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THE LABOUR COURT OF SOUTH AFRICA

HELD AT CAPE TOWN

 

Not reportable

Case no: C307/2022

 

In the matter between:

 

THE DEPARTMENT OF HEALTH, WESTERN CAPE	Applicant
And
THE PUBLIC HEALTH & SOCIAL DEVELOPMENT SECTORAL BARGAINING COUNCIL	First Respondent
SAMUEL BARON, N.O.	Second Respondent
SHAMEEL ALEXANDER	Third Respondent

Heard: 4 July 2024

Date of Judgment: This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down judgment is deemed to be 10h00 on 24 July 2024

Summary: condonation granted due to public interests- - application to review award – award reviewed – arbitrator’s decision found to be one that a reasonable decision-maker could not reach – arbitrator misconstrued the evidence and failed to appreciate the seriousness of the employee’s actions – employee’s actions found to be deplorable, reprehensible and being a threat to young and vulnerable students – employee brought his employer’s name into disrepute.

 

JUDGMENT

 

DE KOCK, AJ

 

Introduction

 

[1]  This matter concerns an application by the applicant (hereafter referred to as “DoH”) to review and set aside an arbitration award given by the second respondent (hereafter referred to as “Baron”) in his capacity as a panellist of the Public Health & Social Development Sectoral Bargaining Council (hereafter referred to as “PHSDSBC”). The application has been brought in terms of section 145 of the Labour Relations Act[1] (‘LRA’).

 

[2]  The matter arose from the alleged unfair dismissal of the Third Respondent (hereafter referred to as “Alexander”) for allegations of misconduct. The arbitration proceedings were arbitrated by Baron. Baron, following the conclusion of the arbitration proceedings, issued an award dated 1 April 2022 wherein he found that Alexander’s dismissal was substantively unfair. Baron ordered the DoH to reinstate Alexander on the same or similar terms and conditions of employment that governed the employment relationship prior to Alexander’s dismissal on 7 October 2021. It was further ordered that Alexander must report for duty on 13 April 2022, and that the DoH must pay to Alexander back pay in the amount of R101,901.85 by no later than 1 May 2022. It is this determination that gave rise to the current review application.

 

[3]  The review application was not filed within the 6-week period, as is required by the LRA. The DoH applied for condonation, which was opposed. Both parties addressed the application for condonation in their respective heads of argument. I am therefore required, before considering the review application, whether to condone the late filing of the review application. The opposed application for condonation, and the review application were heard on 4 July 2024.

 

Relevant legal principles: Condonation

 

[4]    In Steenkamp and others v Edcon Ltd[2] the Constitutional Court reaffirmed that granting condonation must be in the interest of justice and it referred with approval to its decision in Grootboom v National Prosecuting Authority and Another[3].

 

“[36]   Granting condonation must be in the interest of justice. This Court in Grootboom set out the factors that must be considered in determining whether or not it is in the interests of justice to grant condonation:

 

‘[T]he standard for considering an application for condonation is the interests of justice. However, the concept ‘interests of justice’ is so elastic that it is not capable of precise definition. As the two cases demonstrate, it includes: the nature of the relief sought; the extent and cause of the delay; the effect of the delay on the administration of justice and other litigants; the reasonableness of the explanation for the delay; the importance of the issue to be raised in the intended appeal; and the prospects of success. It is crucial to reiterate that both Brummer and Van Wyk emphasise that the ultimate determination of what is in the interests of justice must reflect due regard to all the relevant factors but it is not necessarily limited to those mentioned above. The particular circumstances of each case will determine which of these factors are relevant.

 

It is now trite that condonation cannot be had for the mere asking. A party seeking condonation must make out a case entitling it to the court’s indulgence. It must show sufficient cause. This requires a party to give a full explanation for the non-compliance with the rules or the court’s directions. Of great significance, the explanation must be reasonable enough to excuse the default.

 

The interests of justice must be determined with reference to all relevant factors. However, some of the factors may justifiably be left out of consideration in certain circumstances. For example, where the delay is unacceptably excessive and there is no explanation for the delay, there may be no need to consider the prospects of success. If the period of delay is short and there is an unsatisfactory explanation but there are reasonable prospects of success, condonation should be granted. However, despite the presence of reasonable prospects of success, condonation may be refused where the delay is excessive, the explanation in non-existent and granting condonation would prejudice the other party. As a general proposition the various factors are not individually decisive but should all be taken into account to arrive at a conclusion as to what is in the interests of justice.[4]

 

[37]  All factors should, therefore, be taken into account when assessing whether it is in the interests of justice to grant or refuse condonation.”

