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[2020] ZALAC 49
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Solidarity obo Kruger v Transnet SOC Ltd t/a Transnet National Ports Authority and Others (DA17/2019) [2020] ZALAC 49; [2021] 5 BLLR 484 (LAC); (2021) 42 ILJ 852 (LAC) (1 December 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Reportable
Case
no: DA17/2019
In
the matter between:
SOLIDARITY
obo J
KRUGER Appellant
and
TRANSNET
SOC LTD T/A TRANSNeT NATIONAL
PORTS
AUTHORITY
First Respondent
COMMISSIONER
BHEKI KHUMALO N.O.
Second
Respondent
TRANSNET
BARGAINING COUNCIL
Third
Respondent
Heard:
12 November 2020
Delivered:
1 December 2020
Coram:
Phatshoane ADJP, Kathree-Setiloane and Savage AJJA
Judgment
SAVAGE
AJA
[1]
This appeal, with the leave of this
Court, is against the judgment and order of the Labour Court (Gush
J), delivered on 17 April
2019, in terms of which the application to
review the arbitration award of the second respondent (‘the
arbitrator’),
was dismissed with costs.
[2]
The appellant, Mr James Kruger (‘the
employee’), was employed as a Marine Operations Manager at the
Richards Bay Port
by the first respondent, Transnet National Ports
Authority (‘the employer’). He was dismissed in July 2016
following
an inquiry held by an arbitrator, previously known as a
pre-dismissal arbitration, held in terms of section 188A of the
Labour
Relations Act 66 of 1995 (‘the LRA’) under the
auspices of the third respondent, the Transnet Bargaining Council.
The
arbitrator found in his award, on 12 July 2016, that the employee
had committed a gross dereliction of duty by failing to ensure
the
provision of full marine services on 25 December 2015; and to have
threatened or intimidated the employer’s human resources
and
employee relations managers on 21 January 2016 by stating: “
When
this is over, I am coming to get you
”.
The employee was found not guilty of a third charge related to
dishonesty. Dismissal within ten (10) days of the award
was
determined to be the appropriate sanction. At the date of his
dismissal, the employee had been employed by the employer for
21
years and had a clean disciplinary record.
Relevant
factual background
[3]
In mid-2015, in response to a request
from a client, the employer agreed that limited marine services, in
the form of only one manned
tugboat, would be provided at the
Richards Bay Port on Christmas day. The employee raised a concern
that past practice was that
work on Christmas day was treated as
voluntary and that staffing on the day may be a problem. He escalated
the matter to his superior,
the Senior Marine Operations Manager, Mr
Eugene Rapetti, and a decision was taken that an incentive of R1000
would be paid to employees
who worked.
[4]
On 9 December 2015, the client requested
that full services be provided at the port on Christmas day. The
employee raised employees’
concerns regarding the incentive
payment. In response, on 10 December 2015, he was told to obtain
assistance from the relevant
managers. On 11 December 2015, a roster
was circulated making it clear that there was a shortage of two tug
masters.
[5]
On 21 December 2015, the Chief Harbour
Master responsible for marine services at eight national ports, Mr
Rufus Lekala, instructed
the employee to ensure that full services
were provided on 25 December 2015 at the Richards Bay Port using the
normal duty roster.
This instruction was confirmed by Mr Preston
Khomo, the Port Manager. In response, the employee put a full team
together and issued
an instruction to employees to work. He stapled
the instruction into tugboat engine room logbooks and bridge
logbooks, which was
signed by all staff members, and a copy was put
up on the window of the administrative building where staff clock in
and out. The
employee included a note on the roster that the
instruction was an order and not up for negotiation. In addition,
each member of
the crew rostered to be on duty on Christmas day was
informed that they were instructed to work. The employee sent the
roster to
his seniors, including the Harbour Manager’s office
and the Port Manager, noting that there were no spare staff
available.
A list of all personnel was included to allow Port Control
to phone staff to verify arrangements or in the event that a staff
member
did not report for duty on 25 December 2015.
[6]
On 22 December 2015, the employee had a
discussion with Ms Lungelo Mthethwa, who was rostered to work as Tug
Master on the second
shift from 18h00 on Christmas day. She told the
employee that she considered work on the day to be voluntary. In
response, the
employee instructed her to work on the day.
