Are employers' responsibilities to act against GBV limited to the workplace?

Image source: cottonbro studio from Pexels

A recent case between Mtsewu and Anglo American Platinum, in the Commission for Conciliation, Mediation and Arbitration (CCMA) in Polokwane highlights an employer’s responsibility to protect its workforce against all forms of violence, including domestic violence and GBV.

Facts

Mhlangabezi Mtsewu was employed by Anglo American Platinum (Dishaba Mine) (company) as a mining team supervisor until his dismissal for misconduct on 13 September 2023. Mtsewu was found to have breached the company’s domestic violence policy, and to have conducted himself in a manner that was not aligned with the company’s values when he committed GBV against a fellow female employee, with whom he had a romantic relationship. The employee, Nontsikelelo Vava, died following the incident and Mtsewu was arrested.

Mtsewu referred an unfair dismissal dispute to the CCMA alleging that his dismissal was procedurally and substantively unfair.

Procedural fairness

On 5 September 2023 upon his release on bail, Mtsewu was issued a notice requiring him to make representations on why he should not be dismissed. This was in line with the company’s behavioural procedure, which provides for a disciplinary process to be conducted in writing.

The company had also provided Mtsewu with a further opportunity to state his version in a disciplinary hearing and to make mitigation submissions. Mtsewu was represented by his trade union, the Association of Mineworkers and Construction Union (Amcu) at all material times.

GBV, NPA Bills signed into law

27 May 2024

Mtsewu submitted his written representations on 8 September 2023 and his mitigating submissions on 12 September 2023, with the assistance of Amcu’s chairperson and secretary. He conceded that he was given an opportunity to ask questions before signing the written statement, but claimed he had signed under compulsion, disagreed with the contents and was not given the opportunity to state his full version as he was deceived by Amcu. Nonetheless, Mtsewu conceded that the company gave him an opportunity to state his version prior to his dismissal.

The Commissioner found that Mtsewu’s dismissal was procedurally fair as he was afforded the opportunity to state his version, represented by his trade union and in line with the company’s policies and procedures.

The Commissioner’s procedural finding serves as a reminder of the Labour Court’s judgment in Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation Mediation and Arbitration and Others, that the management of discipline ought not to be encumbered by formalistic and rigorous processes that border on criminal proceedings.

In this regard, employers are encouraged to adopt policies and procedures that enable them to dispense with disciplinary issues in a fair yet expedited manner, in line with the objectives of the Labour Relations Act 1995 (LRA) and guided by the Code of Good Practice: Dismissal.

Substantive fairness

Mtsewu’s contention was that his dismissal was substantively unfair as there was no link between the incident and the company since the alleged misconduct occurred outside of the workplace and outside of working hours.

In short, Mtsewu’s version of events was that the couple had been drinking one evening at Vava’s place of residence following a Marikana commemoration event; Mtsewu pushed Vava, and she fell, losing consciousness.

This version was, however, inconsistent with the evidence of a medical officer who conducted the postmortem on Vava. According to the medical officer, Vava had sustained grievous bodily injuries that were visible upon observation, as well as internal injuries that demonstrated a violent attack while she was still alive, including strangulation, blunt force trauma to the head, and broken ribs. The medical officer testified that the injuries sustained by Vava could not have been as a result of a fall following a slight push but were consistent with a case of GBV.

New Durban court offers online protection order applications

26 May 2021

Mtsewu could not explain some of the injuries and did not dispute the medical officer’s evidence.

The company also led the evidence of another employee and Vava’s son, who both testified to the physically abusive nature of the relationship between Mtsewu and Vava.

The company argued that it had an interest in the matter, as both Mtsewu and Vava were its employees, and all its employees are required by the behavioural procedure to conduct themselves in accordance with what the company expected from them.

The company takes a zero-tolerance approach to GBV. In line with its domestic violence policy, it had invested extensive efforts in educating its workforce about domestic violence and GBV as a preventative measure, and to ensure the safety of all its employees.

Mtsewu attended induction training which included the topics of bullying and harassment and GBV on 8 February 2022 as well as refresher training on GBV, among other things, on 2 August 2023, two weeks before the incident took place, as evident from the attendance registers before the Commissioner.

The Commissioner considered the judgment of the Labour Appeal Court in Hoechst (Pty) Ltd v Chemical Workers Industrial Union & Another in which the Court held that an employer is not precluded from disciplining employees for misconduct that occurs outside the workplace in appropriate circumstances.

Based on the evidence led by both the company and Mtsewu, she found that Mtsewu was aware of the company’s domestic violence policy and had not disputed the evidence on the company’s efforts to educate its workforce about GBV. On a balance of probabilities, the Commissioner found that Mtsewu had committed GBV and, by doing so, he had contravened the company’s policy and had not acted in line with the company’s values.

What role do employers have in eradicating gender-based violence?

Johan Olivier and Siya Ngcamu  13 Oct 2022

As for the pending criminal proceedings, the Commissioner clarified that employers are not prevented from conducting disciplinary proceedings pending a criminal case against an employee, as the two processes are distinct and employ different standards of proof.

In terms of the company’s policy, Mtsewu’s conduct was a dismissible offence, which was not disputed. The Commissioner further considered that the trust relationship had irretrievably broken down, making continued employment intolerable.

Having considered all the surrounding circumstances, particularly the nature of the misconduct and the fact, among others, that Vava’s son had been taken into the company’s employ, the Commissioner found that the sanction of dismissal was appropriate.

The Commissioner accordingly found Mtsewu’s dismissal to be both procedurally and substantively fair.

Key takeaways

There are some key takeaways that employers can learn from this case, and the company’s efforts in GBV awareness and prevention. For example:

• Employers ought to have disciplinary mechanisms that enable them to deal fairly and expeditiously with discipline, such as allowing employees to make written representations.
• Employers are obliged, in terms of the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (Code), to have policies addressing all forms of harassment, including GBV, and to ensure that its workforce is trained on such policies. It is imperative to ensure accurate record keeping of such training and to conduct refresher sessions at appropriate intervals.
• In terms of the Employment Equity Act 1998, read with the Code, employers are obliged to act when they become aware of instances of harassment, including domestic abuse, to ensure the well-being of the workforce. In this regard, employers are not precluded from pursuing disciplinary action pending criminal proceedings and may be obliged to take action even where conduct takes place outside of the workplace or when employees are off-duty.
• Employers in the mining industry should also be aware of their obligations in terms of the new Guidance Note for the Management of GBVF, Safety and Security Challenges for Women in the South African Mining Industry, which took effect on 1 November 2024.