified during the arbitration proceedings, were M [....] 1, S [....] , WP, F [....], and C [....]. I am inclined to agree with the University that the complainants were all exemplary witnesses. They provided direct evidence as to the incidents complaint of and on the whole thereof, their respective testimonies were impressive. Minor inconsistencies were noted but not to the extent that a negative inference should be drawn from their testimonies.

 

[34].  Having regard to the emotion expressed by the complainants when having to relive their lived- experiences, one can reach no other conclusion but that it was an honest and sincere reaction to what occurred at the workplace. It would be insincere under such circumstances to argue that their respective testimonies were invented or fabricated. To demonstrate this point, S [....] and WP were visibly emotional when cross-examined by FA, to the extent that the proceedings were briefly adjourned. Having observed their testimonies, the inference drawn is that they gave an honest and sincere account of what transpired.

 

The corroborating witnesses:

 

[35].  The corroborating witnesses, included C [....] 3 who also gave direct evidence as to incidents that he witnessed as well as complaints that he had to deal with from the complainants. C [....] 3 made a good impression as a witness. He testified freely and openly and there was nothing placed before me that this witness had a latent or blatant bias towards either FA nor the complainants. His testimony corroborated that of the complainants in all aspects and he was able to recall events independently and persuasively.

 

[36].  Turning to the testimony of the erstwhile colleagues of FA at UKZN, to wit, B [....] , S [....] 2 and S [....] 3, albeit no direct evidence was given by these witnesses as to the incidents in question, their testimony provided similar fact evidence pointing to a general gender-biased management style of FA. The respective testimonies of these witnesses corroborated each other and was consistent with the evidence of the complainants. From the evidence before me, there appeared to be no reason why the evidence of these witnesses should not be believed as credible and reliable.

 

Chairperson of the Enquiry Panel:

 

[37].  The evidence of Nakhjavani was largely common cause in relation to the pre-dismissal procedure. He made a good impression in terms of his candor and demeanor in the witness-box. His evidence is considered to be credible and reliable in all aspects.

 

Expert Witness:

 

[38].  Langa’s testimony was concise, distinct and consistent in all aspects. His testimony provided an expert view on the concept of gender bullying and gender harassment and will be discussed in more detail below.

 

[39].  In all material aspects, the evidence of the witnesses of the University was corroborated by documentary evidence presented during the arbitration and between the witnesses themselves. For the above reasons, the testimonies of the witnesses of the University are accepted as truthful and credible.

 

FA’s evidence:

 

[40].  Turning to the testimony of FA and his witnesses, the same approach will be taken with these witnesses as the University’s witness. The evidence was divided into groups of similarities, consisting of FA, the corroborating witnesses, and the subpoenaed witnesses.

 

FA:

 

[41].  FA did not impress as a witness. The veracity of his testimony was questionable, due to the following:

 

[41.1]. FA’s candor and demeanor in the witness-box was unimpressive. He was argumentative and wanted to dictate the manner of questioning and the answering thereof. Routinely he would circumvent answering questions posed to him during cross-examination and on numerous occasions, would only answer questions posed to him upon my intervention. More often than not, Mr Milo had to embark on painstakingly and F [....] 1ly unnecessary cross-examination, because FA would not make reasonable concessions.

[41.2]. A few outbursts from him were also observed, mostly directed at Mr. Milo, however at some point his aggression and agitation was directed at me. He conducted himself in a disrespectful manner which also included laughing at the witnesses and slamming his fists on the table. He showed no reluctance in circumventing commenting on statements of the complainants by stating in a diminishing fashion, it is their version or just stating I totally disagree without providing a reasonable or rational explanation for same. This compounded the impression that he was lacking openness in the manner he answered questions posed to him during cross-examination.

[41.3]. Similarly, internal and external contradictions were observed in his testimony and in relation to his own witnesses. This will be demonstrated in more detail below. A comparison in the manner he performed in the witness-box to that of the complainants, clearly showed a moderated quality and cogency of his testimony. He would point out during cross-examination that his witnesses would testify in corroboration of his testimony, and also alluded to certain documents that could be provided in support of his version, however no such was ultimately presented.

[41.4]. I will return to the probability of his testimony in more detail below.

 

The corroborating witnesses:

 

[42].  The corroborating witnesses included Marques, M [....] 3, S [....] 4, G [....] , A [....] , S [....] 6, W [....], M [....] 6, N [....] 1 and R [....] . I pause to mention, before I continue with the evaluation of the evidence of FA and his witnesses, that from a cumulative consideration of FA’s evidence, it would appear to me that FA’s witnesses were removed from the incidents alluded to by the complainants and C [....] 3, either because they were not present during the exact times, or they just did not think it was important and therefore could not remember or worst, they made a concerted effort to come to FA’s assistance.

 

[43].  The testimony of Marques did not assist much in determining the substantive nor procedural fairness of FA’s dismissal as he holds no knowledge of any of the incidents that gave rise to the allegations preferred against FA, accept to a limited extent to the incident relating to M [....] 1’s request to be seconded to the GCRO. It is however evident from his testimony that he did not question nor second guess FA’s actions or motives at the time of FA’s employment, but appears to have accepted everything told to him by FA at face value. He explained, in relation to M [....] 1’s request to be seconded, that it was a necessary prerequisite to determine whether she could be replaced before the secondment would be approved. However, was disappointed to learn that FA did not advertise the position of M [....] 1 as a prerequisite for her transfer.

 

[44].  M [....] 3 could also not add any value to the fairness of FA’s dismissal as he did not have any knowledge of any of the allegations proffered against FA. His testimony focused on the period of FA’s employment at UKZN.

 

[45].  The testimonies of S [....] 4, G [....] and A [....] are treated with circumspection for the reasons to follow below. Firstly, because they did not appear to have knowledge of any of the incidents complaint of by the complainants. Their testimonies were vague in this area, as they adopted a general response by denying that they witnessed any such incidents. I would have, at the very least, expected of them to make the reasonable concession, that the incidents complaint of could have happened despite the fact that they did not witness same. This seriously damaged their credibility. Secondly, they were all suspected of being part of the “boys club” and the manner in which they answered questions, confirmed the suspicion that their testimonies were aimed at rushing to FA’s assistance. Neither one of them impressed as witnesses, as their testimonies are not considered to be objective nor neutral, but instead appears to be blatantly biased towards FA and a strong sense of hostility towards either the complainants and / or the GEO. Having observed their demeanor whilst they testified, I formed the perceived that they have been unduly favoring their own group, being the male group, which is then supportive of the notion of the “boys club”. This conclusion will be further discussed in more detail below.

 

[46].  To this extent both S [....] 4 and G [....] testified as to their respective relationships that they had with FA, and conceded that their relationship strengthened recently. S [....] 4, in particular, shared a commonality with FA, in that both went through the same or similar processes at the University, to wit, enquiries into their conduct. S [....] 4 referred to four (4) of the complainants that according to him are either “anti-men” or testified in his disciplinary hearing. These four (4) complainants are, S [....] and M [....] 1, F [....] and WP.

 

[47].  As for G [....] , the University drew my attention to a specific portion of his testimony during the arbitration proceedings and argued that his motive was not only to defend FA, but at the same time to seek retribution against three (3) of the women whom he considers to have wronged him, to wit. M [....] 1 and S [....] as well as F [....], one (1) of whom he went as far as to say: holds within her cruel spiritual forces. I am inclined to agree with the University in this regard. Probably the least impressive of the witnesses who testified during these proceedings, was G [....] , and the words used by him to the following effect, clearly displays his bias:

 

“Yes, am I here to defend FA, absolutely. Of course, I am here to defend him. In my view, my boss lost his job because of accusations against him – I don’t know fullness of those accusations – but I believe I have not seen any wrongdoing … to the extent to culminate in a dismissal.”

 

[48].  G [....] not only holds this view, but verbalised it in such detail, yet he admits that he does not know the fullness of the accusations against FA.

 

[49].  In regard to the testimony of A [....] , a similar trend was observed, namely the extreme vague and inconsistent manner in which he answered questions posed to him during cross-examination. The concerted effort made to answer questions in such manner that he leaves room to supplement his testimony where needed, was evident. His performance in this regard in the witness-box negatively affected the credibility and reliability of his testimony.

 

[50].  Equally important is the fact that inherent inconsistencies were noted in the testimony of all three these witnesses (S [....] 4, G [....] and A [....] ), as their versions changed during the course of the arbitration. Moreover, contradictions, evasiveness and refusal to make reasonable concessions were noted from all three witnesses. Against the backdrop of feeling supported under the leadership of FA, leads me to the conclusion that their testimonies are biased and therefore not reliable.

 

[51].  Of great significance is the fact that S [....] 4 holds the view that the GEO process, insofar it pertains to his and FA’s enquires, was unfair, and this points to a motive to misrepresent the facts as he has an axe to grind with the GEO and some of the complainants who testified in his hearing.

 

[52].  I am inclined to accept the contention from the University that the comments of the Enquiry Panel in its findings are apt and should be applied here when assessing the evidence of FA’s witnesses and its bearing on the allegations of misconduct perpetrated against the complainant:

 

“It bears noting that the panel is not faced with two mutually-destructive versions of events, where the truth of one version destroys the other. It is more accurate to say that the panel was presented with strikingly different lived experiences of colleagues…[14]”

 

And

 

“Nor do we question at all the many varied instances of supportive behaviour, warmth, fellowship and collegiality that certain among [FA’s] male and female colleagues enjoyed. What is essential to the findings of the panel though, is that none of this behaviour undermines the veracity of the complainants’ accounts of their lived experience under his management authority, or the proper classification of those experiences as harassment as a form of gender-related misconduct.”[15]

 

[53].  Turning to the testimonies of M [....] 6, S [....] 6 and W [....], N [....] 1 and R [....] , it was evident that these witnesses had no knowledge of the specific incidents and could add no value to the enquiry at hand. As for M [....] 6, S [....] 6, W [....] and R [....] ’s persistence in speculating on the truthfulness or otherwise of the allegations made by the complainants, showed their willingness to speculate and to rush to the defense of FA.

 

[54].  N [....] 1 made the concession that she had no knowledge of the allegations and therefore could not add any value to the enquiry at hand. To this extent she is viewed as an honest and forthcoming witness.

 

 The subpoenaed witnesses:

 

[55].  The subpoenaed witnesses, included M [....] and N [....] .

 

[56].  N [....] ’s testimony was impressive and she made a good impression in the witness-box. She gave testimony in a poised and authentic manner, despite the fact that she was accused of being a hostile witness. Not only was her testimony consistent, but no bias could be detected in her evidence. Her testimony was however not fully aligned with FA and some of his other witnesses’ testimonies. Much like what was observed in the case of S [....] and WP, N [....]  also expressed emotion during her testimony when questions were posed to her relating to her lived-experiences involving FA. These emotions appeared sincere and truthful and in the absence of any evidence to suggest that her evidence must be treated with caution, she is regarded as a credible witness.

 

[57].  M [....]’s testimony was also believable as she gave honest and consistent evidence which in many regards corroborated that of the complainant.

 

SUBSTANTIVE FAIRNESS:

 

[58].  As a point of departure, it is prudent to restate that it is the University’s case, that FA adopted a general gendered management style, however it was not the contention that he did not have some women who were in his good graces. This however, the University argued, does not purport to indicate that he did not bully or harassed the complainants.

 

[59].  If one has regard to the version of FA, he admitted that he fully understands the concepts of structural sexism and gender discrimination and denies being guilty of any act in contravention of these concepts.

 

The concept of workplace bullying:

 

[60].  For many people the concept of “bullying” may spark unpleasant reminiscences from earlier years at school. The concept of workplace bullying is a relatively new concept, as many may have thought that bullying is something that is a notion unique to the school environment. It may be unfathomable that an adult may fall victim to bullying in the workplace. This misperception has been dispelled as can be seen from two (2) recent judgments from the Labour Court, as well as various academic writings, authored on the subject. From a reading of the judgements, it is evident that tactics may change, but the concept is something that survived school days and, in some instances, made its way into the workplace.

 

[61].  Reliance was placed by the University on the Labour Court judgment in Standard Bank of South Africa v Zimbini Makuleni[16] (“Standard Bank”) where the Court grappled with the issue of workplace bullying by a senior employee of Standard Bank of several of her subordinates. It was argued that the issues in that matter are very similar to this one at hand.

 

[62].  Judge Boda, AJ, in Standard Bank endorsed an article authored by Prof. Alan Rycroft (“Rycroft”) entitled Workplace bullying: Unfair discrimination, dignity violation or unfair labour practice? (2009)[17], in which he sought to give content to the concept of workplace bullying, which he suggested constituted a form of harassment. Prof. Rycroft said, among other things, the following:

 

“‘…workplace bullying has been linked to a feeling of incompetence in handling the job, to a sense of alienation from colleagues, to anxiety that there will be no promotional recognition, to job security, to feelings of inadequacy, to knock on tensions in personal relationships and to depression.’” (emphasis added)

 

Prof. Rycroft suggests the following definition of workplace bullying:

 

“‘[It] [i]s generally seen as persistent and unwelcome conduct which is hostile or offensive to a reasonable person and induces a fear of harm and demeans, humiliates or creates a hostile and intimidating environment [and] was calculated to induce submission by actual or threatened adverse consequences. Taking these generic aspects of harassment, it has been suggested that bullying refers to any unfavourable or offensive conduct on the part of a person or persons which has the effect of creating a hostile work environment. In these terms, bullying includes a wide range of insulting, demeaning or intimidating behaviour that lowers [the] self-esteem or self-confidence of an employee. Rycroft identifies a number of specific behaviours of which include persecution in various forms, threats and inspiration of fear, degradation, harassment, deliberate insults, hypercritical negative responsible attitude, ridicule, unfriendliness, offensive administrative penial sanctions which are suddenly directed against any individual without any objective cause, explanations or efforts solving any underlining problems.’” (emphasis added)

 

[63].  In this regard see also the Labour Court judgement in Centre for Autism Research and Education CC v Commission for Conciliation, Mediation and Arbitration and Others[18] (“Centre for Autism”), where the Court was confronted with the resignation of two (2) employees who worked for the Centre for Autism Research and Education, an independent school who caters for learners affected by autism spectrum disorder. The Commissioner found the behaviour of the sole member and director of the Centre, shocking and unacceptable. Judge van Niekerk, had no hesitation in finding, with reference to the article by Rycroft, that the nature and extent of the workplace bullying suffered by the two (2) employees was of such that the employment relationship was rendered intolerable.

 

[64].  In addition, the University referred me to the CCMA information sheet on harassment, which it argued is aligned with Rycroft’s views on bullying. Whilst examples of harassment are too diverse to enumerate, examples mentioned therein are the following:

 

·      “Bullying;

·      Spreading malicious rumours, or insulting someone, particularly on gender…;

·      Ridiculing or degrading someone – picking on them or setting them up to fail;

·      Exclusion or victimisation;

·      Unfair treatment, for example based on… gender…;

·      Overbearing supervision or other misuses of power or position;

·      Making threats/comments about job security without foundation;

·      Deliberately undermining a competent worker by overloading and constant criticism;

·      Preventing individuals progressing by intentionally blocking promotion or training opportunities”.