[7]
Full marine services were provided for
the first shift on Christmas day. However, Ms Mthethwa failed to
arrive for work and the
second shift was unable to work. After the
employee had been made aware of Ms Mthethwa’s absence, he
telephoned her and instructed
her to report for duty. She informed
him that work on the day was voluntary, that she could not attend
work and that she had informed
Port Control of the reasons. The
employee described Ms Mthethwa as somewhat disorientated during the
conversation. He asked human
resources to telephone every other tug
master to ask them to work, without success. As a result, the port
was closed at 18h00 due
to a shortage of crew.
[8]
On 7 January 2016, following his return
from leave, the employee sent a letter to the Port Manager and Acting
Port Manager explaining
the steps he had taken to roster employees
and ensure that they worked on Christmas day. In response to a query
from Mr Lekala
for a “compelling reason” why marine
services were not provided on Christmas day, on 11 January 2016 the
employee confirmed
the contents of the 7 January letter. On 15
January 2016, the employee emailed Ms Winnie Mpanza, the Marine
Technical Manager,
stating that in view of Ms Mthethwa’s
failure to arrive at work as instructed, a statement be obtained from
her explaining
her actions. Ms Mthethwa informed Ms Mpanza on 18
January 2016 that she had not reported for duty as she had had an
asthma and
panic attack on Christmas day, after seeing her sister who
had been kidnapped, raped and nearly killed in mid-October 2015. She
said she had taken sleeping pills for insomnia and was woken up after
18h00 by Port Control asking where she was. Her response
was that she
would not be coming to work as she would “
be
a danger to everyone on the tug
”.
[9]
On 21 January 2016, the employee was
suspended from duty. Mr Sbusiso Dlamini, the employee relations
manager, and Mr Mbuso Shezi,
the human resources manager, in the
presence of Mr Dering Joyce, the Chief Security Officer, served the
suspension notice on the
employee. The employee’s colleague, Ms
Thandeka Khanyile, attended the meeting with him at his request.
Having been given
the notice, the employee pointed a finger at Mr
Dlamini and Mr Shezi and said: “
When
this is over I am coming to get you
”.
Mr Dlamini cautioned the employee not to make the situation worse.
Although the Security Manager was in the vicinity, his
services were
not sought to come to the aid of Mr Dlamini or Mr Shezi who, after
the incident, went together to a restaurant for
lunch.
Inquiry
by arbitrator
[10]
At the ensuing inquiry the arbitrator
recorded the first issue before him to be whether the employee “
did
all within his capacity as a responsible manager to ensure the work
attendance by all rostered subordinates on the 25
th
December 2015
”. Mr Lekala
testified that the employee had failed to ensure that tug masters
worked on Christmas day or put a contingency
plan in place in the
event that they did not. He also said that the employee had failed to
alert him to the staff problem which
caused a “reputational
blow” to the employer and had broken the trust relationship
with the employee. He stated that
the tone of the employee’s
response to his request for an explanation had taken him aback and
that he realised he was dealing
with an “
activist
manager
” with no distinction
between management and labour.
[11]
The employee’s evidence was that
he could have done nothing else to obtain a replacement for Ms
Mthethwa as there were no
standby tug masters available and no budget
to pay for standby tug masters, and that the employer had been aware
of this predicament.
Two other employees had also threatened not to
report for duty but did arrive on the day. As a result of the
unavailability of
funds for standby staff, the employee took the view
that it was not possible to prepare for staff who might not arrive
for work
on Christmas day.
[12]
Ms Mthethwa was found not to have
committed any misconduct arising from her failure to report for duty.
A copy of the arbitration
award in that matter was placed before the
arbitrator at the employee’s inquiry.
[13]
The arbitrator found that the employee
had conducted himself in an unreasonable and grossly negligent manner
in failing to ensure
the availability of full marine services for the
night shift on Christmas day, causing the employer to fail to honour
its undertaking
made to its client. It was found that the employee
had failed to report to his seniors that Ms Mthethwa would not attend
work on
25 December 2015 when a reasonable person in his position
would have done so. The arbitrator rejected the employee’s
contention
that he did not foresee that Ms Mthethwa would not comply
with his instruction to work on Christmas day, and found that he
should
have foreseen such harm and lined up an alternative tug master
to work on the day. His efforts were found to be “
insufficient
and half-hearted
” when he
“
could and should have done
more
”, with his conduct
“
highly unreasonable
”
and grossly negligent.
[14]
There
was no dispute that the employee, when receiving the disciplinary
notice in the matter, directed the words he did to Mr Dlamini
and Mr
Shezi, both of whom testified that they regarded the words as a
threat and had felt intimidated by them. In his evidence
the employee
stated that, not having been disciplined before, he spoke out as he
felt frustrated by the situation. The arbitrator
found that the
employee had threatened and intimidated the managers and that his
conduct was serious and had “
meant
to inflict fear and subjugation
”.