 

[5]  In Colette v Commission for Conciliation, Mediation and Arbitration and others[5], expounding the principles applicable when dealing with a condonation application, the Labour Appeal Court stated that:

 

“There are overwhelming precedents in this Court, the Supreme Court of Appeal and the Constitutional Court for the proposition that where there is a flagrant or gross failure to comply with the rules of court condonation may be refused without considering the prospects of success. In NUM v Council for Mineral Technology, it was pointed out that in considering whether good cause has been shown the well-known approach adopted in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532C-D [also reported at [1962] 4 All SA 442 (A) – Ed] should be followed but:

 

“(T)here is a further principle which is applied and that is that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without good prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused.”

 

[6]  In Food and Allied Workers’ Union obo Gaoshubelwe v Pierman’s Pantry (Pty) Ltd,[6] and in emphasising the importance of expeditious resolution of disputes, the Court said the following:

 

“[187] Our courts have, on occasion, pronounced on the importance of labour disputes to be conducted with expedition. For example in National Research Foundation the Labour Court held:

 

“It is now trite that there exists a particular requirement of expedition where it comes to the prosecution of employment law disputes…”

 

[7]  In South African Transport and Allied Workers Union v Algoa Bus Company (Pty) Ltd and others[7] it was held that:

 

“The third respondent had an obligation to explain the full extent of the delay. It did not. It omitted essential dates and left portions of the delay unaccounted for… The absence of reasonable explanation for inordinate delay constitutes sufficient grounds for the refusal of a condonation application.”

 

[8]  In MEWUSA obo Mahatole and Others v F and J Electrical[8] it was held that:

 

“[20]   I appreciate that if the applicants were ultimately successful if the matter was allowed to proceed they are being prejudiced by the proceedings being curtailed, whereas the respondent faces the prospect of defending a dismissal seven years after the event. It is an inherent risk of failing to obtain condonation for the late referral of disputes that applicants will not have their dispute ventilated before an independent forum. That is always an important consideration. However, while the LRA provides remedies for unfair dismissal those remedies must be invoked timeously. Once a party is late it should make every effort to ensure that the lateness is not prolonged. It cannot be expected that respondents must patiently wait for an indefinite period until applicants take all the necessary steps to finalise their referrals. As much as the applicants are prejudiced by forfeiting the independent adjudication of their dispute, respondents are prejudiced by the lack of timeous finality.”

 

[9]  In Melane v Santam Insurance Co. Ltd[9] Holmes JA held as follows:

 

“In deciding whether sufficient cause has been shown, the basic principle is that the court has a discretion to be exercised judicially upon a consideration of all the facts and, in essence, is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefore, the prospects of success, and the importance of the case. Ordinarily these facts are inter-related; they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion…”

 

[10]  In applying the ration in Melane, the court in Academic and Professional Staff Association v Pretorius NO and Others,[10] summarised the principles for consideration as follows:

 

“The factors which the court takes into consideration in assessing whether or not to grant condonation are: (a) the degree of lateness or non-compliance with the prescribed time frame; (b) the explanation for the lateness or the failure to comply with the time frame; (c) prospects of success or bona fide defence in the main case; (d) the importance of the case; (e) the respondent’s interest in the finality of the judgment; (f) the convenience of the court; and (g) avoidance of unnecessary delay in the administration of justice…

 

It is trite law that these factors are not individually decisive but are interrelated and must be weighed against each other. In weighing these factors for instance, a good explanation for the lateness may assist the applicant in compensating for weak prospects of success. Similarly, strong prospects of success may compensate the inadequate explanation and long delay.”

 

[11]  In NUMSA and another v Hillside Aluminium[11] Murphy AJ held that an unsatisfactory explanation for any period of delay will normally be fatal to an application, irrespective of the applicant’s prospects of success.

 

[12]  I will now consider the various factors relevant to an application for condonation, as per the pleadings and the parties’ respective arguments.

 

Degree of lateness

 

[13]   The arbitration award was served on the DoH on 5 April 2022. The review application ought to have been brought on or before 17 May 2022. However, the review application was launched on 3 August 2022. The DoH’s heads of argument incorrectly refers to 26 August 2022. I am satisfied that the review application was served and filed on 3 August 2022.

 

[14]   The review application was brought approximately 68 days late. The degree of lateness is not insignificant, especially considering that the very nature of a review application is urgent in its own right. Any non-compliance with the statutory period in which review applications must be brought must be met with a very good explanation for the delay, and with good prospects of success. The consideration of natural justice, which include the public interests, must also be found to be in favour of granting condonation for a lengthy delay.

 

Explanation for the delay

 

[15]  The DoH states that the arbitration award was received on 1 April 2022. The DoH, on 21 April 2022 commenced the appointment process of appointing counsel to deal with the matter. This process involved sending out bidding forms to bidders. Bidding forms were sent to numerous advocates, but only two advocates responded with their respective quotations in response to the bidding forms. The DoH submits that according to the Briefing Committee (BACOMM) at least three quotations from counsel need to be submitted.