 

[65].  Langa, the expert witness of the University, made a distinction between direct / over bullying and indirect / covert bullying. He alluded to the fact that indirect/covert bullying is more subtle and is aimed at harming people on an emotional level. This type of bulling is also intended to inflict pain on the recipients in such manner that the intent can be denied at a later stage. He went on to explain a serious form of bullying is gaslighting, which entails “actions that cause colleagues to question themselves and their actions in a way that is detrimental to their careers… a type of psychological abuse aimed at making victims doubt their competencies[19].” certain misinforms that create a false narrative which makes the recipients thereof question themselves.

 

[66].  It was not disputed that Langa is significantly skilled, qualified and experienced to provide expert evidence on gendered workplace bullying and the effects thereof on a person. The purpose of which expert evidence is introduced is to assist in the understanding of the trier of fact on matters that go beyond the scope of common knowledge.[20] The value of an expert witness’ testimony is not to espouse and further the cause of a particular party, but to assist the court or an arbitrator in arriving at a proper decision on technical and scientific matters. It should therefore at all times be remembered that an expert is primarily there to assist in this finding and not to further the cause of his particular party to such an extent that he loses objectivity.[21] The evidence of Langa was of great assistance in understanding the concept of bullying and as will be discussed in further detail below. The evidence presented will be evaluated against this backdrop to determine whether or not the dismissal of FA was fair.

 

[67].  I am mindful of the newly published Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace[22], which has as it objective to eliminate all forms of harassment in the workplace and any actively linked thereto, also codified many of the above forms of harassment, however it must be noted that the allegations and subsequent dismissal which forms the basis of the dispute before me, preceded the Code.

 

[68].  The concept of gender bullying is distinguished from bully in as far as the first occurs along gendered lines, in other words the distinguishing factor is that the bullying is meted out along gendered lines, this was the testimony of Prof. Kiguwa during the Enquiry of FA. Albeit that Kiguwa did not testify during the arbitration proceedings, Langa testified that he has read, and concurs with the testimony and observations from Kiguwa. The uncontested testimony of Kiguwa at FA’s Enquiry was to the following effect:

 

“Gender harassment speaks to being the target of particular kinds of gendered remarks of behaviour”.[23] “... sexual harassment and gender harassment is different in the sense that sexual harassment would be a typical sexual advance that is centered around [a] come on… Whereas a gender harassment is typically as you would describe as a put down.[24]

 

Evaluation of evidence in matters of concerning workplace bullying:

 

[69].  In the Standard Bank decision, Boda AJ considered the manner in which evidence in disputes of this nature should be evaluated and concluded with specific regard to the Labour Appeal Court decision in Gaga v Anglo Platinum Ltd and Others[25] that, albeit the Court in Gaga faced with a matter involving sexual harassment, that a similar approach must be taken in cases of workplace bullying. He expanded that commissioners must have regard to certain principles, in determining the true issue in a matter such as this one. The important principles are that:

 

[69.1].           A Commissioner must have regard to the totality of the evidence and not compartmentalise it into pieces, and then try break it down. Rather, the evidence adduced must be holistically considered;[26]

 

[69.2].           A Commissioner must not criticise the witnesses by looking at the evidence individualistically rather than cumulatively. A Commissioner must consider the extent to which each witness corroborated each other, and not focus on a failure by a witness to lodge a grievance or record a complaint. None of that would be the true enquiry.[27] As Boda AJ put it:

 

“The true enquiry was really: on what basis did nine people in a branch of a bank all come together and give evidence about their personal experience, and what would have motivated them to do that?”.[28]

 

[69.3].           A Commissioner must have regard to the general tenor and communality that arose from each of the witnesses’ own experience and independent experience of how they were treated by the perpetrator.[29] In that decision, Boda AJ held that:

 

“All of [the complainant witnesses] gave separate instances where they were treated in a similar fashion, being in a disrespectful, discourteous manner and in a manner which, in my view, would constitute bullying in the workplace”.[30]

 

[70].  The facts in Standard Bank are similar to the matter at hand, and therefore the decision is instructive. I will deal with the evidence in application of the principles set out in Standard Bank, in more detail below.

 

Knowledge of the Rule:

 

[71].     The allegations contained in the GEO report can be summarised as follows, that :-

 

[71.1].           he displayed a patriarchal management style that amounted to inequitable treatment between men and women, particularly but not exclusively in the geography division and which constitutes gendered bullying behaviour;[31]

[71.2].           his actions point to a dislike and disrespect for “strong” females and disapproval or discomfort if engaged and/or challenged by female staff;[32]

[71.3].           his action towards some of the complainants were expressed and described as “punitive”, “vindictive”, “aggressive”, “abusive” and “harassing”;[33]

[71.4].           he provided false, inaccurate and/or incomplete information to the complainants;

[71.5].           he caused or contributed towards a complete breakdown in trust not only between the complainants and him, but also within the school and between divisions;

[71.6].           he approached female staff members with supposed complaints about them and their work from other anonymous staff members, refusing to divulge the names of these other staff members and more critically failing to bring them together to constructively resolve issues;[34]

[71.7].           he displayed actions and behaviour which are demonstratively sexist in that inter alia male colleagues are defended, supported and protected while female staff are harassed and bullied;[35]

[71.8].           he failed and/or neglected to address gender discrimination and to tackle structural sexism within the school;[36]

[71.9].           he belittled, criticised, undermined and failed to acknowledge female members of staff (the complainants) and failed to support them and/or supported them in a disproportionately unfavourable manner as compared to the support extended by him to male members of staff;[37]

[71.10].         he made himself guilty of gender bullying on the following grounds:

[71.10.1]         a pattern of bullying behaviour emerged over an extended period of time;

[71.10.2].        he demonstrated repeated and incessant hurtful actions through his interactions with female staff;

[71.10.3].        his actions constitute deep levels of intimidation leading to complainants feeling less important and under-valued which in turn lead to the complainants expressing feelings that are not warranted in a healthy working environment;

[71.10.4]. his behaviour demonstrates an unsupportive, patriarchal management style;

[71.10.5].        he has made women feel unsafe, harassed, victimised and fearful in their work environment through his actions and omissions;

[71.10.6].        his actions have led to female staff facing mental and physical health issues;[38]

[71.10.7].        he made himself guilty of the following common allegations that surfaced:

“1. FA repeatedly yells at and bullies female staff members. These incidents include bullying during meetings and interactions.

2.  FA’s managerial style is generally aggressive but particularly so towards female staff members.

3.  FA does not sufficiently communicate with staff members and when he does, he often provides inaccurate or false information.

4.  FA fails to provide support and/or to ease workloads. Female staff members report the lack of support being more pronounced towards them.

5.  When FA is asked to clarify the roles of individuals within GAES, he is slow to respond and often does not resolve the matter.

6.  In instances where female staff members have spoken out against FA’s management style, he has treated them unfairly and subjected them to further bullying.

7.  FA is a punitive manager who specifically targets female staff members by criticising and condemning them for perceived failures. FA does not provide encouragement or support to female members of staff.

8.  FA’s targeted bullying of individuals has led to both physical and mental illness for female staff and has resulted in the resignation of at least one female colleague.

9.  FA fails to understand structural sexism and gender discrimination. When colleagues misinterpret issues related to gender equity and transformation, FA, through his action or inaction, reinforced these misinterpretations.

10.  FA’s behaviour is a pattern that covers an extended period of time.”[39]

 

[72].  Turning now to the first question before me, and that is whether or not FA was aware of the rule against gender-bullying and gender harassment.

 

[73].  It was confirmed by FA that he in his initial response to the allegations, dated 2 February 2018, that he was “very aware and cognizant” of subtle and overt sexism in the office place. He submitted that he is respectful of all female and male colleagues and as HOS, he is extremely conscious of the necessity to set high moral examples in matters concerning equality in the workplace. As a result, he endeavoured to respect the individual, irrespective of their gender or gender inclination and as a matter of principle he does not make any comments of a sexist nature and does not enact sexist behaviour.[40]

 

[74].  FA acknowledged during cross-examination that he was aware of all of the rules which he has alleged to have breached, and although he did not admit to conducting himself contrary to these rules, he acknowledged the importance of the rules and, quite pertinently, that any behaviours contrary to these rules would constitute grave misconduct.

 

[75].  FA explained that during his tenure at the University he was aware and conversant with the University’s transformation initiatives, which included both race and gender. This concession was well placed. With all that is done in South African in light of elimination of gender-based violence, be it physical or emotional or psychological, and the legislation in terms of workplace conduct aimed at preserving human dignity, a denial of such rule would indicate dishonesty on the part of the beholder.

 

[76].  In his testimony FA mentioned that he has at all material times, which included that before his employment with the University, held the view that it would be wrongful to treat people differently on account of gender as this would negatively affect the right to equality, to practice a profession and thereby earn a living, and to reach one’s full potential. As HOS, FA had a positive duty to install and maintain effective leadership that ensures that those under his authority is treated equally, are supported, their rights are respected and that he creates an inclusive environment for all to reach their full potential as well as that of the School. In this regard FA was adamant that everyone, not only women, should be given the opportunity for participation in all important issues, that sexism at the University is not tolerated and that he must lead by example on this score, and that it would be inaccurate to say women were not given a voice during his tenure at the School. Significantly, he acknowledged if the following examples have happened at school that it would wrongful and completely unacceptable if:

 

[76.1].           staff members being yelled at;

[76.2].           staff members being bullied;

 

[77].     Telling, however was the fact that despite these concessions, which were echoed in his written statement of 2 February 2018[41] and again in his second statement in May 2018[42], stood in contrast to the pre-arbitration minute signed by FA’s then attorneys, presumably on his instructions, wherein the following was placed in dispute: whether “at all material times … very aware and cognizant of subtle and overt sexism in the office place; and extremely conscious of the necessity to set high moral examples in matters concerning equality in the workplace.[43]” FA confirmed during cross-examination that he had considered the minute carefully before signature and further confirmed that the contents was true and correct. He, however, later on disputed that such was recorded as facts in dispute during the pre-arbitration conference and sought to distance himself from this portion of the pre-arbitration minute, when the inconsistency was pointed out to him. FA was clearly aware of the rule against bullying and harassment in the workplace, and the fact that he confirmed the correctness of the pre-arbitration minute during the arbitration, only later to distance himself from it, when he realized that this pointed to an inconsistency in his testimony, reflected negatively on his credibility. Likewise, when asked during cross-examination to explain the misrepresentation, no plausible explanation could be proffered by FA, except for a bare denial, stating that it was never agreed to be an issue in dispute during the pre-arbitration conference.

 

[78].  FA did not dislodge the evidence led during the Enquiry of Kiguwa, nor that of Langa during the arbitration, whereas it relates to the concept of what constitutes gender-bullying and gender harassment, but instead persisted at all times that he disagrees that he perpetrated any of these acts against anyone, especially female colleagues.

 

[79].  Equally important is the fact that FA acknowledged during cross-examination that the allegations raised against him in itself constitute serious misconduct, and if proved, would warrant dismissal. On FA’s own admission, albeit regarded as inconsistent, it is evident that he was aware of the workplace rule against gender harassment and gender-bullying.

 

Breach of the Rule

 

[80].  The dispute before me turns largely on the different perceptions and different experiences of the witnesses. On the one hand there is the version from the complainants and confirmed by C [....] 3, who shared a commonality of women being “othered” whilst on the other, FA and the likes of S [....] 6, R [....] , M [....] 6, W [....] , N [....] 1 S [....] 4, G [....] , A [....] , M [....] 3 and Marques, who seem to hold the view that FA was a good manager. Some, including FA, even shared the believe that the complainants are the ones who are “difficult” to work with.

 

[81].  The experiences described by the complainants when evaluated against the backdrop of the concept of gender-bullying and gender-harassment, as canvassed earlier in this award, shows noticeable resemblances.

 

[82].  Although a workplace may come with considerable levels of irritation, frustration and pressure, it remains the irrefutable duty of a manager to create an environment conducive for participation and growth. Employees have a right to human dignity and to be treated fairly in the workplace.

 

[83].  The testimony of FA’s erstwhile colleagues, B [....], S [....] 2 and S [....] 3, albeit not directly proving or disproving the allegations against FA, showed remarkable similarities to the experiences recounted by the complainants in this arbitration.

 

[84].  Applying the principles highlighted by the Court in the Standard Bank decision, to the facts before me, I am persuaded from a holistic point of view, that evidence of the University reveals a pattern of behaviour that points to a gendered-based style adopted by FA, and the gender-bullying approached taken during his tenure as HOS. It is evident that FA took issue with the complainants in relation to perceived actions on their part, that did not sit well with him. Boda AJ emphasised when looking at the evidence holistically the true question to be answered is really on what basis did all the witnesses that testified against FA come together to give evidence about their own personal experience, and what would have motivated them to do that?”. In addition, regard should be had to the general tenor and communality that arose from each of the witnesses’ own experience and independent experience of how they were treated by the perpetrator.

 

[85].  Considering the evidence holistically, there was nothing before me that would persuade me that the complainants that testified during the arbitration, and who gave direct evidence against FA, had any reason to misrepresent the facts before me, nor that they had corroborated with each other as part of a conspiracy against FA. There was simply no evidence that these witnesses, whose testimony corroborated each other in several aspects, had come together to fabricate the version against FA. Each one of them narrated their own-lived experience of what took place and their versions failed to change despite vigorous cross-examination.

 

[86].  According to the complaints received, these incidents showed the gender-biased and overall gendered manner in which FA treated the complainants. I will discuss in greater detail some of these incidence as I am of the opinion that they demonstrate the true management style of FA during his tenure at the University. Not all incidents would necessarily be discussed in detail, save to state that all were considered in arriving at this conclusion and all point to the same conclusion. The incidents that will be discussed are the following: B [....] 3 incident; the alleged blocking of the Transformation Committee, the anonymous dossier; the peace circle; FA’s alleged refusal to teach and supervise honours students; FA’s conduct during meetings; the teaching block incident; pay claims and information required by FA; conduct during meetings; alleged withholding of information and provision of incorrect information, promotions, application of leave, alleged gaslighting and the alleged “boys club”.

 

B [....] 3 incident:

 

[87].  B [....] 3 was an academic in the Archaeology Department and during June 2016 accompanied four (4) honours students on a field trip to do research.

 

[88].  Pursuant to the field trip, three (3) of the four (4) students approached FA and complained about a number of irregularities that took place on the field trip, including that B [....] 3 was in a relationship with one (1) student. This relationship was not declared as per the University policy. Subsequently, the three (3) students approached M [....] 1 and N [....] and explained that, even though they had reported the matter in July 2016, that they had not received any feedback from FA.

 

[89].  This prompted M [....] 1 and N [....] to arrange a meeting with FA. This meeting took place in September 2016.

 

[90].  In November 2016, the three (3) students addressed a letter to FA wherein they copied N [....] , M [....] 1 and S [....] . A communique to FA followed from N [....] , S [....] and M [....] 1 wherein they enquired as to how this matter would be dealt with.

 

[91].  M [....] 1 testified that in this meeting of September 2016 with FA, his body language and facial expressions, demonstrated that he was not open to discuss the issue. She went on to state that his body language was tense and that she could see fire spitting from his eyes when having the interactions with him. He asked them in a derogatory way not to interfere, by asking, what do you know about this, and where is your evidence? Her perception from the interaction with him was that he was trying to block the conversation with some kind of resentment and animosity towards them.