Placing reliance on the case of
Adcock
Ingram Critical Care v Commission for Conciliation, Mediation &
Arbitration & others
[1]
and the evidence of Mr Lekala, the arbitrator found dismissal to be
the appropriate sanction.
Labour
Court
[15]
Aggrieved with his dismissal, the
employee sought that the arbitration award be reviewed and set aside
by the Labour Court. On review,
Gush J was satisfied that the
evidence had showed that the employee had failed to ensure the
availability of full marine services
for the night shift of 25
December 2015, although he was aware of the need to ensure that such
services were provided and the serious
consequences of not doing so.
As to the threatening words uttered by the employee and directed at
Mr Dlamini and Mr Shezi, the
Court noted the evidence that both
managers had felt intimidated by his conduct.
[16]
Despite the employee’s long period
of unblemished service, the Labour Court found that there was nothing
in the record to
suggest that the sanction of dismissal was unfair.
The award was therefore found not to be unreasonable and the review
application
was dismissed with costs. It is against this order that
the employee now appeals.
Evaluation
[17]
An
arbitrator
appointed to conduct an inquiry in terms of s 188A has all the powers
conferred on a commissioner by
s
142(1)
(a)
to
(e)
,
(2)
and
(7)
to
(9)
,
[2]
with the general provisions which apply to arbitration proceedings in
terms of s 138 applicable to such inquiry
.
[3]
Section 188(8) provides that:
‘
The
ruling of the arbitrator in an inquiry has the same status as an
arbitration award, and the provisions of sections 143 to 146
apply
with the changes required by the context to any such ruling’.
[18]
Arbitration
awards issued by an arbitrator in terms of s 188A are final and
binding.
[4]
Such awards
may
be reviewed by the Labour Court in terms of s 145(1) when issued by
an arbitrator acting under the auspices of the CCMA or a
bargaining
council; and are capable of enforcement as if an order of the Labour
Court in respect of which a writ has been issued
.
[5]
[19]
Section 188A(9) provides that an
arbitrator -
‘…
must,
in the light of the evidence presented and by reference to the
criteria of fairness in the Act, rule as to what action, if
any, may
be taken against the employee
.
[20]
The arbitrator found, in relation to the
first misconduct complaint, that the employee had acted in an
unreasonable and grossly
negligent manner. He rested his decision in
this regard on three distinct findings. The first of these was that
on 22 December
2015 the employee was aware, or ought reasonably to
have foreseen, when he spoke to Ms Mthethwa that she would not report
for work
on Christmas day despite his instruction to her that she do
so. The second was that a reasonable person in his position would
have
reported as much to his superiors. The third was that despite
his knowledge in relation to Ms Mthethwa, he failed to put in place
a
contingency plan or line up an alternative tug master to work when it
was incumbent upon him to do so.
[21]
The undisputed evidence before the
arbitrator was that the employee had instructed employees, including
Ms Mthethwa, to work on
Christmas day in compliance with the
instruction he had been given by his superiors. The employee took
various steps to ensure
staff were aware of this instruction and the
contents of the roster he had drawn up. He expressly indicated to Ms
Mthethwa and
other employees that work on the day was not voluntary.
Furthermore, in his conversation with Ms Mthethwa on 22 December 2015
he
reiterated his instruction to her to work. Ms Mthethwa and two
other employees took issue with the instruction, relying on past
practice that work on Christmas day was voluntary, but did not
indicate that they refused to work on the day. While Ms Mthethwa
was
absent on the day, the other two employees, who had also taken issue
with the instruction, did report for duty. It does not
follow
therefore that the employee was aware, or ought reasonably to have
foreseen, that Ms Mthethwa, who was not found to have
committed
misconduct at her own pre-dismissal arbitration, would not report for
duty. The facts simply do not support such a finding.
[22]
Turning to the arbitrator’s second
finding that the employee had failed to report to his seniors that Ms
Mthethwa would not
attend work on 22 December 2015 when a reasonable
person in his position would have done so, given that he should have
foreseen
such harm, the evidence established that the employee had
instructed Ms Mthethwa to work on the day. She did not indicate that
she would not work but stated that she considered work on the day to
be voluntary, a view shared by at least two other employees.