 

[16]   On 6 May 2022, bidding forms were sent to three more counsel, but as at 25 May 2022 only one provided a quotation. On 31 May 2022 the mandatory checklist completed by the attorney and the deputy state attorney had to be amended to make provision for all the quotations to be on one page instead of separate documents for each service provider. The amended checklist needed to be signed by both the attorney and the deputy state attorney before it could be submitted to the BACOMM. The bidding process was therefore effectively completed end of May 2022, and Adv. Qhawe Maxongo was recommended and briefed accordingly. On 7 June 2022 the DoH representative and its legal representative consulted with counsel for the first time. The DoH submits that there was no wilful delay in bringing these proceedings.

 

[17]   The explanation for the delay, as per the founding affidavit, is a poor explanation. The state attorney must have known that the review application was due to be delivered on or before 17 May 2022. Despite this knowledge, the process of appointing counsel only commenced on 21 April 2022. No explanation is given why the state attorney waited some 21 days before commencing the process. The DoH does not state when the quotations from the two advocates were received. Further bidding forms were sent on 6 May 2022, and on 25 May 2022, only one advocate provided a further quotation. The DoH, or the state attorney as the case maybe, allowed the 6-week period to expire on 17 May 2022 whilst waiting for more quotations.

 

[18]   The question that I must ask myself is whether it is an acceptable excuse for the state attorney to fail to comply with 6-week period due to them having to comply with their own internal process of appointing counsel. This surely cannot be found to be acceptable. The state attorney could have drafted at the very least a very brief Notice of Motion and accompanying founding affidavit and could have launched the review application to ensure compliance with the 6-week period. The DoH had the right, once the record had been delivered, and the recordings been transcribed, to deliver a supplementary affidavit and to amend the Notice of Motion after counsel had been appointed following compliance with the internal requirements. I therefore do not accept that that the reason for the delay from 1 April 2022 to 25 May 2022 is an acceptable, or a reasonable explanation.

 

[19]   This however is not the end of the unreasonable explanation provided for the delay. It was only on 31 May 2022 that the mandatory checklist was amended, and the bidding process was effectively completed at the end of May 2022. The DoH’s representatives and its legal representative consulted with counsel on 7 June 2022. It is to be noted that at the time of the consultation, the 6-week period was already exceeded by 20 days.

 

[20]   There is no explanation in the founding affidavit why it then took until 3 August 2022, i.e. another delay of 45 days to launch the review application. It is simply unacceptable, to say the least, for a party seeking indulgence from this Court to condone its late filing of the review application to provide such a poor explanation for a lengthy delay, and to rely on its own internal procedures to explain the initial part of the delay.

 

[21]   Given the case law referred to above and given the discretion that I have in considering an application for condonation, I would normally have the right to refuse to grant condonation based on the lengthy delay, and the poor explanation for the delay. I am not necessarily compelled to look at prospects of success, the public interests, and the interests of justice. I am however also not precluded from considering these further factors, despite the lengthy delay and the poor explanation for the delay. I have a discretion, and this discretion must be exercised judicially.

 

[22]  I am of the view that in a matter such as this one, where public interests come into play, i.e. young nursing students attending college and being subjected to WhatsApp messages with a sexual undertone (I will revert hereunder to whether the WhatsApp messages were with a sexual undertone or with explicit sexual intent), and being actively courted to the extent of being invited to Alexander’s house, I must consider the DoH’s prospects of being successful with the review application.

 

Prospects of success

 

[23]  Once again, the DoH fails to specifically address prospects of success, under a separate heading, in the founding affidavit. One would expect that the DoH, represented by the state attorney’s offices and counsel, would have done more to address the prospects of success as a separate heading, rather than expecting this Court to look at the grounds of review to find prospects of success.

 

[24]   Be that as it may, I have considered the grounds of review, referred to in the same founding affidavit, in considering the prospects of success. It is my finding, as will be elaborated hereunder, that the DoH’s prospects of success are very good. I am also of the view that it is in the public’s interests that condonation be granted, and that the review application be considered to ascertain whether Baron’s award is one that a reasonable decision-maker could not reach. In fact, this is one of those cases where public interests requires that condonation be granted. If it was not for the public interests involved, I would have refused condonation based on the lengthy delay, the poor explanation for the delay, and the DoH’s failure to specifically address prospects of success as part of the condonation application. The public interests in this matter cannot be disregarded due to the DoH’s failure to file the review application within the 6-week period.

 

[25]  I will return to the issue of costs. This Court must show its displeasure with the manner in which the late filing of the review application was handled by the DoH and its representatives so as to avoid similar failures going forward, especially when it comes to complying with statutory time frames in which review applications are to be launched.

 

[26]  I will now proceed to consider the review application.

 

The relevant background

 

[27]  Alexander commenced employment with the DoH on 1 March 2012 and held the position of Senior Administration Clerk at the time of his dismissal. The sanction of dismissal was upheld on 7 October 2021 after an appeal hearing. Alexander was found guilty, and dismissed for the following charges:

 

Charge 1

 

It is alleged that you made yourself guilty of an act of misconduct in that during the period March to April 2021 you brought the name of the Department into disrepute when you sent inappropriate whatsapp messages with sexual undertones to Ms K[…] N[…] who is a student at the George Campus of the WCCN.