 

[92].  Similarly, N [....] testified that when she and M [....] 1 arrived at FA’s office, before they could even sit down or speak, he told them that what they want to discuss with him has got nothing to do with them and the Transformation Committee and that they should get out of his office. She explained that it was as if he was prepared to rebut what they were going to say before they even said anything. He was also talking over them and not willing to listen to them. N [....] , who was a complainant initially and now FA’s witness during these proceedings, stated that she experienced his behaviour in two ways: i). as a pushback on transformation; and ii). as a pushback on two women who were advising him on what to do. This created the impression with her that FA wanted to protect B [....] 3 and that “if you are a man, even if things are not part of the University’s code of conduct, you can get away with it. Whereas women are shouted down, put in your place and silenced”.

 

[93].  The evidence of M [....] 1 and N [....]  corroborated each other. It was also noted that the testimony of M [....] 1, insofar it relates to his aggression, was unchallenged under cross-examination.

 

[94].  FA was A [....] ant that he had done nothing wrong in relation to this incident. He explained that after receiving the complaint he escalated it to the Dean and Human Resources, and had received recommendation from the Dean that the matter be referred to the GEO, which he did. He stated that he merely asked them not to interfere as the issue was with the GEO.

 

[95].  Apart from a large part of the evidence of M [....] 1 not be challenged, the probabilities just do not favour FA’s version. I see nothing untoward in N [....] and M [....] 1 arranging a meeting with FA to discuss the complaint received. The complaint is clearly serious in nature as the three (3) students had waited for a substantial period of time for a response, and I have no hesitation in believing that it was expected of N [....] and M [....] 1 to act upon thereupon. Absent from the testimony of FA is that N [....] and M [....] 1 acted inappropriately when they approached him, hence the need for him to react in such a way. This begs the question why was FA so hostile and agitated with N [....] and M [....] 1, in their capacity as Head and Deputy Head of the Transformation Committee. It must either be that he was protecting B [....] 3 as N [....]  suspected, that he had some axe to grind with N [....] and M [....] 1, or both. What is evident is that FA’s actions on that day was not consistent with the inherent obligation by virtue of his position, namely to create harmony. To the contrary, the aftermath of the incident included an accusation from FA that it was S [....] who was creating the disharmony.

 

[96].  S [....] testified that she was copied into the follow up email from the students, and contended that the lack of action taken by FA caused her to believe that he was biased towards women and this was a concerted effort from FA to brush complaints that women have against men under the carpet. The lack of action taken by FA and the aggression displayed towards N [....] , M [....] 1 and later S [....] when he accused her of creating disharmony, is consistent with the version of S [....] .

 

[97].  FA then went on in his testimony to explain that the November 2016 letter was written on behalf of the students, and this was the cause of the disharmony and disruption in the School. He could however not explain how he knew this, but explained that he suspected as much as he saw N [....] , M [....] 1 and S [....] with the three (3) students in the foyer of the Geography Department. This was a new version preferred for the first time during his testimony and was not put to either S [....] , M [....] 1 or for that matter N [....] .

 

[98].  I would have expected of a manager such as FA as the HOS, who argued that he was at all times respectful of all female and male colleagues, extremely conscious of the necessity to set high moral examples in matters concerning equality in the workplace, endeavoured to respect the individual, irrespective of their gender or gender inclination and as a matter of principle he does not make any comments of a sexist nature and does not enact sexist behaviour, to have tested this assumption with the three of them before choosing to make these negative assumptions.

 

[99].  FA admitted that it was an unfair assumption of him to make at the time, and this clearly shows that he has a propensity to immediately arrive at negative assumptions when it comes to women, especially those women who seem to challenge him on issues.

 

[100].  S [....] ’s evidence in this regard was consistent with that of N [....] and M [....] 1. She testified that she made suggestions to FA in the November 2016 letter, but instead of being given an ear to be heard, she was just told to stay out of it. This evidence supports the notion that FA shuts down suggestions made by women.

 

[101].  Both S [....] and N [....] testified that from around this time, FA’s actions changed. S [....] stated that the punitive management style towards her intensified, and N [....]  explained that FA did not appreciate that they as the Chair and Deputy Chair of the Transformation Committee, according to him, overstepped their mandate, and henceforth she observed his attempts at reconstituting the Transformation Committee.

 

The alleged blocking of the Transformation Committee

 

[102].  The School took a vote and as a result thereof N [....]  was elected as the Chairperson of the Committee and M [....] 1 as the Deputy Chairperson. The remaining positions were also occupied by women by virtue of the elections.

 

[103].  M [....] 1 explained in a meeting with the Dean, FA pointed his fingers at her and N [....] and sought clarification as to whether the two of them would remain as Chair and Deputy Chair of the Committee. In the very meeting he went as far as to demand that the Committee be disbanded and to be constituted afresh. She went on to testify that she was ultimately removed her from the Committee in December 2016. S [....] confirmed this testimony of M [....] 1, stating that FA replaced M [....] 1 with a white male as the Deputy Chair of the Committee.

 

[104].  S [....] went on to state that FA took action and included a man to represent men, on receiving a concern from G [....] and S [....] 4. She took issue with the fact that a position was created for a man, for men to vote for a man and for male interest, whereas other elected people were there to represent all, not particularly a group such as inter alia women or race.

 

[105].  The actions of FA seem very suspicions within the context of members being elected to serve on the Committee, and despite such, to force a change by creating a position for a man simply because a complaint was received that the Committee was gendered-unbalanced. The timing of this change, being approximately a month after the November 2016 letter, and the manner in which FA sought support from the Dean, speaks volumes as to FA’s gender-based perceptions and or actions. The University argued that the removal of M [....] 1 from the Transformation Committee, was retribution on his part of the events happening and surrounding the B [....] 3 matter. Considering the sequence of events and circumstances alluded to above, I am persuaded to agree with the University. FA on the other hand submitted that he dealt with all complaints fairly, timeously, appropriately and that none of the solutions reached are planned to protect anyone. In light of the above, I am disinclined to agree with FA that all solutions reached are planned to protect anyone, as he was clearly motivated to protect G [....] and S [....] 4 and by extension his own interest. It is evident that he was unimpressed with the fact that he was challenged by N [....] , M [....] 1 and S [....] , and this sparked the interest in the gender composition of the Transformation Committee. The fact that a concern was raised by G [....] and S [....] 4 at the same time as the B [....] 3 enquiry, speaks to the relationship between FA, G [....] and S [....] 4 and will be discussed in more detail under the Boy’s Club concept.

 

The anonymous dossier

 

[106].  During or about May 2017, an anonymous complaint was received by the Vice-Chancellor’s Office. The anonymous dossier was purportedly authored by concerned former-and-current staff as well as students, and contained allegations of, amongst others, managerial delinquency in the School, some of which preceded FA’s tenure whilst others fell within the period that FA was the HOS. This dossier caused considerable unhappiness and dissatisfaction in the School as various people were named in therein, but no one knew exactly who authored the dossier.

 

[107].  FA initially stated in the proceedings before me that he did not know who was behind the anonymous dossier. He did, however, explain that he suspected the anonymous dossier and the allegations proffered against him were linked. Interesting though, in the response from FA provided pursuant to the Enquiry, he stated that N [....] , S [....] and M [....] 1 got involved in the B [....] 3 incident, that they have ulterior motives and that it is common believe that they are behind all the School cases investigated by the GEO. He continued by stating that there is a strong believe that these complainants are linked to or behind the anonymous dossier.[44] This showed clear deception in his version and that he tailored his evidence as time went on.

 

[108].  The change in his version did, however, not end there. When asked under cross-examination who in the School held the believe that these three (3) complainants were behind the anonymous dossier, he gave three (3) different versions: i). that it was all geographers, except for the complainants and all archaeologist; ii). two (2) geographers, being G [....] and A [....] and one (1) archaeologist being S [....] 6; iii). then he changed to state that there are more than the three (3) people mentioned (G [....] , A [....] and S [....] 6), but did not want to mention who they were.

 

[109].  Further examples of the changes in FA’s version will be discussed below, safe to state that this seriously impacted on the credibility of his testimony. The inconsistencies noted, are not in relation to peripheral issues, but relates to the main issues in dispute and furthermore on FA’s own admission, these changes do not reflect well on his credibility as a witness.

 

Peace circle

 

[110].  Towards the end of 2017, the Transformation Committee, arranged for a Peace Circle since there was disharmony in the School. Initially FA had no objection in the appointment of an external facilitator, and all staff members were invited to attend.

 

[111].  FA conceded that the initiative was “an excellent idea” and that he “supported it” but explained that he did not attend as he was of the belief that attendance was engineered to ensure that only certain people attended. He went on to state that the Peace Circle was purposively scheduled on a date that he was engaged elsewhere, that the venue was inappropriately sized for everyone to attend, and that it was used to lobby and motivate grievances against him. He could, however, not explain what the commitment was that he had on that day, despite being given the opportunity to do so. He further conceded that the venue had ample capacity to accommodate everyone, and that he was not aware of anyone who was disallowed attendance.

 

[112].  Likewise, he indicated that others in the like of, amongst others, G [....] and S [....] 4 were also of the believe that the Peace Circle was used to drive a personal agenda, but conceded that he did not interrogate why they held this view. Surprisingly though, neither G [....] nor S [....] 4 corroborated his version during the arbitration.

 

[113].  His version and theory in this regard is found to be highly implausible and speculative, and was ultimately disproved during the arbitration. It was argued by the University that this was a deliberate attempt on behalf of FA to set the Transformation Committee and N [....] and M [....] 1 up for failure. They went on to reason that FA, instead of supporting them, disempowered them and quashed their initiatives, which can only be described as bullying. I am inclined, having regard to the cumulative effect of his actions and the impact that had on, specifically N [....] and M [....] 1, to accept this submission from the University. The most probable inference to be drawn from FA’s conduct is that he wanted to assert control over the complainants and that he was acting out of self-interest by protecting himself and what appears to be the other male colleagues in the School. FA’s own version during these proceedings appears to be the reason for the obstruction of the Peace Circle, in that he contended that N [....] , M [....] 1 and S [....] sought to use the Peace Circle as a means to air grievances against the senior male members of staff.

 

Statement that FA did not teach and supervise honours students

 

[114].  In one particular minute of the Geography meeting, it was recorded that FA refused to teach and supervise honours students. FA challenged this at the next meeting, expressing his annoyance with the gross misrepresentation of his statement. His annoyance stemmed from the believe that the statement may portray him in a negative light. He went on to state that as HOS it was not expected of him to teach. I pause to record his statement verbatim[45]:

 

“My refusal to lie or conceal information and my challenge to false statements led to the complainant (and others) feeling aggrieved as things did not go the way they wished them to go.”

 

[115].  FA stated that he drew the inference that S [....] made the statement because, prior to the meeting, she had, in her capacity as honours coordinator, allocated a student to him to supervise. He, however, indicated that he was unable to supervise the student in the area, which according to him was out of his area of expertise.

 

[116].  During the arbitration he conceded under cross-examination that it could not have been S [....] , as she may have relayed to someone else that he was unable to teach, and such person may have made the statement. He further conceded that A [....] was also in involved in the Masters’ coordination, and he could have had a discussion on FA’s inability to teach, and then have made the statement.

 

[117].  A further concession made by FA was that it could not have been M [....] 1 or S [....] who had made the statement in the meeting, and that it was possible that they may have spoken to others, including men within the School, who may have mentioned it in the meeting and may have made the statement. He accepted that even as we sat in the arbitration, he did not know for a fact who made the statement.

 

[118].  Despite making these concessions, FA persisted in stating that M [....] 1 and S [....] sought to portray him in a negative light by including this in the minute. It is evident that these assumptions of his, may I say without any foundation for same, clearly shows his bias towards the complainants and thus I have no hesitation to find contributed to the manner in which FA treated S [....] and M [....] 1 in particular.

 

[119].  The University argued, and I have not disinclination to accept this contention, demonstrates that he immediately attributes any negative statements made about him to M [....] 1 and or S [....] , which validates the notion that he pre-judged them and operated from a place of suspicion and predisposition against them. The course of his annoyance and frustration could have been attributed to men in the School, as he conceded during the arbitration, however he chose to put the blame on the complainants without further interrogation or consideration.

 

The teaching block incident

 

[120].  Academic research and publishing form a critical part of any academic’s duties. Having an academic publish, is not only for their own benefit, but also that of the School and University at large. In order to publish, academics need time off, and therefore at least one free block of teaching per year is afforded for this purpose. FA is responsible for the overseeing and distribution of the teaching load in order to ensure that each academic is afforded that opportunity to attend to publishing.

 

[121].  It was the testimony of S [....] that during 2016, neither she nor M [....] 1 had a free teaching block to do reach and to publish. She went on to explain that K [....] had two free teaching blocks and she accordingly made a suggestion to re-arrange the teaching to afford everyone at least one free block, and this suggestion entailed that K [....] would still be left with two free teaching blocks, albeit the free blocks would be in the first and second terms, as opposed to the second and third[46].

 

[122].  FA’s response to this was that S [....] ’s suggestion would have resulted in K [....] having not a single free block. When asked how he arrived at this conclusion and whether he verified this information, he responded that he spoke to K [....] and that K [....] was the Teaching and Learning Coordinator, effectively believing everything he said without further interrogation.

 

[123].  It is common cause that FA was not in the meeting where the proposal was discussed, yet he was eager to accuse S [....] of being aggressive in the meeting and trying to force her views, and that was the reason why K [....] did not want to change. He also criticised S [....] ’s email on the same ground, but eventually after being cross-questioned on his accusation, conceded that S [....] ’s email was reasonable. I have considered the email and am of the opinion that the concession from FA in this regard was well placed.

 

[124].  FA showed clear bias in the manner he handled the teaching block incident. Not only did he prefer K [....] ’s version over that of S [....] , with no further interrogation, but he also defended K [....] in arbitration proceedings, saying that K [....] had valid reasons for refusing to accommodate S [....] . He also responded to a question that K [....] was being inflexible, and that it would have been only fair and decent of K [....] , if he had accommodated the request, that “[I]f K [....] ’s circumstances allow for it, yes why not[47]”

 

[125].  This is not the first time that this pattern, of believing the men in the School as opposed to the women, has emerged. I have no hesitation to accept the version of S [....] over that of FA. The suggestion that she made demonstrates that Kight would still have had two (2) free blocks off, albeit not back-to-back. This in my view was not an unreasonable suggestion, particularly in light of the concessions made by FA during cross-examination to the effect that where academics are afforded free time, they will be better placed to publish.

 

[126].  FA’s version, that K [....] had informed him that it was S [....] was the aggressor and that she was the one that bullied him, is held to highly improbable. On his version, I would have to accept that a senior professor of K [....] ’s standing, was bullied by a junior probationary employee in a meeting in full sight of everyone present. This version is highly unlikely. When questioned about the discussion he had with K [....] in this regard, he stated that he was not gossiping when he spoke to K [....] as K [....] was stating the facts. Not only does this statement from FA also show his proneness to prefer the word of men in the School over that of women, but he went on to state that men do not engage in gossip, and women do.

 

[127].  If accepted that K [....] indeed made this statement, then I would have expected of FA to have discussed it with S [....] and to have sought her response thereto, but he failed to do so. Likewise, he was hastened to record in his written submission that “many colleagues were of the view that M [....] 2 was also aggressive at the said meeting (that I did not attend)[48]”, however he conceded during the arbitration that he did not speak to anyone apart from K [....] about what transpired in the meeting.