It was
not disputed that the employee responded by instructing Ms Mthethwa
to work on the day. The employee could not in the circumstances
have
known, after having given an unequivocal instruction to Ms Mthethwa
that she would not comply with his instruction to work
on the day,
nor could he have reasonably been expected to know as much. It is
therefore difficult to understand why he would have
been required to
advise his superiors of something that was not a certainty. Of
relevance is the fact that the reasons later provided
by Ms Mthethwa
to explain her absence did not display a refusal on her part to work
but the existence of particular personal circumstances
which led to
her not reporting for duty. It follows that the finding of the
arbitrator that the employee should have alerted his
superiors, is
simply not sustainable on the evidence placed before the arbitrator.
[23]
The arbitrator found further that the
employee was obliged to put in place a contingency plan and line up
an alternative tug master
to work on Christmas day. Yet, the
undisputed evidence before the arbitrator was that the employee’s
superiors, including
his immediate manager, Mr Eugene Rapetti, were
aware that no budget was available for this purpose and that no
standby tug masters
were available to work. The employee had
repeatedly expressed his concerns about the issue, with the evidence
being that he had
considered obtaining staff from elsewhere to work.
What contingency plan could, given these undisputed circumstances,
reasonably
have been put in place is therefore entirely unclear, as
is why it fell to the employee to resolve what was a known
operational
and logistical problem. The employer led no evidence
demonstrating that it fell to the employee to put in place a
contingency plan
or secure the services of a standby tug master in
view of the difficulties in doing so, which were well known. The
arbitrator’s
finding that the employee’s efforts were
“
insufficient and half-hearted
”
when he “
could and should have
done more
”, with his conduct
“
highly unreasonable
”
and grossly negligent, was not borne out by the material placed
before the arbitrator. The evidence showed that the employee
had,
acting on instructions, prepared a roster and notified employees that
they were instructed to work in terms of it as he was
required to do.
Concerned about the lack of staff availability on the day, the
employee had raised the issue on a number of occasions.
He also
provided Port Control with contact numbers of all tug masters in the
event that any problem arose. With it difficult to
understand what
more he could reasonably have been required to do, the finding that
he committed misconduct did not accord with
the conspectus of the
material placed before the arbitrator. In finding differently the
Labour Court erred.
[24]
As
to the second misconduct complaint, it was not disputed that the
employee uttered the words that he did to Mr Dlamini and Mr
Shezi and
that his conduct was unwarranted, threatening and intimidating. The
arbitrator, relying on the decision of
Adcock
Ingram Critical Care v Commission for Conciliation, Mediation &
Arbitration & others,
[6]
found that the employee had “
meant
to inflict fear and subjugation
”
by his conduct. In
Adcock
Ingram
,
in the context of a violent strike,
a
member of the union's negotiating team threatened the management team
by stating: “
You
can treat this as a threat – there will be more blood on your
hands
.”
This Court, prior to the decision in
Sidumo
and
Another v Rustenburg Platinum Mines Ltd and Others
,
[7]
relied
on
Carephone
(Pty) Ltd v Marcus NO & others
[8]
to
find that interference with the arbitration award was warranted on
the basis that the “
finding
of the disciplinary inquiry was clearly correct
”
and
dismissal was “
obviously
an appropriate sanction
”.
[9]
On appeal, this Court found that the
commissioner,
in setting aside the dismissal, had relied “
on
a totally incorrect view of law and facts
”,
adopting reasoning that was “
not
rationally justifiable
”.
[25]
Counsel
for the employee contended that the arbitrator’s reliance on
Adcock
Ingram
was misplaced since the threat in that matter was made in the context
of a violent strike, which was distinguishable from the circumstances
of the current matter. It is so that the facts in
Adcock
Ingram
are not on all fours with the facts of this appeal. The evidence in
the current matter was that the employee was angered by the
fact that
disciplinary action was being taken against him, an anger which was
not without foundation given the findings above.
Although his words
constituted a threat and must reasonably have aimed to intimidate, it
is not clear precisely what he meant by
them. There was no suggestion
that Mr Dlamini or Mr Shezi were fearful of the employee or
considered their lives to be in danger
and the arbitrator did not
indicate how the words were “
meant
to inflict fear and subjugation
”.
In fact, Mr Dlamini immediately took charge of the discussion and
cautioned the employee not to aggravate the situation,
conduct which
clearly reflected that he understood the employee to be angry.
Neither Mr Dlamini nor Mr Shezi called on the Security
Manager, who
was in the immediate vicinity, to come to their aid and both left for
lunch at a restaurant after the incident.
[26]
In
considering sanction in the inquiry, the arbitrator sat in the stead
of the
employer.