 

Charge 2

 

It is alleged that you made yourself guilty of an act of misconduct in that during the period March to May 2021 you brought the name of the Department into disrepute when you sent inappropriate whatsapp messages with sexual undertones to Ms L[…] W[…] who is a student at the George Campus of the WCCN.

 

Charge 3

 

It is alleged that you made yourself guilty of an act of misconduct in that during the period April to May 2021 you brought the name of the Department into disrepute when you sent inappropriate whatsapp messages with sexual undertones to Ms A[…] T[...] who is a student at the George Campus of the WCCN.

 

The arbitration award

 

[28]  Baron identified the issue that he was required to determine to be firstly whether there was a rule in existence prohibiting the sending of WhatsApp messages containing content with sexual undertones. Baron states that if he finds that such a rule exists, he must determine whether Alexander was guilty of the rule. The third issue to be determined is whether the sanction of dismissal was appropriate.

 

[29]  Turning to the charges, Baron states that since the DoH chose to charge Alexander with three charges of bringing its name into disrepute by sending WhatsApp chats with sexual undertones to three students on the campus where he was working, he has to scrutinize whether the chats referred to caused such disrepute to the DoH’s name.

 

[30]   Baron then refers to the evidence and finds that the DoH did not place any evidence before him that the DoH adopted rules that regulates the sending of WhatsApp messages between staff members and students. He finds that, in fact, the Head of the Campus, Ms Burns explicitly testified that no such rules exist, other than that it was, in her view, inappropriate.

 

[31]   Baron finds that the DoH’s representative latched onto the fact that Alexander, in a WhatsApp message to N[...], told her that there is a policy that prohibits relations between staff and students. N[...], understandably, testified that she was not aware of such a policy other than what Alexander told her. Baron finds that the mere fact that Alexander mentioned this to N[...], in an effort to keep the chats secret, probably because he was also chatting with other students at the same time, does not establish policy.

 

[32]   Baron then concludes that there was no known rule in the workplace with regards to the sending of private WhatsApp messages between staff members and the students of whatever nature.

 

[33]   Baron refers to the Disciplinary Code and Procedure for the Public Service (PSCBC Resolution 1 of 2003), which states that the list of possible misconduct by employees is not exhaustive. This means that even if a specific misconduct is not listed, it does not mean that Alexander may not be charged for some misconduct other than what is listed in the Code. This is exactly what the DoH chose to do, although the charge of sexual harassment was open to it.

 

[34]   Baron states that he is thus required to make an objective evaluation as to whether Alexander brought the DoH into disrepute, which would entail, in all the circumstances of the nature of the conduct, evaluating the turpitude and seriousness thereof and then make an evaluation as to whether the charges can be sustained. Baron goes on and state that there can be no doubt that some of the WhatsApp messages sent to the three students, although not explicit and outright depraved, contained a degree of sexual undertones. No explicit invitation to any of the three to engage in sexual relations was mentioned. Although that might have been the ultimate intension, Alexander never said so. Alexander did invite W[...] to a location outside of George where she could unwind and relax, but she did not find such an idea appalling or objected to it. This can be gleaned from the chats, and they never ultimately went on that excursion.

 

[35]   N[...] did accept Alexander’s invitation to go to his house, but she did not testify that Alexander made any sexual advances or placed her in an awkward position. N[...] did, after some two months of chatting, express reservations about the fact that the chats resolved around sex, to which Alexander responded that if she felt uncomfortable with that, they should cease with the chats. Those chats were all sent on 21 March 2021, and no proof was submitted of any chats beyond that date. N[...] testified that she blocked Alexander and that spelled the end of their ‘relationship’.

 

[36]  Baron finds that N[...] did not report the chats to management and referred to her evidence that that she felt tempted by the attention given to her by Alexander, but she could not follow through with that temptation because she had a boyfriend.

 

[37]  Baron finds that W[...] claimed she deleted the WhatsApp messages with sexual content, and that Alexander denied that he sent such messages. The messages that were submitted contain words such as ‘my darling’ and ‘giving her hugs’ because she was not feeling well. Alexander did invite her to a location outside of George. Alexander also told her ‘that she is special’. This, according to Baron, was the sum total of what the DoH regards as ‘inappropriate’ in relation to W[...]. W[...], at the time, did not object to this line of chats. She did mention that Alexander gave her a hug at one point. All W[...] asked Alexander about the going away together was whether his wife was also staying there, to which Alexander responded that he was not married. These chats were never reported to management, and it only came to the fore during general discussions with other students.

 

[38]  In respect of T[...], Baron finds that T[...] seemed to have revelled in the attention given to her by Alexander, and she happily participated in the chats. Her responses were deplete with laughing and happy face emoji’s. At no stage did she tell Alexander that she felt uncomfortable with anything he was saying. She was also invited to Alexander’s house, but she never went there, using an excuse that her boyfriend came to visit, which was not true. She even asked for cell phone data and received it from Alexander. She conceded under cross-examination that the chats were not inappropriate in her view.