 

[128].  In his written submissions, FA went on to state that:

 

“M [....] 2 ’s suggestions would have meant that J [....] would have no free block for research and she would have two free blocks. J [....] , rightly, refused this suggestion.”.[49]

 

[129].  He states this as a fact, knowingly that he only spoke to K [....] on the issue. With this statement, his intention is clearly demonstrated, and that is to paint S [....] in a bad light, showing that she is selfish. The contrary was in fact true, FA chose to believe K [....] and without further investigation decided that she was the one in the wrong. His actions clearly showed that he favoured K [....] and was not interested in the consequence it had on S [....] and M [....] 1. This whilst he acknowledged that it is a requirement for an academic to have free time to publish. The University presented credible evidence in this regard, whilst inconsistencies were noted in FA’s version. To demonstrate this, FA was asked on what basis he concluded that his statement was factually correct, he responded that K [....] had told him this after the meeting, however he subsequently changed his version that he did not ask K [....] what the outcome of S [....] ’s proposal would be. A further example is when he was confronted with the fact that M [....] 1 and S [....] clearly did not have a free block to do research and to publish, he made a deliberate attempt to downplay the unfairness and elucidated that their complaint was not a legitimate complaint because they had free time to do research in spite of not having a free teaching block.

 

[130].  His resistance to acknowledge the unfairness and the truth, negatively affected his believability and points to a willingness to tailor his evidence despite overwhelming evidence to show he was wrong. Evenly surprising is the fact that instead of making room for the possibility that K [....] might be the aggressor and bully, FA refused to investigate and offer the assistance to S [....] and M [....] 1 that they needed. This shows remarkable resemblance to the examples made by Langa that constitutes gender bullying.

 

Pay claims and information required by FA

 

[131].  M [....] 1 alluded to the practice when claims are submitted from your own research money (rink funds), and explained that the academic would be required to itemise their expenses, state where they travelled to and attach the receipts. Initially this was what was expected when she claimed for reimbursements. However, with her trip to Venetia in 2015, she was requested by FA to substantiate her claims in more details.

 

[132].  She went on to state that she enquired from amongst, Hauffman, who was with her on the trip, A [....] and S [....] 4, and they all told her that they were not required to provide an explanation as to how she spent her research funding, as she was. Her testimony during the Enquiry and during the arbitration was as follows:

 

“Ms M [....] 1: I think at the time I reaslised that it was a pattern to make me feel insecure and to basically create problems for me, to the point that I would have, I [indistinct] to keep track of everything I did and to have a backup, justification for everything I did. So I knew that every time, often times when my students would [indistinct] my tutors also [indistinct] example would go in for claims for hours that they did for me, the claim was likely to be rejected.

 

And so I would tell the tutors, just be careful to write it in a particular manner so that it goes in. I learned that I had to prepare for anything to happen.”

 

[133].  There was no contrary version that was put to M [....] 1 during questions asked to her under cross-examination. This version of M [....] 1 according was not disturbed.

 

[134].  M [....] 1 shared the view that the additional requirements when it came to her claims, only emerged after the Animation incident, which was in May 2015. The University argued that by requiring this level of detail from M [....] 1, which he did not require of any other colleague, was his way of exerting his power and authority over her just because he could, and as a means of bullying. On its own, and taking in isolation, this complaint may not mean much, and may not necessarily be persuasive to prove gender bullying, however considering the evidence before me cumulatively, the impact and the intention of FA became evident. It is this indirect or covert actions directed at M [....] 1 (and the other complainants) that cumulatively speaks of a pattern of bullying behavior displayed by FA which was most definitely aimed at harming the complainants, but it was deployed in such manner that the intent can be denied at a later stage.

 

Conduct during meetings:

 

[135].  M [....] 1, WP, and S [....] testified in one way or the other about the conduct of FA during meetings, which amounts to a general disparate treatment of women compared to men. M [....] 1 pointed out that this disparate treatment was the manifestation of FA’s patriarchal management style. That women would be described by FA as “difficult” when they are strong and assertive, whilst men would be pardoned by FA who would state that it is “just their personality.” WP testified to the fact that she witnessed how D [....] was put down by men and that FA did not take kindly to being challenged or questioned by women. She alluded to how FA would get angry and raise his voice towards women, whilst with men he would be understanding. F [....] and C [....] 3 pointed out that FA would become visibly angry, raise his voice and slam his fists on the table. S [....] recounted that FA was dismissive and belittling of her in meetings and at times shouted at her in public and private meetings, whilst G [....] and K [....] was allowed to do what they wanted and was given opportunity to be heard. S [....] continued by stating that G [....] was allowed to be rude, to make defamatory statements toward certain disciplines and people and no action was taken against him. Similarly, S [....] confirmed that FA would protect K [....] .

 

[136].  The testimonies of S [....] and M [....] 1 were aligned in relation to the disparate treatment from FA when it comes to men compared to women.

 

[137].  F [....] confirmed the testimony of the other complaints that men in the School could be grumpy and loud and that K [....] would even walk out of the meetings.

 

[138].  FA affirmed the testimony that K [....] could at times be abrupt, however he explained this away by stating that K [....] is straight forward and say it as it is, and this people did not like. Despite this the evidence shows that FA did not treat K [....] the same as what he for example did with M [....] 1. With M [....] 1, FA chose to confront her about her behaviour, and even her personality, in anticipation that it would change, however with K [....] room was made to accommodate his personality. The different treatment received from FA was clearly along gendered lines, especially those female employees that he viewed that he should assert his power over them.

 

[139].  FA made an attempt to explain away this differential treatment, by stating that he did not receive any complaint about K [....] ’s behaviour, hence he did not address it. This explanation stands in stark contrast to the fact that he had, on previous occasions, advised others, including S [....] , that this is just the way he (K [....] ) is. Besides, I don’t see how a person who have faced the consequences of having your personality being critisised and being labelled as difficult, would lodge a complaint against K [....] . More so, it would be unwise to complain, knowing that it was an open secret that he enjoyed the protection from FA. Under the circumstances, the explanation that he provided that he simply approached M [....] 1 for advice, simply does not sit comfortably with the fact that he offered no such advice to K [....] .

 

[140].  Witnesses in the like of WP, M [....] and C [....] 3 testified to either observing, or receiving complaints, where FA’s aggressive manner of dealing with female employees, reduced them to tears.

 

[141].  C [....] pointed out that FA did not take kindly when challenged. She used the example that FA would shout at her when she challenged him, but when she shouted back at him, he viewed that as a problem.

 

[142].  The evidence points to the fact that FA generally treated women poorly in meetings. The testimony of S [....] 3 confirms a pattern in this regard, as he previously took up this issue with FA, to which FA agreed with him that he probably should get anger management support. Such behaviour from a manager is simply unacceptable and shows the bullying strategies deployed by FA in the course of his headship against the complainants.

 

[143].  Having regard to the testimony of M [....] 1, when she stated that FA had a patriarchal management style, this observation is supported by the fact that FA agreed with G [....] when he referred to D [....] as being aggressive and himself as being vocal.

 

[144].  FA on the other hand attempted to persuade me that the witnesses of the University conspired against him, that they colluded with one another to raise these allegations against him as a collective. This argument cannot be sustained due to, firstly the level of detail and emotion expressed by the Complainant, and, secondly, because FA’s own witnesses, mostly corroborated the evidence of the complainants. These witnesses are, M [....] 6, S [....] 6, N [....] , and M [....] 7. I am disinclined to accept that a conspiracy would have survived the vigorous cross-examination.

 

Alleged withholding of information and provision of incorrect information

 

[145].  The evidence in this regard from the University witnesses, was that FA would often withhold information from them or at times provide incorrect information, which left them anxious and in panic.

 

[146].  M [....] 1 testified on numerous incidents where FA had made accusations against her, and that she would often be summoned to meetings with FA for which she was not provided an agenda.[50] Her evidence was that this caused her panic, to the extent that she would be unable to sleep the night before the meeting.[51] She testified in the arbitration that these meetings which would often be called for on a Friday afternoon for early the next week, which left her wondering the whole weekend what the meeting was about because, in her experience, they were always negative. Her testimony in the Enquiry, which was repeated during the arbitration, was the following:

 

“Ms M [....] 1:          Yes, I actually, I am not even comfortable to be in the same building with Professor [FA]. I, because our relationship became so difficult. I felt increasing feelings of uncomforted through the years to the point that [indistinct] whenever I will be called in for a meeting, like I said in my previous testimonies, meetings without an agenda was just, you know, be in a state of panic and not even be able to sleep at night if the meeting is tomorrow.

 

I just, do not feel comfortable in his presence at all. I think it is a mix like of, I do not know how to explain it, I am a very strong person, everybody knows, but I would feel intimidated, and you know very little when I am in the presence of Prof. [FA], whether it is in out personal interactions or with other people.”

 

[147].  She alluded to a specific meeting that took place during September 2014, where FA summoned her and A [....] to a meeting. She requested what the meeting was about, but was not given details nor an agenda. In response to the question posed to him during cross-examination, what the meeting was about, FA replied that the meeting was about a student complaint. He went on to explain that he did not tell M [....] 1 what the meeting would be about, because he did not have to, or words to that effect.

 

[148].  I find it significant, that M [....] 1 asked what the meeting was about, whilst A [....] did not, and the reason appears to be found in M [....] 1’s testimony quoted above, where she identified a pattern in FA’s behaviour towards her that made her feel anxious and insecure. Clearly, this was not the case with A [....] , but only with M [....] 1. In fact, A [....] testified during the proceedings, that he felt that FA was supportive of him. The fact that FA testified in these proceedings, that he did not have to provide M [....] 1 with information is evident of the blatant disregard he had for M [....] 1 and confirms his bullying behaviour towards her. It also points to his willingness to tailor his evidence, as he stated that opposite in his written submissions in response to this complaint of M [....] 1, where he wrote the following:

 

“The complainant had been called into meetings (with agendas) on numerous serious complaints or valid accusations from students.[52]”

 

[149].  Similar evidence was given by both S [....] and B [....] , whereas B [....]  specified that this was fear provoking.

 

[150].  Then there is the incident whereby FA removed the Faculty Science Board portfolio from M [....] 1 and reallocated it to F [....]. FA argued that, inter alia, consultation, in the form of an email that he sent with the proposed administrative portfolio in which he required comments before implementation, took place. At this time, he was however aware of the reservations expressed by C [....] 3 because of the heavy workload of F [....], and the fact that C [....] 3 told him (FA) that he should leave the portfolio with M [....] 1 to allow him the opportunity to first discuss the reallocation with M [....] 1 and F [....].

 

[151].  FA sought to rely on a new version during the arbitration, stating that C [....] 3 never reverted to him timeously, however later he changed this version, conceding there was no timeline for C [....] 3 to revert back to him. M [....] 1 testified that she responded to the email from FA and had told him therein that she wanted to continue with the portfolio. This email was sent approximately seven (7) hours after the email from FA, wherein he allowed for responses within a four (4) hour period. I am inclined to accept as argued by the University that the conduct of FA in this regard was unfair, in light of, amongst others, the unreasonable period given to respond, the absence of any valid explanation for doing so[53], seeing that M [....] 1 expressed the request to continue with the portfolio and F [....] already had a heavy workload.

 

[152].  FA did not impress in the testimony and explanations provided; it was clear that his version had changed numerous times during cross-examination and his motive for the reallocation was not that untainted, as he wanted us to believe. In addition, FA failed to make reasonable concessions. The proposition was put to him that this portfolio contributes to the incumbent’s academic citizenship, and if taken from M [....] 1, that it would detract from her academic citizenship, but he refused to make the concession. Such concession would have been a reasonable one to make, particularly as he was unable to explain what the other portfolio was that was allocated to her in turn. FA, however, realised that by making such concession, the consequences of this reallocation for M [....] 1, was dire.

 

[153].  The consequence of his actions was explained by M [....] 1 when she testified that this decision of FA made her feel diminished, and it negatively impacted on her prospects for promotion.

 

[154].  As a desperate attempt to explain the reallocation, he sought to rely on a rule that requires the change in portfolios every year, however he could not point to this rule. This version stands in stark contrast to the testimony of C [....] 3, who expressed his concern with the reallocation, as well as his own testimony when he earlier testified that someone could sit in a portfolio for years. An example is K [....] , who have held the portfolio of Teaching and Learning for over four (4) years. FA could also not substantiate M [....] 1’s alleged poor performance as he confirmed that the email, he sent to her was the honest and complete reason for the reallocation. From a reading of the email, no mention is made of her alleged poor performance[54].

 

[155].  F [....] testified that she approached FA regarding the re-allocation as her understanding from the discussion with C [....] 3 was that that M [....] 1 wanted the portfolio. She explained that FA responded by saying that the portfolio will not be given back to M [....] 1, as M [....] 1 did not want the portfolio. This was denied by FA.

 

[156].  F [....] went on to state that she then approached M [....] 1 and asked M [....] 1 directly whether she wanted this portfolio, to which she responded that she did.

 

[157].  FA offered no more than a bare denial in relation to what he said to F [....] when she approached him in relation to the re-allocation. I am disinclined to accept this denial, as the independent testimonies of F [....] and M [....] 1 were aligned. More so, no inconsistencies could be found in their testimonies in this regard, whilst as was shown above, the contrary is true from FA’s testimony.

 

[158].  Pursuant to the discussion F [....] had with FA and M [....] 1, she approached FA for a second time and this time round, he related M [....] 1’s poor performance to her. FA admitted that it was inappropriate for him to have made these comments about M [....] 1’s alleged poor performance to F [....]. The effect of him discussing this with F [....] however was that he had placed F [....] in an unfair and compromising position, whilst putting M [....] 1 in a weakened position by withholding this information from her. This demonstrates that he was pitting F [....] and M [....] 1 against each other.

 

Promotions

 

[159].  FA conceded that it forms part of the HOS’ responsibilities and duties to ensure career development and promotion of staff.[55] In addition, that this entails that he must engage with staff members, assess promotion criteria, and assess where they stand and provide advice.

 

[160].  This is particularly so because there are several areas in which an academic staff member must achieve to be promoted. It is common cause that for academic employee to be promoted they must, among other things, achieve well in academic citizenship duties, lecturing / teaching, supervision, graduating students and research and publications.

 

[161].  The Staffing and Promotions Committee is tasked to consider promotion applications that serve before it, which may either be motivated and supported by the HOS, or not, in which event a staff member may apply for promotion without approaching the HOS.

 

[162].  It was FA’s contention that he had always provided the necessary support and encouragement, irrespective whether it was a male or female staff member. He also contended that it was neither here nor there for the application for promotion to be supported by the HOS. This assertion was supported by S [....] 4, but disputed by the University.

 

[163].  The evidence from C [....] 3, and supported by the Complainants, was that it was extremely important and helpful if the application for promotion is supported by the HOS. In the event that an application for promotion is not supported, that it was unlikely to be successful. C [....] 3 explained that it casts aspersions on the application if not supported by the HOS.

 

[164].  Not only was the complainants and C [....] 3 found to be credible witnesses elsewhere in this award, but the probabilities favour this version. If the HOS, who was responsible for the support provided to the applicant for promotion, and who was involved in the performance of that application on a daily basis, did not support the application, that would raise the question, why the HOS would have reservations about this person. Surely, as manager, who knows that person and his / her performance better than anyone else on the Committee, did not support the application, then that would send a strong message to the Committee members. In addition, the HOS is required, as part of the application for promotion, to provide a letter of motivation to the Committee. FA denied the notion that the purpose of this letter is to persuade the Committee of the merit in the application, but provided no alternative explanation as to the need for such letter. The question that arises from FA’s reasoning is then, if not intended to persuade, what is the purpose of this letter.