In doing so he was required to have regard to relevant circumstances.
These included the nature and importance of the
rules breached, the
gravity of the misconduct, the harm caused by the employee’s
conduct, whether the trust relationship
had broken down, whether
progressive discipline or dismissal for a first offence was
appropriate, whether continued employment
was intolerable, the
employee’s personal circumstances, length of service and
previous disciplinary record, the nature of
the job and any relevant
aggravating factors.
[27]
The
arbitrator determined dismissal to be a fair and appropriate sanction
for the two acts of misconduct committed, having regard
to the
relevant mitigating and aggravating factors and the
evidence
of Mr Lekala that the trust relationship with the employee had broken
down. The employer took the view that the employee’s
long
service and clean record could not save him from dismissal since
“
there
are certain acts of misconduct which are of such a serious nature
that no length of service can save an employee who is guilty
of them
from dismissa
l”.
[10]
Furthermore, it was submitted that his lack of remorse were
aggravating factors and, with reference to
De
Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation
& Arbitration,
[11]
that it would be difficult for the employer to re-employ the employee
in such circumstances.
[28]
While
the second act of misconduct was serious, the arbitrator was required
to carefully consider the circumstances in which it
occurred,
together with its precise nature and effect. The employee’s
anger at the decision to discipline him was not without
justification, as is evident from this Court’s findings in
relation to the first charge. It was not clear what the employee
meant by the threat made; and neither Mr Dlamini nor Mr Shezi
testified that they were fearful of the employee or that they
believed
that it would be intolerable to continue working with him in
future. No other employee testified that a continued working
relationship
with the employee given this conduct was intolerable.
The employee’s long service and clean disciplinary record were
important
mitigating factors, which required careful consideration to
determine whether dismissal was appropriate or whether, having regard
to the principle of progressive discipline, the imposition of a
sanction short of dismissal was warranted. The failure on the part
of
the arbitrator to have proper regard to such factors constituted a
material irregularity and resulted in an outcome which was
one, on
the material before him, that a reasonable commissioner could not
reach
.
[12]
In finding differently the Court
a
quo
erred.
[29]
It follows for these reasons that the
appeal must succeed and the orders of the Labour Court set aside.
Given that the dismissal
of the employee was unfair, there is no
reason why the primary remedy of reinstatement into the same or
similar position should
not be granted, with a final written warning
valid for twelve (12) months cautioning the employee not to commit
similar misconduct
in the future.
[30]
Having regard to considerations of law
and fairness, costs must follow the result.
Order
[31]
For these reasons, the following order
is made:
1.
The appeal succeeds with costs.
2.
The order of the Labour Court is set
aside and substituted as follows:
“
1.
The review application succeeds
with costs.
2.
The dismissal of the applicant,
Mr James Kruger, is found to be substantively unfair.
3.
The applicant is to be
retrospectively reinstated into his employment with the respondent,
Transnet Soc Ltd t/a Transnet National Ports Authority, on the same
or similar terms and conditions of employment with no loss
of
benefits, within ten (10) days of the date of this order.
4.
The applicant is to
receive a final written warning valid for twelve (12) months for
misconduct in the form of threatening and intimidating behaviour.
____________________
Savage
AJA
Phatshoane
ADJP and Kathree-Setiloane AJA agree.
APPEARANCES:
FOR
APPELLANT:
Mr P Kirstein
Instructed by
FOR
THE FIRST RESPONDENT:
Mr B Mgaga
Garlicke & Bousfield
Inc.
[1]
(2001)
22 ILJ 1799 (LAC).
[2]
Section
188A(7).
[3]
Section
188(6).
[4]
S
143.
[5]
S
146 is concerned with the exclusion of the
Arbitration Act 42 of
1965
to arbitrations held under the auspices of the Commission for
Conciliation Mediation and Arbitration.
[6]
Ibid.
[7]
[2007]
ZACC 22
;
[2007] 12 BLLR 1097
(CC);
2008 (2) SA 24
(CC) ; (2007) 28
ILJ 2405 (CC)
[2007] ZACC 22
; ;
2008 (2) BCLR 158
(CC).
[8]
(
1998)
19 ILJ
1425
(LAC)
1435B–E.
[9]
At
para 22.
[10]
Toyota
SA Motors (Pty) Ltd v Radebe & others
(2000)
21 ILJ 340 (LAC) at 344C-F.
[11]
(2000)
21 ILJ 1051 (LAC) at para 25.
[12]
At
paras 78 and 110.