 

[39]  The chats between T[...] and Alexander died a natural death. It simply stopped for some or other reason. Although the chats contain some measure of sexual undertones, it was not explicit to the extent of being repulsive. Alexander was very careful and subtle in this regard.

 

[40]  Baron finds that he does not agree with Burn’s contention that the three students were vulnerable and that Alexander as such took advantage of them. N[...] appeared articulate and stated that she although she was tempted, she knew where to draw the line. W[...] already had a child and appeared to know exactly what she was letting herself in for. T[...] used the situation to her advantage and Baron finds that he never got the idea that she was being manipulated into something she was not prepared to do.

 

[41]  The chats further never became common knowledge outside the walls of the campus and management did not attempt to get involved in the saga. It was not posted on the Facebook page of the college. Burn’s evidence that the mother of one of the students expressed concerns was not corroborated. It is true that some of the students formed a guard of honour at the internal disciplinary hearing, but they obviously saw the matter through the perspective of the students only.

 

[42]  Baron therefore finds that, in the end, Alexander did not breach a known rule in the workplace. Assessing the chats objectively, Baron finds that the chats were not explicit to the extent of being repulsive to the average person who would read such. There was no evidence of a complaint registered by a member of the public. Alexander’s actions are not of such a serious nature that it can be said to have brought the DoH into disrepute. It does not equate to “turpitude”, i.e. depravity or based on action of the kind that would bring the DoH into disrepute. Baron thus found Alexander not guilty of the individual charges.

 

[43]  Baron deals with the issue of reinstatement and finds that the DoH failed to lead evidence that would lead to a departure from an order of reinstatement.

 

The test for review

 

[44]  In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others,[12] the Court held that ‘the reasonableness standard should now suffuse section 145 of the LRA’, and that the threshold test for the reasonableness of an award was: ‘…Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?...[13]. In Herholdt v Nedbank Ltd and Another[14] the Court applied this reasonableness consideration as follows:

 

‘… A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to the particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of consequence if their effect is to render the outcome unreasonable.’

 

[45]  This test has thus been applied as a two-stage review enquiry. Firstly, the review applicant must establish that there exists a failure or error on the part of the arbitrator. If this cannot be shown to exist, that is the end of the matter. Secondly, if this failure or error is shown to exist, the review applicant must then further show that the outcome arrived at by the arbitrator was unreasonable. If the outcome arrived at is nonetheless reasonable, despite the error or failure, that is equally the end of the review application. In short, in order for the review to succeed, the error or failure must affect the reasonableness of the outcome to the extent of rendering it unreasonable.

 

[46]  Further, the reasonableness consideration envisages a determination, based on all the evidence and issues before the arbitrator, as to whether the outcome of the arbitrator arrived at can nonetheless be sustained as a reasonable outcome, even if it may be for different reasons or on different grounds.[15] This necessitates a consideration by the review court of the entire record of the proceedings before the arbitrator, as well as the issues raised by the parties before the arbitrator, with the view to establish whether this material can, or cannot, sustain the outcome arrived at by the arbitrator. In the end, it would only be if the outcome arrived at by the arbitrator cannot be sustained on any grounds, based on the material, and the irregularity, failure or error concerned is the only basis to sustain the outcome the arbitrator arrived at, then the review application would succeed.[16]

 

[47]  I will now proceed to consider the review application by the applicant against the above principles and test applicable to review applications.

 

Grounds of review

 

[48]  The DoH raises five grounds of review in its pleadings. The first ground of review is that Baron erred in stating that “the point of departure should be whether the Respondent [the Applicant herein] adopted rules that regulates the sending of such WhatsApp messages [with sexual undertones] between staff members and the students”. The emphasis of the charges is that Alexander is guilty of an act of misconduct in that he brought the name of the DoH into disrepute as a result of his actions. Had Baron commended his analysis by enquiring whether the DoH has adopted rules that state that bringing the DoH’s name into disrepute amounts to an act of misconduct, then he would have arrived at a completely different outcome.

 

[49]   The DoH refers to the Disciplinary Code and states that the list of different examples of misconduct is not exhaustive. Baron correctly regarded “bringing the name of the Department into disrepute”…” as a possible act of misconduct in the non-exhaustive list, despite it not being expressly named. Baron however erred in that he placed emphasis on whether there was a rule that regulates the sending of WhatsApp messages with sexual undertones to students by a staff member rather than whether there is a rule that recognised the act of bringing the name of the DoH into disrepute. Baron thus watered down the enquiry as he approached it from the wrong perspective. There need not be such a rule in order for Alexander to bring the name of the DoH into disrepute.