 

[165].  S [....] 4, on the other hand, clearly displayed his bias in favour of FA, and for that reason his testimony was treated with circumspection, as stated elsewhere in the award.

 

[166].  It was the case of the University that men were promoted, and by extension, supported and encouraged by FA, but that was not the case with all the female staff. FA disputed this notion, however his own witness, in the like of S [....] 6, pointed to a common perception, that it is easier to get promoted in the School, if you are male[56].

 

[167].  Every single complainant referred to the support, or lack thereof, that they received from FA, and in some instances even described how FA blocked their career progression.

 

M [....] 1: Lack of support received:

 

[168].  It is common cause that the relationship between FA and M [....] 1 soured over the period 2016 to 2017. Before, he used to joke, and speak Arabic with M [....] 1, but that changed during this period onwards. M [....] 1 recognised the changes in incidents such as the reallocation of portfolios. She also testified that it made her question why FA never sought to collaborate and publish with her, since they performed work in the same disciplinary area[57]. FA initially stated the reason being that that his area of work was different to hers, however later during cross-examination, he stated that she is a difficult person towards me, and that he found it difficult to work with her. It is evident in the manner that he referred to M [....] 1, and I will discuss this in greater detail later in this award, that he did not regard M [....] 1 in a positive way.

 

[169].  It is nonetheless telling, comparing the support and encouragement he gave to someone in the like of Simatelle, as opposed to that he gave to M [....] 1. S [....] 4 initially conceded during the Enquiry that FA supported both his promotions from lecturer to senior lecturer, and senior lecturer to associate professor[58]. This version changed during the arbitration, where he stated that FA only supported his second promotion and that the previous HOS supported his first application. Instead of providing a reasonable explanation for the change, or alternatively a concession that he may have been wrong, S [....] 4 insisted that FA only supported the second application. This negatively impacted on his credibility and believability.

 

[170].  Not only was S [....] 4 encouraged to apply for promotion, when he himself did not think that he was ready, but he also felt comfortable to just walk into FA’s office for discussions, he was given paid time off to edit a book and introduced him to a mentor.

 

[171].  M [....] 1 was however denied time off to be seconded to the GCRO, which is focused on research and that would have assisted her in publications and increased her research output, and the book that she wrote was downplayed by FA in the discussion regarding promotion. M [....] 1 testified in the absence of support from FA, she did not apply for promotion. The testimony of C [....] 3 in this regard is that he was present when M [....] 1’s application for promotion served before the Committee and that the application was successful. This occurred in close proximity to when FA left. M [....] 1’s evidence in this regard is that nothing had changed from her CV from when FA discouraged her to apply, and when it served before the Committee.

 

[172].  Turning to the request from M [....] 1 to be seconded to the GCRO, the inference drawn from the evidence before me, is that FA did not act in a supportive manner towards this secondment. This secondment could have been beneficial to the School in that M [....] 1 could advance her research output, at no expense to the School. However, he took little, to no steps to establish whether such secondment could materialize. Instead, his perception of M [....] 1 was negative and this is evident from his testimony when he said that Moore (Director of GCRO) wanted M [....] 1 simply because they were desperate to get anyone in (or words to that effect). This negative perception of M [....] 1, is further evident in the hurdles created by FA to oppose the secondment. Probably the best justification that FA could use, was to state that there was no one to replace M [....] 1 in her position in the School, however he conceded under cross-examination that he did not take any steps to find a replacement for M [....] 1. He proffered the explanation that if the GCRO could not find anyone, that advertising the post, would not have made a difference. In this regard, Marques testified that he would have, at the very least, expected FA to have advertised the position. I do not see the nexus in FA’s argument in this regard, as there may very well have been a person who responded to the University advertisement that did not respond to the GCRO advertisement.

 

[173].  The University argued that the response from FA, when confronted with the frustration shown by M [....] 1 in her email to Moore, and where she stated that very little assurance and support was received from FA, to the effect that the frustration was merely with the fact that they did not agree. I am inclined to agree with the University in this regard. M [....] 1, who authored the email is best placed to explain, which she did, what caused her the frustration, however FA denies her lived experience and change it to what is suitable to him. I have no hesitation in accepting that this is an example of gaslighting.

 

[174].  It is further evident that FA was less than F [....] 1 when he stated in the Enquiry that no agreement could be reached on the secondment “…as no candidate with a PhD was available to step in to teach the higher classes.” Given the concessions made during this arbitration, that was clearly incorrect information that was provided by FA. Noteworthy, is that FA did not stop there, but he actually turned the blame on M [....] 1 when he says:

 

“The secondment was eventually not supported leading to the complainant being aggrieved and feeling targeted as things did not go the way she had wanted it.[59]

 

[175].  M [....] 1 further testified to various other incidents where FA was vindictive and unsupportive of her that had a detrimental effect on her career progression, such as, blocking her supervision, intervening with C [....] 4 O [....] , a Master’s student who was likely to pass and had applied to the School to do a PhD under M [....] 1’s supervision, but FA stated that he did not have a masters and therefore does not meet the minimum requirements, which ultimately resulted in O [....]  going to another institution, and downplaying M [....] 1’s book. In all three instances, the evidence of M [....] 1 is accepted as she was a credible witness and did not change her version. It is evident from these instances that FA deliberately blocked M [....] 1 in every instance that presented itself. He showed deception in the manner he answered questions and this pointed to the undeniable fact that he thought ill of M [....] 1. His conduct towards her was unfair and gendered, and he purposefully attempted to discredit her and cast her in a poor light by manipulating the information at hand.

 

F [....]: blocking career progression

 

[176].  F [....] was appointed as lecturer on 1 February 2017 and placed on a three-year probationary period. It is common cause that F [....] aspired to obtain early confirmation and that she was a prolific publisher. In order to obtain early confirmation, a continuous process of support is essential from the HOS.

 

[177].  F [....] testified that FA, instead of providing the necessary support to obtain early confirmation, made attempts to stifle her research in that he wanted her to focus on areas other that those that she had the potential to publish significantly. FA, however denied this under cross-examination, which stands in stark contrast to the questions he posed to F [....] in cross-examination during the Enquiry. The questions posed to F [....] showed that he indeed, in a meeting with F [....] and C [....] 3, instructed F [....] to narrow that research even further and “start closing out those projects..[60]” This very notion, or something to this effect was also put to F [....] during cross-examination in the arbitration.

 

[178].  FA went on during his evidence to if F [....] had read her own email, dated 10 February 2017[61], she would have seen that she did not have a real problem and would not have made any of the claims she did. The University’s contention in this regard, that this amounts to gaslighting, and another attempt to bully F [....], is on point.

 

[179].  The fact that FA attempted to stifle F [....]’s research, and had told her that there was a saturation of climate researchers in the School, all of whom he conceded were men (G [....] , A [....] , K [....] and FA), shows his gendered approach by protecting the interest of the men in the School.

 

[180].  The uncontested evidence of F [....] further was, that FA had told her, when she was nominated as a finalist for an award on substantial tourism research, to let that research in tourism fizzle out and that she should get better hobbies, when she told him that she would even do that research over weekends. He made an unconvincing attempt under cross-examination to suggest he did not say that, by stating that he could not remember telling her that, however this version was inconstant with the version put to F [....] under cross-examination, to the effect that he was saying that in a jokingly manner.

 

[181].  Likewise, FA showed dissimilar support to F [....] as what he did to the likes of S [....] 4, when he during a one-on-one during the course of 2017, during an update on activities undertaken, told her that it was a good start and she should continue writing. It is common cause that at the time she had at least six (6) publications in the seven (7) months of her employment.

 

S [....] : Promotion

 

[182].  S [....] was appointed in 2015 and she testified that because her working relationship with FA soured, the positional power that FA had over her, induced anxiety. The attempt by FA to suggest that such was, one, not how she felt, and two, incorrect that he had positional power, was misplaced. FA is not in a position to disagree with how S [....] felt, he might disagree with the reasons provided why she felt this way, but could not disagree that she felt anxious. His reasoning that she was not vulnerable as it was the Faculty that decide what to do with a probationary employee who was not performing and not him, is also highly unconvincing in light of the fact that he conceded that at the end of the probationary period, he would be required to either confirm / extent probation or recommend non-confirmation.

 

[183].  S [....] alluded to various incidents that occurred by the end of 2016, between her and FA, that was unpleasant for her. This testimony remained unchallenged. She went on to explain that by the time that she had to submit her probationary report, she had taken time off from work because of the pressure under which FA placed her, that she was booked off from work on advice from her psychiatrist because of FA’s actions, and the fact that he told her in relation to the Sydwell incident, that she should not pretend to be consultative.

 

[184].  Upon receipt of the interim probationary report from S [....] , FA suggested to S [....] that she removes the support that she requires from the report as it is an internal School matter. This suggestion from FA seems counterproductive with the very purpose for including such question in the first place. The effect however of his interference, was that he was exercising power over her in silencing the need that she identified in order to set her up for confirmation.

 

[185].  FA accepted during cross-examination, that interference in a probationary report from a line manager, causing the employee to change the report to that which they don’t agree with, would constitute a form of bullying. That is exactly what occurred, as S [....] changed her report and in the final report recorded that FA was supportive in terms of the time and facilities available to support her scholarly activities, which is neither accurate, nor how she genuinely felt.[62]

 

[186].  FA thereafter completed the section required by the HOS, to indicate any assistance that could be offered by the University to the employee, and stated that it was not applicable.[63] Having regard to the testimony of S [....] , that she in fact required assistance, shows that FA was seeking to depict himself in a good light, thereby silencing S [....] and that he being dishonest.

 

[187].  In comparing the treatment FA gave to S [....] 4 as opposed to that he gave to S [....] , it is striking that he accused S [....] of demanding special treatment when she wanted time off to work from home on her publications, whilst that is exactly what he did for S [....] 4. A change in FA’s version was noted when confronted with this differential treatment. Initially he alleged that it was contrary to the rules and would set a bad precedent if he was to give S [....] time off to go on writing retreats, however after being confronted in cross-examination, he changed that version to now state that S [....] was given time off for writing retreats. FA’s testimony during the arbitration was characterised by this creative innovation of new and changing versions, and for this reason, his credibility was seriously damaged.

 

[188]  S [....] went on to relay examples of how FA deprived her of support in writing her book, restricted her ability to use the one day per week to work from home, and failed to ask her for documentation in order for early confirmation. I could find no reason to doubt the veracity of her testimony and therefore accepts her claim of differential treatment which clearly points to gender bullying. FA himself expressed the view that S [....] was difficult and aggressive, and this appears to have been the motive behind the bullying.

 

WP: Lack of support

 

[189].  WP testified that FA had told her that she was allegedly utilised at only at 50% of her capacity and that he was considering upskilling her, in order to have a greater workload and this may make her eligible for a pay increase. He wanted her to undergo the GIS course. She disagreed with FA on the notion that she was underworked, as in fact, she was overworked and overburdened and the GIS course posed significant challenges for her given that she did not have capacity. Having been told this by FA stirred the believe with her, that her job was at risk if she did not go on the course.

 

[190].  On the other hand, FA denied that WP was overburdened, stating that she was only busy half of the day over the period 2014 to 2017. This version of FA does not ring true in light of all the evidence before me, as well as his own testimony, where he stated that resources were scares and that is why he took issue with F [....], saying that too much paper was being printed, S [....] requiring time off to right her book, and M [....] 1 requested a seconded as there was, according to him, no replacement found. More so, it is further unclear how FA was in a position to state that WP was busy for only half the day. WP obviously was best placed to know whether she was overburdened and overworked. She testified that she even had to sleep in her office at times.

 

[191].  It further transpired that when WP went on the course, FA did not inform the School that she would be embarking upon this course over a quarter of the year and that staff members bear this in mind when allocating work for her to perform, despite the request from WP. She explained that G [....] became infuriated when she told him that she was embarking upon this GIS course and had to attend a lecturer. The inference in this regard is drawn from the change in FA’s version on this point, first saying that he informed all in the executive meeting and that was filtered down, only to change his version, saying that it was only implied that she would need time off. Likewise, no evidence was adduced by FA to support his version.

 

[192].  I am inclined to accept the argument from the University, that FA’s failure to inform the School is an act of bullying because he unreasonably withheld assistance which WP required in order to have a manageable workload balance.

 

[193].  Then there is also the complaint from WP that FA was micromanaging her, this entailed that she had to submit weekly schedules of the work that she had performed. FA explained under cross-examination that he required the weekly schedules from WP in order to know what she does. He was not forthcoming when asked whether there were any complaints about her availability, but quickly pointed out that it was normal for staff to complete timesheets. Surely this cannot be the case, as the only evidence before me that shows this requirement, is the evidence related to WP and to C [....]. Upon further probing, FA responded that there were no complaints by the executive, however, subsequently changed his answer to say maybe partly. These two versions are directly at odds with the clear statement he made in his response to the GEO where he stated that the executives had expressed concerns regarding her unavailability and that of C [....].[64] FA was however unable to identify who on the executive was that allegedly raised this complaint against WP, and was also unable to state when these complaints were raised, but only said it was in 2014 or 2015.

 

[194].  What FA failed to answer is, if there were no more complaints after 2014, why did he require WP to continue preparing weekly work schedules for a period of three years after the allege complaint? This conduct appears all the more unreasonable, considering he never afforded WP the opportunity to respond to any such allegations, but just took the alleged complaints from executives at face value and demanded weekly schedules. Having to submit weekly reports, without the benefit of having an opportunity to address the alleged concern, and being told on numerous occasions that the HOS is fighting trying to save your job, within the greater scheme of the evidence before me, appears to be nothing less than bullying.

 

[195].  FA disputed WP’s testimony when she testified that he brought her under the impression that there is a real threat to her job security. Regard had however to the questions posed to WP under cross-examination, this denial seems at odds with the version put to WP under cross-examination during the arbitration. The following, or words to this effect, was put to WP: he says you will get fired, fight for your job – not that I’m going to fire you. It is your interpretation that you will get fired means I am going to fire you. You are wrong.      

 

[196].  FA’s bullying had a deep impact on WP, from a working relations point of view, she testified that she became hostile in a sense towards her colleagues because she felt like they were two-faced because they would speak to her and then talk behind her back about being inadequate at her job, and from an internal view, she testified that this left her on edge, and that it caused her anxiety, pain and stress.

 

[197].  There is nothing wrong in a manager monitoring the goals and targets of a subordinate, but there is everything wrong with a manager instilling fear in a subordinate by bringing under the impression that her job security is under threat and that he is the one fighting for her, but she will have to do as he says in order to keep her job. I have no hesitation in accepting that that is bulling.

 

C [....]: Lack of support

 

[198].  C [....] alluded to the fact that FA showed a total lack of faith in her and that it made her feel totally disrespected, when he discouraged her in 2015, suggesting that she drops a module in 2016. Despite his suggestion, C [....] decided to do all four courses in that year, and she passed them exceptionally well. He did the same when she decided to register for her PhD. It is common cause that FA told her that she should think carefully about doing it because it could affect her job.

 

[199].  There is nothing unusual for staff members to study towards their PhD while working, however the lack of faith that he displayed in her, led to C [....] telling him that he was controlling her and that she would pursue her PhD. This did not sit well with FA and he immediately called an end to it. FA could not give a reasonable explanation this apparent discouragement to C [....], which I accept, is starkly different to how he would encourage and support the men in the School. I would have expected the exact opposite of a manager in FA’s shoes. Here you have a junior member of staff who shows dedication and excitement to better herself, and by the time that the second discouragement from FA became known, she has already proven herself. If FA was genuinely concerned about the impact that the pressures of work and studies may have on C [....] and her performance, then suggestions on how he could assist would have been more appropriate than discouragement. The expression of how this made he feel, is therefore what would be expected of any other person in her shoes.

