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[2021] ZALAC 21
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VSB Construction ta Techni-Civils CC v NUM obo Mngqola and Others (PA11/2018) [2021] ZALAC 21; [2021] 10 BLLR 1009 (LAC); (2021) 42 ILJ 2407 (LAC) (23 July 2021)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, PORT ELIZABETH
Not
Reportable
Case
no: PA11/2018
In
the matter between:
VSB
CONSTRUCTION t/a TECHNI-CIVILS CC
Appellant
and
NUM
obo MNGQOLA
First Respondent
BARGAINING
COUNCIL OR THE CIVIL
ENGINEERING
INDUSTRY
Second Respondent
MS
M FOUCHE N.O
Third Respondent
Heard:
27 November 2019
Delivered:
23 July 2021
Coram: Davis JA,
Sutherland JA and Murphy AJA
JUDGMENT
DAVIS
JA
Introduction
[1]
This appeal turns solely on whether, having found a dismissal for
alleged
misconduct to be substantively unfair because it was
“inappropriate” the arbitrator (third respondent) could
reasonably
have refused to order that Mr Mngqola (the employee) be
reinstated and, if so, whether the third respondent had erred by
doing
so, based on the facts of this case. A second, related issue,
which concerns this Court is whether the court
a quo
could, on
the evidence presented, have set aside the finding of the third
respondent that the employee was entitled only to compensation
which
was equal to two months’ remuneration.
[2]
The employee was dismissed after being found guilty on a charge of
“gross
dishonesty” in that he had allegedly stated that
the Chief Executive Officer of the appellant was a racist. He
subsequently
repeated the allegation to other employees, particularly
to members of the appellant’s human resources department.
[3]
After hearing the evidence presented by the parties, the third
respondent
accepted the appellant’s evidence that the employee
had made these statements, but found that the appellant had
“overreacted”
by imposing the sanction of dismissal. The
dismissal was, accordingly, ruled to be substantively unfair.
[4]
Her main findings in this regard, which for purposes of this case
must
be accepted in that there was no appeal against them were set
out as follows:
‘
That
the benefits accorded to one Riaan, a newly appointed white employee,
pursuant to Riaan’s elevation above the employee
were “likely
to cause friction and perhaps even a perception of discrimination”;
that “the utterances the [employee]
made, true or false,
display his unhappiness and perception of racism and are nothing more
than expression of his feelings, his
opinion”; that the chair
of the disciplinary hearing “erred in finding that the
[employee] was guilty of gross dishonesty
[W]hat the [employee] did
was to express his opinion when asked to do so by three managers”;
and that the employer had “quite
frankly overreacted”.’
[5]
Having found that the employee’s dismissal was substantively
unfair,
the third respondent decided that he ought not to be
reinstated for two reasons: (i) “[c]onsidering the
[appellant’s]
submissions and the circumstances in their
entirety the trust relationship between the [appellant] and the
[employee] has broken
down irretrievably”; and (ii) the
employee “was not an honest witness”.
[6]
On behalf of the employee, the first respondent approached the court
a quo
on review, contending that the third respondent had
improperly exercised her discretion by refusing to reinstate the
employee and
that this decision was unreasonable in that it was not
one to which a reasonable arbitrator could arrive and thus stood to
be set
aside.
[7]
In upholding the application and thus ordering reinstatement,
Whitcher
J, sitting in the court
a quo
, held:
‘
Given
her findings on why dismissal was not an inappropriate sanction, the
arbitrator could not possibly have found that a continued
employment
relationship would be intolerable.’
[8]
Dissatisfied with this order, the appellant has approached this Court
to set aside the relief granted by the court
a quo
, albeit
that it accepts the finding that the dismissal was substantively
unfair. In essence, the appellant contends that the remarks
made by
the employee were reasonably capable of being construed in the manner
complained of by the appellant. The appellant contended
that the
burden shifts to the employee to show that, when he uttered these
words, he did not mean it to be racist nor demeaning.
The
employee was the only one who could give this testimony, but he never
did. Instead, he was adamant that he never made the remarks,
which
was a version which was rejected by the third respondent. In the view
of the appellant, the absence of any such evidence
should have been
the end of the matter where it came to his continued employment with
the appellant in that his conduct had made
it intolerable to have a
continued employment relationship.
Evaluation
[9]
An arbitrator must order reinstatement unless one of the exceptions
in
s 193(2) of the Labour Relations Act 66 of 1995 (the LRA) applies.
The only exception applicable in this case is s 193(2)(b), which
provides that reinstatement or reemployment needs not be granted when
“the circumstances surrounding the dismissal were such
that a
continued employment relationship would be intolerable”. In
this connection, this Court in
Glencore Holdings (Pty) Ltd and
another v Gagi Joseph Sibeko
and others
[2018] 1 BLLR 1
(LAC) at
para 10, has held that an employee’s behaviour, even if
deserving of reproach, could not be construed to inhibit
and order of
reinstatement.
[10]
In the present case, the dismissal should not have legally taken
place. So much is clear
from the finding that the dismissal was
substantively unfair, a finding that was not contested by the
appellant. If a dismissal
should not have occurred, the employment
relationship would have continued, save for exceptional circumstances
as envisaged in
s 193(2)(b) of the LRA. Without a showing of
exceptional circumstances, it is impermissible to couple a finding
that a dismissal
was inappropriate with a finding that reinstatement
would not be appropriate.
[11]
In this case, there is no such showing. No evidence was led during
the arbitration hearing
to the effect that reinstatement would be an
inappropriate order. The closest the appellant came to providing any
basis for exceptional
circumstances was evidence that false
accusations of racism aired in public would harm its business. But
the allegation made by
the employee was not made in public. Moreover,
the truth or otherwise of the employee’s allegation was never
put to the test,
and the third respondent made no express finding.
That an allegation of racism is hurtful in the extreme when made with
no justification.
But in this case the core finding was that the
conduct of the employee could not justify a dismissal.
[12]
It is important to emphasize the basis on which this appeal has been
brought and determined.
The finding that the dismissal was
substantively unfair is not the subject of this appeal. Had this
finding been contested before
this Court, the question of a remedy,
in the event that such an appeal failed, would have posed a far more
complex challenge. But
the merits of the third respondent’s
determination was not contested. In this specific context, the
appellant had to do more
to ensure that reinstatement was not ordered
than a reliance on the argument that the impugned statement had been
made. That it
failed to offer any further evidence is thus fatal to
this appeal.
[13]
In the result, there is no justification for disturbing the finding
of the court
a quo
. The appeal is dismissed with costs.
_____________
Davis
JA
Sutherland
JA and Murphy AJA concur.
APPEARANCES:
FOR
THE APPELLANT:
Adv John Grogan and
Instructed
by Wesley Pretorius & Associates Inc
FOR THE FIRST
RESPONDENT:
Arend Posthuma of Snyman Attorneys