 

[50]   The second ground of review is that Baron misdirected himself when he disregarded Burn’s evidence in which she testified that the mother of one of the victims expressed concerns surrounding the actions of Alexander simply because it was not corroborated. Baron at no stage called Burn’s credibility into question and as such ought to have placed sufficient weight on her testimony.

 

[51]   The third ground of review is that Baron failed to consider and apply his mind, and place sufficient weight on, the material fact that the three students, the members of the SRC (and students that signed the letter marked “DOH10”) and all the first year students (and all other students that had knowledge of the content of the inappropriate WhatsApp messages with sexual undertones) that formed a guard of honour at the internal disciplinary hearing are not Government employees and/or employed by the DoH and thus brought the name of the DoH into disrepute to them. Baron therefore erred in finding that the messages never became known to the public and could not have brought the name of the DoH into disrepute.

 

[52]  The fourth ground of review is that Baron failed to apply his mind and place sufficient weight on the fact that Alexander is an employee of the DoH and a senior member of staff. As such, it is expected that he acts professionally at all times and has professional dealings with the students. Due to his position, Alexander is in a position of trust. Baron, in failing to place sufficient weight on these considerations, disregarded the following evidence:

 

N[...]’s testimony that Alexander “acted differently” and “was unprofessional” after he ostensibly realised that she did not want to sleep with him;

 

W[...]’s testimony that his messages were “inappropriate and made her feel uncomfortable” and that it was “unprofessional” on his part;

 

T[...]’s testimony that the messages “made her feel uncomfortable” and were “inappropriate”;

 

Kiewitts testimony (by means of annexure “DOH10”) in which she states that Alexander “cannot be trusted to work with students”.

 

[53]  The testimony of the students, in the light of the fact that Alexander is an employee of the DoH, clearly demonstrates that he brought the name of the DoH into disrepute.

 

[54]   The fifth ground of review is that Baron erred in finding that Alexander’s messages, considered as a whole in the circumstances, were not repulsive to the average person who would read such and that Alexander’s actions are not of such a serious nature in that it can be said that he brought the name of the DoH into disrepute. Baron also erred in finding that the messages sent by Alexander, in the circumstances, do not equate to “turpitude”.

 

[55]   The DoH concludes by stating that Baron committed a gross irregularity in the conduct of the arbitration proceedings and that it cannot be said that the arbitration proceedings have been fair. There was not a fair trial of the issues. The DoH also states that Baron reached a decision that a reasonable decision maker could not reach.

 

Analysis of the grounds of review

 

[56]  In analysing the grounds of review, the parties’ respective heads of argument, and perusing the transcribed record and documentary evidence presented during the arbitration proceedings, I will first and foremost deal with Baron’s finding that there was no policy that a staff member is not allowed to send messages to students with a sexual undertone. When one looks at the nature of the messages, which I will refer to below, I do not think referring to the messages as being with a sexual undertone is correct. The messages placed before Baron was explicit about wanting to make love, condoms, having a student for breakfast, and the like. These are not messages of a sexual undertone. They are messages wherein Alexander made his intention to have sex very clear. How this can be said to be messages with a sexual undertone, rather than messages of direct and explicit intent to have sex with the students is quite disturbing.

 

[57]   Sexual suggestiveness is visual, verbal, written or behavioural material or action with sexual undertones implying sexual intent in order to provoke sexual arousal. These messages did not contain sexual undertones to imply sexual intent. Sexual intent was explicit in these messages. Sexual undertone is a gesture that can be taken as casual but also sexual or can be something you say that could be applicable to sex, but it is not openly talked about as so. In this case, as I stated already, Alexander made his intention to have sex very clear. Therefore, the messages were not messages with sexual undertones, but messages expressing Alexander’s intention to have sex. This was his ultimate goal and objective in sending the messages.

 

[58]  Although I do accept that the charges refer to message with sexual undertone, this does not prohibit this Court from forming its own opinion whether the messages were of a sexual undertone, or with explicit intention to have sex. I will therefore evaluate this review application based on what the messages were, rather than be bound with an ill-founded charge of being messages with a sexual undertone.

 

[59]   Baron’s finding that these messages contain a degree of sexual undertones, and were not explicit and outright depraved, is not supported by the evidence. In fact, Baron finds that no explicit invitation to any of the three students to engage in sexual relations was mentioned in the chats by Alexander. Baron also finds that although that might have been the ultimate intention of Alexander, he never said so. I fail to understand how such a conclusion could be reached by Baron when the WhatsApp messages between inter alia N[...] and Alexander contain that very intention. Baron either failed to appreciate the evidence before him, or he completely misconstrued the evidence as to what Alexander said in his messages to inter alia N[...]. Or Baron failed to apply his mind to the evidence and came to a finding that was clearly contradicted by the evidence placed before him.

 

[60]   I will refer to only some extracts of the WhatsApp messages between Alexander and N[...] to illustrate this point. Alexander’s messages include the following references:

 

Say for instance you are coming to sleep over and we are half naked in bed and making love or enjoying each other.

