University of Venda v M (JR2125/13) [2017] ZALCJHB 72(2017) ILJ 1376 (LC) (28 February 2017) per Sean Snyman AJ.

“Even if it can be said, as the [arbiter] suggests, that in the case of T she should not have told the [lecturer] in response to his suggestion of sexual favours for marks, that she ‘would think about it’, this cannot change what the [lecturer] did.

T testified that she said this because she was ‘traumatised’.  It is my view that in the context of the authorities referred to above, this kind of reaction by T would be a natural reaction [by] on the part of a young student confronted with such an unwanted proposition by her lecturer directly responsible for her success in a course, and is tantamount to trying to escape from the situation instead of incurring the ire of her harasser by expressly rejecting the advance”. [para 73]

LC summary:

  • CCMA arbitration proceedings – Review of proceedings, decisions and awards of arbitrators – Test for review – Section 145 of LRA 1995 – application of review test set out – determinations of arbitrator compared with evidence on record
  • Evidence – evaluation thereof by arbitrator – arbitrator failing to make any credibility findings of witness testimony – constituting irregularity – issue of credibility of witnesses considered
  • Evidence – evaluation and determination thereof – no proper assessment of probabilities – approach of arbitrator irregular – proper probabilities considered
  • Dismissal – sexual harassment – principles considered and applied – complainants sexually harassed by employee – dismissal fair in the circumstances
  • Review of award – conclusion of arbitrator irregular and unreasonable – arbitration award reviewed and set aside – substituted with award that dismissal fair
  • Cross review – time limit for filing the cross review – principles considered – cross review materially late – no proper case for condonation made out – cross review dismissed

Excerpt

[2]   This matter has as its origin the dismissal of the first respondent by the applicant for misconduct relating to what can readily be described as sexual harassment, which dismissal the first respondent pursued as an unfair dismissal dispute to the third respondent. This dispute came before the second respondent for arbitration on 27 May and 12 to 14 August 2013.  Following the conclusion of the arbitration proceedings, and in an arbitration award dated 27 August 2013, the second respondent found in favour of the first respondent, and determined that the dismissal of the first respondent by the applicant was procedurally fair, but substantively unfair.

The second respondent directed that the first respondent be reinstated with retrospective effect to the date of his dismissal, and be paid back pay of R420 000.00, being an amount equivalent to 12(twelve) months’ salary.

It is this award of the second respondent that then gave rise to this review application brought by the applicant.