 

FA commenting on the personality of M [....] 1 and F [....]

 

[200].  Both F [....] and M [....] 1 testified as to how FA would comment on their personality. F [....] described this as an attempt from FA to weaponize her early confirmation and promotion by raising problems with her personality and tone of voice. It is understandable that a person in the position of F [....] would become anxious and reserved thinking that there is something wrong with your personality. To this extent F [....] testified that this eroded the sense of who she was and whether she deserved to be where she was. FA disputed this testimony, however in the absence of any evidence to show there was collaboration between F [....] and M [....] 1, the cumulative effect of both testifying to very similar behaviour from FA, points to pattern and speaks to the truthfulness of the version.

 

[201].  M [....] 1 raised a similar complaint in an email address to FA where she said the following:

 

“…you came to my office and told me that, although you understand how Italians behave, since you know many of them, you were not sure that colleagues during the meeting, the previous day, would equally understand my way of gesticulating and talking. My behaviour may therefore be perceived as inappropriate of disrespectful by colleagues in the Department. Several thoughts have been going around my head in the days following that conversation.

 

Firstly, I kept on asking myself whether you were reporting comments and grievances that had been conveyed to you or whether you were expressing a discomfort with the way we had interacted at the meeting over the issues of transformation…if, on the other hand, this sentiments were expressed by one or more colleagues, I would like to kindly elaborate on what colleagues exactly reported to you, so that I better understand the context of the sentiment and I am given a fair opportunity to think about it, rather than just reflecting on my “Italian-ness”. On this latter point, I felt very uncomfortable that my nationality was brought up by you as a way of discussing my professional behaviour…nevertheless, I am prepared to take into account specific constructive criticism on the way I interact with my colleagues in the School, as I have always done before in my professional life which I have developed entirely abroad.

 

I very much hope you will be able to let me know what your opinion is on the points I have raised. As I said, although on the day I did not think much of it, I felt really upset and uncomfortable in thinking about the conversation we had, since I perceived it more as a criticism of me as an Italian national than as an open and honest discussion on professional ethics and interaction with colleagues…”.

 

FA did not respond to the email.

 

FA allegedly allowing women to be bullied and how he dealt with the complaints

 

WP’s complaint against G [....]

 

[202].  WP recounted a discussion that she had with FA during a one-on-one meeting, where she told him that G [....] displays mean conduct towards her and, amongst others, often calls her stupid. She went on to explain that G [....] ’s conduct improved a month or so after she spoke to FA, albeit that he still knocked loudly on her door like a policeman, but that FA never gave her feedback in this regard.

 

[203].  FA was A [....] ant that he gave WP feedback after he had spoken to G [....] . When G [....] was however questioned on the issue, his testimony became indistinct. At first, he stated that FA did not inform him that WP had complained that he called her stupid, however, he subsequently changed his version, following an objection from FA’s attorney stating that he could not recall. G [....] did not impress in his testimony, as he offered different versions, but also could not provide any information as to when FA had discussed WP’s complaints about how he treated her, which also included that he was dissatisfied about her quality of work, nor could he satisfactorily elaborate on what FA would have said to him. G [....] further did not hesitate to refer to WP as a liar. Considering his perception that G [....] shared he had of WP, I find his earlier testimony, that he had a good working relationship with WP, highly unlikely and contradictory.

 

[204].  It is concerning to note, the absence of any action taken by FA against G [....] , even if he had spoken to G [....] about the complaints from WP. I would have expected him to have taken action against G [....] , a senior professor, calling a junior member of staff, stupid.

 

F [....]’s complaint against G [....]

 

[205].  It was common cause that F [....] had raised a complaint with FA regarding an incident where G [....] asked her to co-supervise master’s students, but then referred to her as having insufficient knowledge in statistics in a meeting he had with the students, but where she was not present.

 

[206].  F [....] went on to explain that she confronted G [....] about what he had said to students, to which G [....] responded by shouting at her in such manner that it attacked the attention of W [....] who checked-in to ensure everything was okey. She explained that this exchange with G [....] , reduced her to tears.

 

[207].  It is common cause that F [....] then approached FA for a second time, to which he responded that G [....] gets like this at times and that it is nothing to worry about, it often happens when something is happening at home. From the above it is evident that FA was quick to come to G [....] ’s assistance and defend him, despite acknowledging during the proceedings that it is highly inappropriate and unacceptable for a colleague to shout at another colleague and that such cannot be condoned. It is further striking that FA treated the incident when K [....] complained about the Teaching Block incident with S [....] , much different and did not rush to her assistance as he did with G [....] . FA also admitted that at the time that F [....] approached him for the second time, that he had not yet spoken to G [....] , so he had not known G [....] ’s version when he came to his assistance. G [....] was clearly in the wrong when discussing F [....]’s competence with students, but then to respond by shouting at F [....] in the manner he did, clearly constitutes bullying behaviour towards F [....].

 

[208].  F [....]’s uncontested evidence was that FA did not report back to her on the issue. In failing to properly address this highly inappropriate and unacceptable conduct of G [....] , he condoned G [....] ’s bullying behaviour towards F [....]. FA testified that he spoke to G [....] and told him to apologise to F [....], however both F [....] and G [....] ’s testimonies point to the fact that G [....] did not apologise to F [....] . Regard had to the evidence before me, the testimony of FA is treated with circumspection.

 

[209].  The fact that he failed to resolve this complaint in the manner that he explained in his written submissions, when he stated that he always, “in cases of conflict I always speak to parties separately and then bring them together for discussion”[65], shows that he was not honest in his testimony and that he dealt with complaints from women and men in a disparate manner. This point is further demonstrated in the DK incident, when he forced F [....] to apologise to DK, whilst he did not do the same with G [....] .

 

F [....]’s complaint against E [....] 2

 

[210].  F [....] and E [....] 2 were both appointed into the post of Lecturer in 2017 in the Geography Department. According to F [....] there was a general perception in the School that both she, and E [....] 2 were appointed to the same post, and F [....] was dissatisfied with FA for not setting the record straight.

 

[211].  On or about 23 October 2017,[66] F [....] brought this and the division it caused between her and E [....] 2, to the attention of FA. It came to F [....]’s attention that E [....] 2 had discussed a matter that was debated of a closed meeting with Chamberlain, and she accordingly took it up with E [....] 2. E [....] 2 took exception and this led to a confrontation.

 

[212].  F [....] brought it to the attention of FA that E [....] 2 was discussing matters, of a closed meeting, with Chamberlain, and asked FA to resolve the issue urgently as her character was being called into question. FA disagreed during the arbitration, in response to a question put to him, that the matter was serious.

 

[213].  Pursuant thereto, FA asked F [....] to join him, C [....] 3 and E [....] 2 in his office. Upon her arrival in the office, FA acknowledged the unhappiness between the two of them and indicated that one of them needs to resolve it. During the course of the discussion, E [....] 2 produced a letter addressed to FA on 27 October 2017, wherein she set out the concerns she had with F [....] , she apparently drafted the letter on the request of FA. F [....] testified that neither one of them had the opportunity to peruse each other’s complaints, yet FA insisted they deal with the issues.

 

[214].  The issues were discussed, and shortly thereafter FA indicated that he and C [....] 3 would leave the meeting, and that the two of them must remain there and resolve the issues. F [....] indicated to FA that his approach to leave the meeting, was inappropriate, and if this is the way that the School was going to be run, she would resign. FA responded that no-one would be resigning and pointed out that she could not resign because she was on probation. F [....] testified that this made her feel trapped.

 

[215].  According to F [....] the two of them sat there for approximately three (3) hours, and eventually she made an attempt to resolve the issues with E [....] 2. She went on to state that E [....] 2 attacked her personality during this time. Afterwards the meeting she sat in her office and cried; she described this event to be one of the most traumatic events in her life. C [....] 3 tried to contact her afterwards and told her to come to his house. C [....] 3 confirmed this testimony and described that F [....] was clearly distressed by the incident. He testified that when she described to him what happened she bit her lip so hard that it bled. C [....] 3 testified that the issue could have been avoided if the correct information regarding the appointment of E [....] 2 was given. From my observation when F [....] testified during the arbitration, it was evident that this incident affected F [....] greatly.

 

[216].  The University argued that this is just one more example of the difference in treatment the complaints received from FA, as opposed to how he treated the males in the School. The University’s argument in this regard is persuasive for the following reasons: i). the approach take by FA in this regard is held to have been highly inappropriate; and ii). there was no evidence before me to suggest that he dealt with complaints from me in an alike manner. This highly inappropriate approach adopted by FA, was unique to women, and much different to how FA for instances dealt with the complaint from K [....] relating to the Teaching Block incident. The University went on to argue that this is an example of the boys club in operation, I will return to this issue under the hearing “Boys Club”.

 

[217].  Considering what FA said to the Dean in a report that he submitted for the Dean’s attention, I have to mention that FA was less than F [....] 1 with the Dean. Upon a reading of the following extraction, FA creates the impression that he and C [....] 3 where present the whole time, and that they walked out of his office happy-:

 

“C [....] 2 and myself met the two parties separately and then together. We had a fruitful discussion that turned confrontational and very emotional. Eventually the two colleagues made up, promised to work together, committed to having a positive collegial relationship and both walked out of my office very happy”.[67]

 

This was obviously not the case. It was common cause that FA and C [....] 3 left F [....] and E [....] 2 to discuss the matters on their own, however the email creates the perception that they were there the whole time. Further he states that they walked out very happy, which is also not true as can be seen from F [....]’s and C [....] 3’ testimonies. C [....] 3 was concerned for F [....] as he understood the context and the vulnerable position FA placed her in. Their testimonies are aligned when they testified that F [....] was devastated after the meeting, to the extent that she bit her lip until it bled.

 

Othering women

 

[218].  Referring to women as difficult:

 

[218.1].         Testimony was led by F [....] that in 2016, that before she applied for the post of lecturer, FA summoned her to his office and told her about the “difficult women” who are spreading rumours about her and that she was promised the position. He cautioned her to watch what she says and to who she says it.

 

[218.2].         A change in FA’s testimony was noted in this regard. Initially during the Enquiry and at the arbitration, FA disputed that he told F [....] that there are difficult women in the School, he however changed that person to he told her there were difficult people in the School, to conceding that he had told her that there are difficult women in the School.

 

[218.3].         It is evident from the testimony before me that FA did not think highly of S [....] and M [....] 1, and he conceded as much that he believed they were responsible for spreading the rumour. FA admitted that his assumption was based on the fact that the two of them would constantly raise issues in the School. Ultimately, he conceded that the issues were legitimate issues, but despite its legitimacy, their determination on addressing issues, created the perception with him that they are difficult women. Interesting though, people like K [....] raised issues with FA, amongst others, the Teaching Block incident, G [....] raised issues with FA, such as the performance of DK, and the Transformation Committee composition, and S [....] 4 also raised the issue of the composition of the Transformation Committee, however none of them caused FA to form the believe that they were difficult men.

 

[218.4].         F [....] testified that he gesticulated in the direction of M [....] 1 and S [....] ’s offices when he referred to the difficult women. Equally surprising is the fact that FA initially disputed this version, however he subsequently changed his version to include that that was indeed his believe. Coming from the HOS, F [....] was made to believe that S [....] and M [....] 1 were spreading rumours about her. F [....] testified that this perception that was created in her, caused her to be cautious about them. His actions can only be interpreted as that he pitted F [....] against S [....] and M [....] 1.

 

[218.5].         FA testified that A [....] and one other person approached him and told him that there are females spreading rumours in the School. Without delay, he accepted the truthfulness of A [....] and this other person’s version, as “he is a truthful person” and he went on to state that “I believed him”. He did not question the statements made by them, and although he did not know who these women were, as he did not ask, he assumed it was S [....] and M [....] 1. It is reasonable to infer, under these circumstances, where FA was of the believe that S [....] and M [....] 1 spread rumours about him, that it affected his relationship with them. It is further plausible that because he thought of A [....] as a truthful person, and A [....] viewed these women as difficult, that he made the leap to form the believe that S [....] and M [....] 1 were “difficult women”.

 

[218.6].         It is further reasonable to infer, considering FA’s written and verbal responses during and before this arbitration, that he did not take kindly to being challenged and what he sees as his authority being undermined. This was particularly evident from the manner he reacted if these “difficult women” challenged him in meetings. Regard had to the evidence before me and as discussed inter alia under the heading: conduct during meetings, it is apparent that FA’s sense of fairness and what constitutes a challenge to his authority, was not always shared by everyone. These believes that he held of women, led him to believe women are difficult, instead of welcoming their suggestions and comments when it comes to decision making.

 

[219].  Referring to “female colleagues”

 

[219.1].         Upon receipt of a complaint from E [....] 2, FA forwarded an email to the Dean that reads as follows:

 

“Dear Ebrahim.

C [....] 2 and I have dealt with this (between female colleagues) earlier this year and unfortunately it is coming up again. The matter boils down to:

Rivalry / turf war as those involved are climatologists and/or first year lecturers;

Misunderstanding / misperceptions;

Differences in personalities.

I will address this with C [....] 2 as head of geog and report back to you.

Best regards

[FA]”. (emphasis added)

 

[219.2].         A further email followed on or about 1 November 2017, from FA to the Dean stating:

 

“Dear Ebrahim

This matter has now been resolved.

In brief, I met the two female colleagues separately (with C [....] 2 ) and then brought them together. We had a fruitful discussion that turned confrontational and very emotional. Eventually the two colleagues made up, promised to work together, committed to having a positive collegial relationship, and both walked out of my office very happy.

Best regards

[FA]”. (emphasis added)

 

[219.3].         No reasonable explanation was proffered by FA for having to use gender descriptions in his email. From a reading of the email, it would appear that FA was downplaying the seriousness of the incident, saying that it relates to amongst others, rivalry and personality differences. Of particular importance is the fact that E [....] 2 raised more than one concern, of which one (1) referred to K [....] , but FA mentioned nothing of that. It is apparent from this that FA treated women and men in the School differently, and that he most definitely othered women by adding descriptors such as female colleagues for which there was no need, expect to show the matter is trivial.

 

[220].  Referring to F [....] as “this lady”:

 

[220.1].         It is common cause that FA referred to F [....] in her presence as “this lady”. He explained that he did so out of a sign of respect, however later sought to change her version by saying it was said to be informal.

 

[220.2].         F [....] did not appreciate being referred to as ‘the lady” and testified that she saw it as derogatory. I have no hesitation in accepting that it is inappropriate to refer to a colleague and subordinate as “the lady”, irrespective whether it is in or outside her presence. The term has a negative connotation, and is usually indicative of disrespect or disdain towards a person.

 

[220.3].         B [....]  gave undisputed testimony that FA also referred to her in the same way whilst he was still at UKZN. She explained that she found this to be him “othering” her, disdainfully. FA made a belated attempt at explaining that the term is used in different contexts and could be a sign of respect. In the absence of B [....]  being given an opportunity to respond to this version, very little to no weight can be attached to this testimony.