 

Or is it that what you said its still a long time to go down that road.

 

The need of me that cannot resist you or will be able to let you go without tasting your lips and going to bed with you on my mind after you leave and you going to bed with a smile on your face thinking about Mr Alexander. And what if the need does arise, will you still say the same.

 

No pressure and there will be many more nights and days to spend half naked together in the bedroom and where ever you want us to be naked.

 

Lol, no one even knows I am watching you or trying to get you in my arms.

 

Jeez, I have to try by all means to abstain. Please, if we start with making love I will make sure there is enough condoms, and we don’t go till the end without condoms.

 

And after that I will have you for breakfast in bed... they say early morning sex is the best don’t know do you know.

 

I know tomorrow is not worthwhile but the next time will be when you sleeping over and we are having a nice dinner, you as desert and sleeping half naked or totally naked next to each other.

 

And don’t I even turn you on or bringing that sexual feeling.

 

Lol and you will have to forgive me but when I am at home I wear shorts without underwear because I am comfortable without them at home.

 

Hope it will be about me making love to you in your dreams.

 

You really want my hormones again to start so early in the morning.

 

I even thought now of getting protection just in case something happens we are covered I just meaning if something happens, I know how you feel about the first date tonight but still just to be extra safe.

 

[61]   On a clear reading of these messages, it is beyond any reasonable comprehension that Baron could have arrived at the finding that he did. The messages were sent with the specific intention by Alexander to have sex. The messages were not messages with sexual undertone, but messages with the clear intention to have sex.

 

[62]   This then brings me to Baron’s finding that there was no policy prohibiting staff members to send messages of a sexual undertone, which have now been clarified as some messages with clear intent, to students. It is immaterial whether the Code makes specific reference to such a rule or not. Not all acts of misconduct must be stated in a Code to constitute an offence. The Code in any event clearly states that the list is not exhaustive. Sending messages with sexual undertone, or messages with clear intention to have sex, from a senior staff member to students does not have to be stated to be an offence. It is fair to accept that any reasonable person in the position of Alexander knew, or ought to have known that such actions would constitute an offence. In any event, Alexander knew this to be the case, as he stated in one of his messages that there is a policy that prohibits a staff member to have a relationship with a student. Alexander knew that his actions are unacceptable, and he did his best to avoid being seen with a student even if it was after hours in a pub. Despite this knowledge, he engaged students with messages with a clear intention to ultimately have sex with them. These messages amount to turpitude, depravity, and were completely reprehensible coming from a senior member of staff towards students.

 

[63]   Baron’s finding therefore that there was no rule in the workplace prohibiting the sending of messages with a sexual undertone is one that a reasonable decision maker could not reach. Insofar as Baron found that the chats were not explicit to the extent of being repulsive to the average person who would read such, this is clearly incorrect. This Court, in reading the chats, found the chats to be very explicit to the extent of being repulsive behaviour and actions by a senior staff member towards students who have enrolled at the college. These students were still young females who resided at the college premises at George, far away from their homes. These students are sent to the college by their parents, and their parents must surely trust that employees working for the DoH at the college will not abuse their positions to lure the students into the ultimate goal of wanting to have sex with them, as Alexander did in this case.

 

[64]   Baron, after finding that Alexander did not breach a known rule in the workplace, which I already found not to be rationally connected to the evidence, finds that Alexander’s actions are not of such a serious nature that it can be said to have brought the DoH into disrepute. Baron supports his finding that there was no evidence of a complaint registered by a member of the public, that the chats never became common knowledge outside of the walls of the campus, management did not attempt to get involved in the saga, and the chats were not posted on the Facebook page of the college. Barons finds further that Burn’s evidence of the mother who expressed concerns was not corroborated, and that some of the students formed a guard of honour at the internal disciplinary hearing but added that they obviously saw the matter through the perspective of the students only.

 

[65]   I find this finding of Baron to be completely illogical, unreasonable, and being in direct contradiction of the evidence that was presented during the arbitration proceedings. It was not necessary for the chats to be placed on the Facebook page of the college before it can be said that Alexander’s actions brought the DoH into disrepute. In fact, there was no need for the contents of the messages to become known outside the walls of the college to constitute an act of bringing the DoH into disrepute. Alexander’s actions brought the DoH into disrepute with the students who were studying at the college. These students are not employees of the DoH. They are members of the public who enrolled at the college to study. When a senior member of staff behaves in the manner that Alexander did towards at least three students, during the same time period, and this becomes known by other students then the only logical and reasonable conclusion that can be drawn is that Alexander brought the DoH into disrepute.

 

[66]   Baron seems to have rejected Burn’s evidence because it was not corroborated. The DoH however submitted that there was no reason to reject Burn’s evidence, as Baron did not find Burn not to have been a credible witness. There was no reason to reject this evidence simply because it was not corroborated. Then there was also the evidence that the students formed a guard of honour at the internal disciplinary hearing. Whether they saw the matter through the perspective of the students only is immaterial. The students were made aware, or got to know about Alexander’s actions, and they expressed themselves, as students of the college, in support of the three students and in opposition to what Alexander was accused of. This was sufficient evidence that Alexander brought the DoH into disrepute.

 

[67]  Baron further seems to have completely disregarded the evidence of the SRC president, D Kivitts during the arbitration proceedings, as well as the letter by various members of the SRC George campus dated 13 September 2021. Although this letter was sent after Alexander was found guilty, the contents are crucial to the issue of Alexander being allowed to return to the college. They raised their concerns in the interests of the well-being of the student population at the campus. They raised the fact that Alexander was previously charged, in 2019, with sexual harassment and found not guilty due to unprocedural issues relating to the implementation of the sexual harassment policy of the DoH. They state that Alexander cannot be allowed to return to the campus as he poses a serious threat to the young and vulnerable students and that he cannot be trusted to work with the students. Notwithstanding these valid concerns, Baron deemed it appropriate to reinstate Alexander in the very same college where he is expected to provide a service to students.

 

[68]   Baron’s finding that Alexander’s actions did not bring the name of the DoH into disrepute, based on the evidence presented and especially with reference to the young and vulnerable students attending the college is a decision that a reasonable decision maker could not reach. Alexander’s actions in courting, by way of messages which started very neutral and then escalating to messages of sexual intent, or sexual undertones at the very least, with at least three students during the same time period can only be regarded as actions bringing the DoH into disrepute with its students. I have already found above that Alexander’s actions were reprehensible, explicit, and unacceptable especially from a senior staff member to young and vulnerable students.

 

[69]   One only has to look at the manner in which Alexander approached N[...]. She approached him for assistance with finding a doctor, as this was part of his responsibilities. Alexander used this opportunity, after being approached for assistance to find a doctor, to start messaging her after hours and ultimately inviting her to his house and indicated his intention to have sex with her. Alexander abused his position of trust by actively pursuing N[...] with the intention of having sex with her. The nature of the messages was somewhat innocent at first, but very quickly escalated to messaged wherein he expressed his intention and desire to have sex with her. This evidence was completely overlooked by Baron.

 

[70]  Although I have based my decision with references to Ngumombi, I am satisfied that Baron should equally have found Alexander guilty of the charges relating to L W[...] and A T[...]. Alexander’s actions towards them clearly shows what his ultimate goal and objectives were, and his actions were reprehensible and in direct breach of what was expected from him as a senior member of staff at the college, whose duties included interacting with and assisting students at the campus.  

 

[71]   Baron’s award therefore must be reviewed and set aside. It is shocking that Baron found that someone like Alexander, who abused his position at the college to target students and to lure them with the ultimate goal of having sex, to be reinstated and be put in a position where he can continue with his actions. Alexander failed to acknowledge that his actions were wrong, and with this award not being reviewed and set aside, nothing will prohibit Alexander to continue with his behaviour and actions. This Court cannot allow someone who fails to acknowledge any wrongdoing to be placed back into an environment where there are young and vulnerable students who he can take advantage of.

 

Costs

 

[72]  In terms of the provisions of section 162(1) of the LRA, I have a wide discretion when it comes to the issue of costs. I am mindful of the dictum of the Constitutional Court in Zungu v Premier of the Province of Kwa-Zulu Natal and Others[17] when it comes to the issue of costs in employment disputes. In the matter before me, both parties sought costs.

 

[73]  I would have ordered Alexander to pay the DoH’s costs. Given the DoH’s late referral of the review applications, and the comments I made above regarding its failure to bring a proper application for condonation, and that condonation is granted due to the prospects of success and the public interest in this matter, I will refrain from making any order as to costs. The DoH failed in its duties to launch the review proceedings within the 6-week period, and its failures could have had a very serious impact on the DoH’s responsibility towards the students at the George campus.

 

[74]  In the premises, I make the following order:

 

Order

 

1.  The arbitration award is reviewed and set aside.

 

2.  Alexander’s dismissal was substantively fair, and he is not entitled to any relief.

 

3.  This judgment must be brought to the attention of the General Secretary of the Public Health & Social Development Sectoral Bargaining Council to take appropriate action to ensure that the Council’s panellists are properly equipped and able to arbitrate disputes such as this one.

 

4.  The judgment must also be brought to the attention of the Director-General of the Department of Health to ensure that proper measures are put in place to avoid non-compliance with statutory time frames by its representatives and to be placed in a position where an application to review a clearly unreasonable award, which involves the public interest, is not dismissed due to non-compliance.

 

5.  No order is made as to costs.

 

C de Kock

Acting Judge of the Labour Court of South Africa

 

Representatives:

 

For the Applicant:	Adv Maxongo
Instructed by:	State Attorney (Ms Melapi)
For the Respondents:	R Henricks
Instructed by:	Parker Attorneys

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