 

[221].  Referring to females as aggressive

 

[221.1].         FA, in his submissions to the Enquiry panel. Refers to S [....] as “one of the aggressive females” in the School. The unfortunate part of this is, that at the time of assigning this descriptor to S [....] , FA was still her line manager. Not only did FA refer to S [....] as aggressive, a descriptor that he has not used for any male in the School, but he went on to describe that she is female. FA could provide no reasonable explanation for why he had to have described S [....] in such a way. Everyone on the panel was aware that S [....] is a woman, and therefore it leads me to the conclusion that the only reason he used the descriptor is that he used it in a derogatory sense.

 

[221.2].         The last example that I will mention to point that FA was othering females, is the one where he expanded on M [....]’s assessment that there is a culture of backstabbing and mistrust in the School, to which he stated that it is apparently rife amongst “female members of staff”. In answering questions posed to him under cross-examination, he verbalised his true believe, and that is that there was no mistrust and backstabbing amongst men. That begs the question, how could he be so confident in making such a statement? The answer appears to lay in the special bond that apparently formed between the men in the School. This bond is further apparent from the fact that FA appears to protect and defend member in this “elite group”. He was also quick to believe them without any further interrogation. By assigning these descriptors to female members of staff, FA was in fact alienating and turning them into the villains.

 

Mean to women

 

[222].  A disagreement ensured between FA and M [....] 1 regarding admissions criteria for masters’ course designed by M [....] 1 and A [....] . The rationale for the masters’ course was to give applicants who did not have a background in GIS or remote sensing, the opportunity to acquire knowledge in this area.

 

[223].  FA was A [....] ant throughout that M [....] 1’s understanding of the admissions criteria for students to be accepted into the course, was wrong. He insists that applicants have to have a background in GIS or remote sensing in order to be admitted to the master’s course. Trying to prove that it is possible to have no background but be successful, M [....] 1 raised the fact that she, herself, is an example of someone who only obtained a GIS and remote sensing qualifications at master’s level. M [....] 1 testified that FA made the remark in the meeting “ja, I know how she got that qualification” (or words to that effect) in full view of others that were in the meeting. FA denied this.

 

[224].  FA further called into question M [....] 1’s teaching abilities and insisted that those students who were admitted into the course without a GIS and remote sensing background, struggled and failed. When asked, he could however not confirm this to be a fact. In fact, he added a further element to explain his suspicion, that if they did not fail, that he would be concerned the M [....] 1 was watering down the course. This testimony of FA sits perfectly well with the version from M [....] 1 that he casted aspersions on how she obtained her qualification and that he hinted that she must have obtained it in an underhanded manner.

 

[225].  M [....] 1’s testimony was consistent in all aspects and coincided largely with FA’s on this point, whilst FA showed a deliberate willingness to belittle M [....] 1 even further in the arbitration by stating that if students passed, that he would be concerned that she had watered the course down. This is particularly telling as M [....] 1 and A [....] designed this course together, however FA chose to belittle and call into question the qualifications of M [....] 1, whilst he does not do the same with A [....] . He however subsequently conceded that his suggestion that M [....] 1 watered the course down, was not based on any fact, after it was put to him that it is not only M [....] 1 who assess these students, but also external examinators for other institutions.

 

[226].  For FA to say something like this in a meeting and in the presence of others, he invested in the minds of those present, that M [....] 1 does not have the appropriate qualifications, that she is dishonest and or unethical in the manner she has obtained the qualification, and that her involvement lowers the level at which this course will be taught.

 

Shunning Women

 

[227].  In WP’s testimony she referred to yet another series of events, whereas FA would neither speak, nor greet her, for reasons unknown to her. Exacts of her testimony during the Enquiry which she repeated during the arbitration:

 

“I infuriating (sic) [FA] so bad. He was literally livid and did not wanted to speak to me. He said to me speak to HR to sort it out because he is not going to do it. I am on my own.

 

[FA] would not greet me. [FA] would pass me in the corridors without giving me recognition and I though did I do something bad you know.

 

He did not. He just did not wanted to speak to me. He did not give me any reason, any explanation. He just were indifferent towards me you know. Even when I am sitting with someone he would greet the person at times and not greet me. Even if he saw me in the morning and I would have greeted him, and he saw me with someone, he would greet the person and not greet me. So it was always uncomfortable coming in and out of the office and be seen. Because you are now seen as the troublemaker. You are now seen as a problem. So I would sort of hide myself in my office. I would stay overnight many days, many nights I slept in my office to keep up with doing my work and doing the study work[68].”

 

[228].  FA denied this version, accusing WP of lying, he could however not explain the motive for WP to lie. I had the opportunity to observe WP when she testified, and I found her to be sincere witness who was clearly deeply affected by the happenings at the workplace. WP was also not the only one who complaint about being shunned by FA.

 

[229].  M [....] 1 alluded to similar experience and treatment from FA. She explained that FA used to speak to her in Arabic and shared jokes with her. This however stopped during or about May / June 2015, after the incident where he confronted her on her “Italian behaviour.” Cumulatively the evidence pointed to a very unprofessional environment created by FA. On his version, he stopped speaking to her in Arabic and stopped sharing jokes with her, as he thought he needed to be careful of her taking things out of context. FA’s explanation makes no sense at all. Firstly, he conceded that M [....] 1 was not rude to him and secondly, he could not give an acceptable nor reasonable explanation why he should be “careful” that M [....] 1 would “take things out of context.” From the objective facts before me, there was simply nothing that would lead me to concluded that M [....] 1 and WP would have conspired to relay what happened to them, that bears such similarities, and present it so convincingly during the arbitration that the hurt caused by the incidents were visible. FA on the other hand, was eager to accuse WP of lying, and M [....] 1 of taking things out of hand, without any basis. He has further proven himself, during this arbitration, to be an unbelievable witness.

 

[230].  The experiences of the men in the School, such as G [....] , A [....] and S [....] 4 were remarkably different to those of the women in the School. To mention but a few:

 

[230.1].         G [....] testified that he found FA to be a breath of fresh air at the School;[69] and

[230.2].         S [....] 4 was “mesmerised” how FA wished to assist him to get himself ready for promotion.[70]

 

Recognition to men v women

 

[231].  There was also evidence before me of the disparate treatment between men and women in the School in relation to recognition. K [....] was for example thanked publicly for capturing marks and rearranging the display cabinet, whilst nothing of a similar nature was placed before me in relation to the women in the School, despite circumstances were such were due. To mention but a few examples are:

 

[231.1].         M [....] 1 who put together an accredited program which resulted in a new undergraduate degree offered at the University; and

[231.2].         S [....] securing external funding for the School, which FA in her probationary report refer to as “extensive research funding”.

 

Boys club

 

[232].  FA elaborated on his understanding of what a Boys Club is and explained that, it is where boys or men get together in an organisation and agree on how that organisation should run and by necessity, will exclude women. He conceded that a Boys Club culture in an organisation could result in the exclusion or abuse of women and that women are excluded from business decisions and office activities. He also agreed that condoning a Boys Club is wrongful.

 

[233].  S [....] 6 acknowledged that women are not treated well in the School[71] and that the School has a history of appeasing men.[72] FA made an attempt at explaining the obvious, by saying that she was referring to the time before he came to the School. From the objective facts before me that seems not to be factual. However, even if that is how FA found the School, he had a duty as the HOS to put a stop to such Boys Club. Instead, it is evident as discussed elsewhere in this award, that FA went to great lengths to support and protect men in the School. He was also quick to defend the men in the School, at the expense of the women in the School. It is further apparent that the existence of the Boys Club exceeded the boundaries of workplace in that S [....] 4 and G [....] testified of a strengthened relationship more recently. An objective evaluation of the evidence of FA’s witnesses, in the like of G [....] , S [....] 4 and A [....] , supports this finding, with the three of them giving evidence in support of FA in instances where they clearly had not heard the complaints.

 

[234].  The University presented a persuasive argument, that, FA acknowledged that there were divisions along gendered lines, at least within the Geography Department, during his tenure. The fact that he did nothing about it, is because it suited him for the Boys Club to continue operating within the School, and that this Boys Club laid a foundation for him to commit the acts of gender-based discrimination, gender based victimisation and gender-based bullying.

 

 FA’s conduct during the arbitration

 

Gaslighting

 

[235].  FA made a very poor impression during these proceedings. Not only in his demeanor in the witness-box, but also in his evidence, and particularly in the manner that he answered questions posed to him during cross-examination.

 

[236].  FA made a deliberate attempt to accord blame to the complainants in an effort to discredit them. He would raise allegations about their conduct and performance, however when questioned, he would concede that he has never taken action against them.

 

[237].  In one particular instance that will serve as example to demonstrate this point, FA made an attempt to convince me that F [....] was a troublemaker. He pointed to an incident where F [....] apologised to DK due to an incident that happened between the two of them. In explaining what had transpired, F [....] said that she felt that she was not in the wrong, however she apologised because FA instructed her to do so. FA deliberately omitted to inform these proceedings.

 

[238].  He would also undermine the complainant’s lived experiences by habitually disputing their versions, stating that it was merely their perceptions and then continue to provide an answer which in his view, is the truth. To this extent, F [....] testified that she was crying in her office after the meeting with E [....] 2 ended. In cross-examination it was put to her that she was not crying for that reason but was crying because her gossiping tendencies had been exposed. This type of behaviour can only be aimed at casting F [....] in a bad light, and this is specifically true, as neither FA nor his attorney is in a position to tell F [....] why she was crying.

 

[239].  There was an incident relayed to these proceedings by C [....], between her and FA. She explained that pursuant to the incident, which she described as being abuse by FA, she had to be cradled like a baby and kept warm by her husband. It was put to her during cross-examination that she was intentionally dramatic, insincere and that everything that she mentioned had been manipulated to built a case against FA. I found this proposition to be highly inappropriate and inexcusable.

 

Consequences on the complainants

 

[240].  For purposes of this award, I deem it necessary to quote portions of just two of the complainant’s testimonies in relation to the effect FA’s behaviour had on them. The other complaints had similar testimonies, however due to brevity only that of F [....] and WP will be quoted.

 

F [....] testified as follows, or words to this effect:

 

·      “At first FA was very supportive.

·      But when I took up the lecturing post, who I spoke to and how often I spoke to them, came up.

·      With reference to difficult woman, I believe he was speaking about M [....] 1 and Sampson.

·      The wording is generialised but yes, I found [FA’s] leadership style to be belittling and sexist.

·      I witnessed female staff being treated differently.

·      Before I started, I was very strong in character.

·      I was strong on debating. I was in confrontational spaces where I could hold my ground

·      I was aware of my ability to make arguments.

·      During this time my strength of character was often used against me.

·      I was said to be narcissistic.

·      He would say my personality would be my downfall.

·      That makes it difficult to be expected to perform, but you are encouraged not to celebrate your own performances.

·      I found myself double checking myself.

·      I have doubted myself so severely I had to seek support.

·      My sense of self was so severely affected.

·      For the first time I experienced writers-block for six (6) weeks, I was far more emotional during that period”.

 

[241].  WP testified the following:

 

“I think everybody was scared. Especially if you are a female. There was that kind of fear because he is male and males sort of dominate the place[73]

 

[242].  Comparing these experiences, as well as the broader testimony of the University witnesses, to the concept of gender bullying as alluded to by Langa, I am inclined to accept that FA is indeed in breach of the workplace rule against gender-bullying and gender harassment.

 

Appropriateness of the sanction

 

[243]. That brings me to the appropriateness of the sanction. From the objective facts before me, the only reasonable conclusion to be reached, as summarised above, is that FA is indeed guilty of all of the allegations for which he was dismissed. In essence, he had conducted himself in a manner which had destroyed the employment relationship by creating such disharmony and anxiety for the complainants, that he is no longer fit to continue with his duties and responsibilities he was employed to do, which was to manage and oversee the School.

 

[244].  As set out above, in my view, FA’s conduct amounted to workplace bullying that had a profound impact on the complaints, psychologically and emotionally, and damaged the interpersonal relationships in the School. In reaching this conclusion, and in order to make a balanced and equitable assessment, consideration was given to the position and interests of both FA and the University. In the circumstances, I am satisfied that the decision of the University to dismiss, was appropriate, regard had to the totality of the circumstances, which includes the importance of the rule that had been breached, the reasons given by the University for imposing the sanction of dismissal, and other factors such as, in particular, the harm caused by FA’s conduct. I am not persuaded that any action short of dismissal, nor additional training and instruction, may result in this conduct never to be repeated. Where there is a denial of guilt, it would be extremely difficult to justify a progressive sanction[74]. Regard was also had to the impact of the dismissal on FA and his length of service[75], however the gravity of the offence far outweighs any mitigating factor raised by FA.

 

[245].  I have also not noticed any remorse from FA, instead he deployed blame shifting strategies to divert the attention from him and to get out of difficult situations. The courts have considered the absence of remorse from a dismissed employee, and held it is conceivable that an employer may find it difficult to re-employ an employee who has shown no remorse. Acknowledgement of wrong doing is the first step towards rehabilitation[76]. An employee who is guilty of misconduct and who does not admit that he has done wrong, cannot be trusted again[77].

 

[246]. Having considered all of the above, I have no hesitation in finding the dismissal substantively fair.

 

PROCEDURAL FAIRNESS

 

[247].  Several issues, relating to the procedural fairness of the dismissal, were raised at the commencement of the proceedings, and was recorded in the pre-arbitration minute under the heading: Facts that are in dispute. During the course of the proceedings, some of these issues were withdrawn and will therefore no longer forms part of this award. The issues in dispute are the following:

 

[247.1].         One of the issues that the arbitrator was required to decide was “the procedural fairness of the dismissal”. FA pointing out that:

 

“This cannot be narrowed down any further as the applicant disputes each and every aspect of the procedure followed by the respondent in dismissing him”.

 

[247.2].         Whether or not, the gender equity office of the University (“GEO”) exceeded its powers on its report, in having recommended that FA be found guilty of misconduct and be dismissed and/or that FA be stripped of his title as head of school[78];

 

[247.3].      Whether or not the manner in which the enquiry proceeded was flawed. FA contended that it was flawed because “amongst others”:

 

[247.3.1].      FA’s right to cross-examine the complainants was limited[79];

[247.3.2].      FA was not allowed to call all of the witnesses that he indicated he sought to call as his witnesses[80];

[247.3.3].      FA was not given a full opportunity to present his version[81];

[247.3.4].      The appeal/review hearing was fundamentally flawed and amounted to no hearing at all[82].

 

[248].  The LRA itself is silent on the content and any right to procedural fairness, it simply requires that the employer establish that the dismissal was affected in accordance with a fair procedure. The nature and extent of the right to a fair procedure preceding the dismissal is spelled out in the Code of Good Practice: Dismissal in Schedule 8 to the LRA (“the Code).

 

[249].  Item 4 of the Code, contemplates an investigation into the allegations of misconduct that includes an inquiry, which need not be formal. The Code does not contemplate a criminal justice model incorporating formal charge sheets, formal procedures for the leading and cross-examination of witnesses, formal rules of evidence, legal representation and independent decision-making. The Code contemplates a flexible, less onerous approach. The fairness of an inquiry conducted by an employer without workplace procedures must be tested against the five requirements for procedural fairness contained in Item 4, and entails the following[83]:

 

“[1].   The employer must notify the employee of the allegations of misconduct using a form and a language that the employee can reasonably understand. The notice must be clear and comprehensible to E [....]ble the employee to respond to it. The notification may be oral or in writing. The objective of this requirement is to ensure that the employee is reasonably able to state a case in response. The fairness of the notification should be tested against that objective.

 

[2].     The employee should be allowed a reasonable time to prepare a response to the allegations. Reasonableness will depend on the complexity of the allegations and the nature of the factual issues that need to be canvassed. Giving less than a day to prepare a response will in most cases not be reasonable.

 

[3].     The employee should be allowed the assistance of a trade union representative or fellow employee in preparing a response and in stating a case in any enquiry. The right to assistance by a trade union representative applies only if the trade union has been granted organisational rights to have elected representatives for this purpose. A trade union representative who does not satisfy this criterion may only assist an employee if he or she is a fellow employee.

 

[4].     The employee should be given the opportunity to state a case in response to the allegations. This can be done in writing or in a meeting and there is no requirement to hold a formal hearing[84]. If the employer holds a formal hearing, then it should be conducted in a manner that properly permits the employee to state a case. The determining factor in assessing the fairness of the hearing is whether the employee was given a proper opportunity to state a case. In some cases that will mean being given the opportunity to call and question witnesses, in others it may mean no more than giving an explanation. The duty to give an employee an opportunity to state a case is not affected by who hears the case. See item 4 of Schedule 8 to the LRA (Code of Good Practice: Dismissal). Accordingly, it is not unfair for an employer to use the services of a third party, such as an attorney or an arbitrator, to conduct the hearing. (The identification in the Code of the determining factor [‘the opportunity to state a case’] in respect of an inquiry means that the jurisprudence developed by the courts under the 1956 LRA has limited application in the assessment of procedural fairness of an inquiry in the form of a hearing under the Code.)

 

[5].     The employer should communicate the decision taken, preferably in writing, furnish the employee with the reasons, and, if dismissed, remind the employee of the right to refer a dispute to the CCMA, a council with jurisdiction, or in terms of any dispute resolution procedure in a collective agreement”.

 

[250].  This approach represents a significant and fundamental departure from what might be termed the 'criminal justice' model that was developed by the Industrial Court and applied under the unfair labour practice jurisdiction that evolved under the 1956 Labour Relations Act. That model likened a workplace disciplinary enquiry to a criminal trial, and developed rules and procedures, including rules relating to bias and any apprehension of bias, that were appropriate in that context[85].

 

[251].  Where a workplace procedure is in place, the legal status of the procedure, will inform the approach taken to assess the fairness of the dismissal.

 

[252].  It is common cause that the University has developed and embarked upon a special dispensation to deal with allegations of misconduct pertaining to allegations of gender discrimination, sexual harassment and gender violence (broadly termed “gender-related misconduct”) or gender-based harm (collectively referred to as “GBH”). It is also common cause that this disciplinary procedure[86] would be applied in investigating, addressing and disciplining staff in respect of GBH, and binds FA by virtue of the nature of the allegations proffered against him.

 

[253].  From a mere reading of the University disciplinary code, it is evident that the disciplinary code is more generous in the application of the procedure, than what is prescribed in the Code. For example, the Code does not require an employer to grant the accused employee the right to cross-examine, yet the University disciplinary code grants that right[87].

 

[254].  FA argued, with specific reference to Police & Prisons Civil Right Union (POPCRU) v Minister of Correctional Services and Others[88], that the allegations raised against him must be specified with sufficient particularity to E [....]ble him to offer a response. He contended that he had never been given a charge sheet, but only a list of broad allegations from the complainants. What was required was information such as the complainant’s names, incidents referred to and dates, which was not provided, resultant in him not being able to properly prepare a defense.

[255].  FA was presented with a letter on the 26^th of January 2018, wherein the complaints raised against him by the Complainants was brought to his attention. He was afforded the opportunity to respond thereto, which he duly did on the 2^nd of February 2018 in a letter titled, “Response to Allegations” (comprising of a twenty-three-page document)[89]. I pause to highlight but one of these allegations and the response from FA thereto:

 

“Staff members allege that you are untrustworthy and have been known to lie about matters relating to the Geography, Archaeology and Environmental Studies department (GAES). You are further alleged to conceal important information while providing inaccurate or false information”.

 

In response to this allegation, FA sets out to disprove this allegation and by example lists three (3) specific instances where he states that some colleagues attempted to bully him into lie and/or concealing information. The three (3) incidents that he highlighted were: M [....] 1’s intention to apply for promotion; S [....] ’s application for promotion / SARCHi Chair; and the statement that he did not want to teach or supervise honours students. Incidentally, these examples made by FA, are amongst others, the exact complaints referred to by the Complaints.

 

[256].  Pursuant thereto he was given the GEO report (comprising of a thirty-three-page document, excluding annexures), that set out the allegations of gender misconduct. In his response to a question put to him under cross-examination, relating to the notion that he was given insufficient information by the GEO, FA however conceded that upon a reading of the complaints, he could immediately infer who the complainant was and that he knew the nature of each of their allegations. Regard had to his response; it is apparent that he had sufficient understanding of the allegations as he provided a detailed response to each of the allegations.

 

[257].  The information given to FA in the GEO report, was much more detailed than what would ordinarily be set out in a standard notice to attend an enquiry. I have also noted that the essence of his response that he since the 2^nd of February 2018, to that he gave in the arbitration, has not changed, demonstrating that he was in a position to properly prepare a response. I am of the opinion that his demand for additional information was not genuine.

 

[258].  Having regard to one such complaint as contained in the GEO report, which the University argued was akin to a notice to attend a hearing, but, with much more detail, namely that of C [....] (described in the report as complainant one), where it is recorded:

 

“Complainant one notes that shortly after her appointment she would receive calls from staff relating to work queries that were not relevant to her scope of work. Complainant one was confused by these calls as she had not been employed in this capacity. Staff were further misinformed of her specific duties. This confusion led to complainant one emailing human resources to clarify her job description. She then meets with FA to discuss the matter. During the meeting, FA advises complainant one that he is entitled to change her job description unilaterally…”.

 

[259].  FA’s contention that the report and allegations lacked specificity, does not sit well with the above example (and all allegations were described in similar detail).

 

[260].  I am inclined to follow the Labour Appeal Court judgement in Mutual Construction Company TVL (Pty) Ltd v Ntombela NO and Others where the Court had to consider the effect on the fairness of the dismissal where the allegations preferred against the employee, did not specify with any degree of certainty, what the nature of the misconduct was that he was alleged to have been guilty of. The facts in this matter are similar to the matter before me. The Court had this to say:

 

“I do not think that, viewing the issue holistically, the third respondent did not receive a fair hearing. Of course, the procedure was not without some flaws but these to me were not so gross and of the nature as to justify the vitiation of the process. Granted, the charges as reflected in the notice of enquiry did not specify with any degree of certainty what it was that the third respondent was alleged to have done which supported the charges preferred against him. According to Binks the charges were explained to the third respondent at the disciplinary hearing. In any event, it did appear from the nature of his defence and evidence which he adduced that the third respondent fully understood the import of the charges against him and conducted his defence thereto reasonably well. This position was further better demonstrated during the arbitration proceedings, which was a hearing de novo of the dispute. Indeed, it could not be expected of a company official who was not legally trained to have drafted and formulated a charge sheet as, for example, was seen to be done in a court of law[90]”. (emphasis added)

 

[261].  The next question in this enquiry to consider is whether or not the decision to dismiss, was predetermined. FA explained his argument in this regard by arguing the GEO made a recommendation in the report to the Enquiry Panel, that he be found guilty and dismissed. It is common cause that the GEO’s roll in this matter was inter alia to investigated the allegations raised against FA. The evidence before me, convincingly, points to the fact that the GEO played no decision-making role, but that the finding and outcome was made by the Enquiry Panel. It is not uncommon for an investigator who investigated allegations against an employee, to make certain recommendations as to the seriousness of the allegations.

 

[262].  It was further argued by FA that the GEO did not interview all of his witnesses and where some of them were interviewed, they were not interviewed properly. It is common cause that the Enquiry Panel adopted an inquisitorial approach in the enquiry, and from the transcript of the Enquiry it is evident that probing questions were asked throughout the process. In addition, FA had ample opportunity to raise his defense before, during and after the Enquiry. Consequently, I am not persuaded by FA’s argument in this regard.

 

[263].  Finally, FA stated that the director of the GEO at the time, Ms. Crystal Dicks (“Dicks”), who led the pre-enquiry investigation, allegedly held friendships with some of the complainants. This contention is neither here nor there, as Dicks was not part of the decision-making process, in fact she was not even part of the Panel that considered the allegations raised against FA.

 

[264].  It is common cause that FA raised various points in limine during the Enquiry, and that such was responded to by the GEO. Pursuant thereto, the Panel considered and addressed FA’s allegations of conflict of interest and procedural objections, in a written ruling.[91] After receipt of this ruling FA continued to participate in the Enquiry. The argument from FA, that the role of the GEO was not clarified and was indeed questionable, is therefore an incorrect notion as the role of the GEO was clarified. Regard had to the facts before me and as set out above, negates the argument that the role of the GEO was questionable.

 

[265].  FA contended that the procedure was unfair as the Panel curtailed his right to cross-examine the Complainants and call witnesses in support of his version. This version of FA does not sit comfortably with the facts before me, which shows that FA was given ample opportunity to respond to the allegations raised against him, both in his written responses to the allegations, and during the Enquiry. The Code does not accord the right to an accused employee to cross-examine witnesses of the employer. The University disciplinary code does indeed permit the accused employee the opportunity to cross-examine. The disciplinary code provides for a more inquisitorial approach to be adopted in matters of a sensitive nature, such as was the case with FA. Provision is made to submit questions at any point, which the Panel will ask to the witnesses, and the Panel retains the discretion to decline ask any inadmissible questions[92].

 

[266].  I have no hesitation to accept that the disciplinary code of the University is aligned with the Code. Further that the process followed by the University accorded FA a fair opportunity to be heard. Regard had to the facts before me, it is evident that the version of the Complainants was meticulously examined by the Panel, and that FA had ample opportunity to call witnesses in support of his case. FA had the opportunity to further ventilate his case during the arbitration, and presented evidence similar to that presented during the Enquiry. All the evidence that was presented before me, and he had ample opportunity to call any witness of his choice, convinced me to come to a different conclusion as that of the Panel.

 

[267].  Turning to the question whether the appeal / review hearing was fundamentally flawed. It is common cause that the appeal/review hearing was conducted under the auspices of two former Constitutional Court judges. It is common cause that the appeal/review hearing carefully considered FA’s written and verbal submissions. FA could not explain why he stated the process was flawed, and ultimately conceded under cross-examination that he failed to provide an explanation in support of his submission.

 

[268].  The appeal/review panel found that that there was no evidential basis for FA’s criticisms of the findings of the Enquiry Panel. Having regard to the facts before me, I am perplexed with FA’s insistence that the appeal and review panel was flawed in the light of his inability to substantiate his allegations. Having regard to the finding and the process followed by the appeal and review panel, as highlighted in the decision, I could find no reason to conclude that the process was anything but fair.

 

Costs

 

[269].  The University acknowledged that the CCMA does not commonly award costs in arbitration proceedings. It was nonetheless argued that FA should be ordered to pay their costs

 

[270].  The Constitutional Court in Union for Police Security and Corrections Organisation v South African Custodial Management (Pty) Ltd and Others[93] upheld the established rule in litigation, that costs follow the result, does not apply in labour matters. It referred to one of its earlier judgements, Zungu v Premier of Kwazulu Natal and Others [94], where it was held that the rule of practice that costs follow result does not apply in labour law matters, the law and fairness govern the awarding of costs. It immediately cautioned: “It is not merely out of overzealous generosity on this Court’s part that we say that costs do not follow the result in labour matters. We are constitutionally and statutorily obliged to do so”. The rule that costs do not follow the result in labour matters honours key imperatives that flow directly from the Constitution and the LRA. Section 23 of the Constitution promotes fair labour practices through the LRA. It is clear from a holistic reading of the LRA that the dispute resolution mechanisms that it creates were meant to be a “one stop shop” for the resolution of labour disputes. In the labour context, section 34 affords those who enjoy labour rights in terms of the Constitution and the LRA the right of access to the statutory dispute resolution mechanisms crafted by the LRA. It ensures that disputes are resolved in peaceful, regulated and at institutionalised fora. It ensures that parties do not resort to unlawful means of resolving disputes that should be ventilated in the specialised institutions envisaged by the LRA. Indeed, the priority given by the LRA to the dispute resolution mechanisms before it.

 

[271].  CCMA Rule 39 provides that:

 

“(1).   In any arbitration proceedings, the commissioner may make an order for the payment of costs according to the requirements of law and fairness and when doing so should have regard to –

 

(a).       the measure of success that the parties achieved;

(b).       considerations of fairness that weigh in favour of or against granting a cost order;

(c).       any with prejudice offers that were made with a view to settling the dispute;

(d).       whether a party or the person who represented that party in the arbitration proceedings acted in a frivolous and vexatious manner–

(i).           by proceeding with or defending the dispute in the arbitration proceedings, or

(ii).          in its conduct during the arbitration proceedings;

(e).       the effect that a cost order may have on a continued employment relationship;

(f).        any agreement concluded between the parties to the arbitration concerning the basis on which costs should be awarded;

(g).       the importance of the issues raised during the arbitration to the parties as well as to the labour community at large;

(h).       any other relevant factors.

 

(2). A commissioner may make an award of costs in favour of a party who appears or is represented in arbitration by a person contemplated in rule 25(1)(a) in respect of reasonable disbursements actually incurred in the conduct of its case in the arbitration. A commissioner who makes an award in terms of this provision must specify clearly the items and amounts in respect of which costs are ordered.

(3). A commissioner may make an award of costs in respect of the legal fees of a party that is represented in an arbitration by a legal practitioner or candidate attorney, only if the other parties to the arbitration were represented by a legal practitioner or candidate attorney.

(4). An award for costs in terms of sub-rule (3) must be in the amount of –

 

(a).       in respect of the first day of an arbitration (including any arbitration concluded in a single hearing) – R7 000-00 (VAT inclusive);

(b)       in respect of each additional day of an arbitration – R4 700-00 (VAT inclusive)”.

 

[272].  I am inclined to agree that the matter was prolonged largely due to FA’s conduct and specifically his unwillingness to make reasonable concessions. However, I am disinclined to accept that fairness dictates in favour of granting an order for costs for the entire arbitration. It is indeed true that FA’s actions or omissions resulted in wasted time on 17, 19 and 20 January 2022. FA’s failure to secure the attendance of his witnesses and to furnish the proceedings with A [....] ’s medical certificate as alleged that he was booked off for the whole week, necessitates an order of costs against him for the three days in question. Costs for the 18^th of January 2022 is not awarded as the matter was heard over the full day.

 

[273].  Both parties were legally represented during the arbitration proceedings, and the costs will therefore be calculated as follows: R7 000.00 for the first day and R4700.00 for the remaining two (2) days. The total costs awarded is R16 400.00

 

AWARD:

 

[274].  For the reasons set out above, I find the dismissal of FA, to have been substantively and procedurally fair.

 

[275].  The University of the Witwatersrand is not ordered to reinstate, nor compensate the Applicant, FA.

 

[276].  FA is ordered to pay the costs of the University in the amount of R16 400 by no later than 30 May 2022 to account provided by the University for this purpose.

 

DATED AND SIGNED AT JOHANNESBURG ON THIS THE 6^th day of MAY 2022.

 

Signature:

 

Commissioner:         Ronel de Wet

 

Sector:                       Educators (private)

 

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