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[2021] ZALAC 56
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Horn V Commissioner Beesnaar N.O and Others (JA66/2020) [2021] ZALAC 56; (2022) 43 ILJ 115 (LAC) (18 November 2021)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JA66/2020
In the matter between:
JACQUES PIETER
HORN
Appellant
and
COMMISSIONER
S M BEESNAAR N.O.
First Respondent
SISHEN IRON ORE (PTY)
LTD (KOLOMELA MINE)
Second Respondent
THE COMMISSION FOR
CONCILIATION MEDIATION
Third Respondent
AND ARBITRATION
Heard:
3 November
2021
Delivered:
18
November 2021
Coram:
Waglay JP, Davis JA and Savage AJA
Judgment
SAVAGE AJA
[1]
This appeal, with the leave of this Court,
is against the judgment and order of the Labour Court (Rheeder AJ)
delivered on 2 August
2019 in terms of which the review application
brought by the appellant, Mr Jacques Pieter Horn, was dismissed with
no order of
costs.
[2]
The appellant was employed for eight years
as a Systems Specialist Geologist by the second respondent, Sishen
Iron Ore (Pty) Ltd,
operating as Kumba Iron Ore (Kolomela Mine). He
was a middle management employee who, at the time of his dismissal,
earned R78
438,00 per month. On 30 January 2018, the appellant was
dismissed from his employment for the assault of a fellow employee,
Mr
Hilarious Lekhula, on 10 January 2018 on a public road outside the
mine. On that day, around 07h00, the appellant witnessed the
reckless
driving of Mr Modisa Molokwane, also an employee of the second
respondent, on a public road leading to the mine. On his
arrival at
the mine gate, the appellant reported the matter to security and Mr
Molokwane was stopped at the mine entrance. The
appellant was angered
by Mr Molokwane’s conduct and went over to his vehicle to
confront him. Mr Molokwane did not exit his
vehicle while the
appellant took issue with the serious traffic violation which he had
committed at speed in a manner which had
endangered the lives of a
number of people in both his own and the appellant’s vehicle.
[3]
While the appellant confronted Mr
Molokwane, Mr Lekhula, also an employee of the second respondent,
stopped his vehicle and walked
over to the appellant. An argument
ensued between the appellant and Mr Lekhula during the course of
which Mr Lekhula pointed a
finger at the appellant and said to him:
“
You are a boer…this is not
your farm
”. Mr George Potgieter,
the security manager on duty, intervened physically to separate the
appellant and Mr Lekhula on two
occasions before the appellant pushed
Mr Lekhula on his chest and he fell to the ground. Mr Potgieter
called his superior to the
scene. Following an investigation into the
incident, the appellant was suspended from duty and after a
disciplinary hearing he
was dismissed for assault.
Arbitration award
[4]
Aggrieved with his dismissal, the employee
referred an unfair dismissal dispute to the first respondent, the
Commission for Conciliation
Mediation and Arbitration (CCMA). Four
witnesses testified for the second respondent at the arbitration
hearing. Employee relations
manager, Mr Thabiso Molefe, emphasised
the seriousness with which assault is treated by the second
respondent and stated that,
if proved, it warrants dismissal on the
first occasion. He stated that in two previous cases employees who
had committed assault
were dismissed. Given the appellant’s
seniority, Mr Molefe expressed the view that he would have expected
the appellant to
have handled the matter differently.
[5]
Mr Potgieter testified that the appellant
was aggressive when he spoke to Mr Molokwane, who remained quiet. Mr
Lekhula then “
climbed out of his
car also in an aggressive mode
”,
walked over to the appellant, pointed at him and said to him “
julle
boere
”. Mr Potgieter stated:
‘
At
that moment I could [see] something is going to happen here and I
went in between them because they were very, very close to
each
other, standing face to face. I then went in between them with my
arms and just pulled them apart.’
[6]
Mr Potgieter’s evidence was that he
separated the men on two separate occasions. Following his second
intervention, the two
“just stood there, did not talk much”
and that thereafter -
‘…
Mr
Horn then pushed …[Mr Lekhula], just pushed him with the hands
out of his,
op sy bors
.
The guy then fell on the ground. He stood up and came back to us, me
and Jacques Horn. By that time I saw now really the flame
is hot,
something is going to get crazy around here and I phoned [his
superior] Mr Dewald Botha to come and assist me…’
[7]
In cross examination, Mr Potgieter said
that the push had not been hard but was “something like a
little
stamp
”,
a “soft push” and that Mr Lekhula “could have”
fallen due to the push “but maybe his foot
also slipped or
something happened, I cannot say”. When asked by the
commissioner what had caused the fall Mr Potgieter said
he could not
say “but I believe it was because of the push” and that
it was known on the mine that “there is
no way you are allowed
to fight physically”.
[8]
Mr Gerald Brand, the mine manager, chaired
the disciplinary hearing. He had regard to the fact that the
appellant suffers from a
generalised anxiety disorder and that he had
been verbally assaulted by Mr Lekhula. However, Mr Brand found that
the appellant
had the opportunity to leave the scene on two occasions
when Mr Potgieter intervened and that given his seniority he should
have
conducted himself in accordance with the mine’s
disciplinary code. It was as a result of the seriousness of the
misconduct
committed and the second respondent’s attitude to
such misconduct that the appellant was dismissed from his employment.
[9]
The evidence of the appellant was that Mr
Lekhula pointed his finger at him and insulted him. He denied that he
became angry, stating:
‘
I
was trying to avoid conflict…At first I tried to push away his
arm with my shoulder…He swung his arm back again.
So what I
did then was both arms. I just took them and I pushed them down. That
is where the pushing comes in….At that time
he faked a fall…he
sat like that... and said I am going to charge you with assault.’
[10]
When asked in cross-examination why it was
necessary to push Mr Lekhula away he replied:
Because his finger, he
was provoking me…I did not assault him. I just pushed his
finger away from my face. It is not assault’’.
[11]
The appellant could not explain why at the
disciplinary hearing he had not mentioned anything about pressing Mr
Lekhula’s
arms away but had said that Mr Lekhula was in his
personal space and that he had just pushed him away. He suggested
that it was
safety violations to which the second respondent took a
zero tolerance approach and that his anxiety disorder, which caused
him
to have a flight or fight response, ought to have been taken into
account in the imposition of sanction.
[12]
In
his arbitration award, the first respondent (the commissioner), found
that if the appellant’s push had not been so hard,
Mr Lekhula
would not have fallen in the manner he did. Although the appellant
had been provoked and “
had
every reason to be upset and to respond in the manner he did
”,
he had a choice, given his knowledge of his medical condition and his
seniority, to leave the scene and “
not
to entertain the verbal assault of Mr Lekhula
”
yet failed to do so. As a result, the assault of Mr Lekhula was of
such a nature that, with reference to
De
Beers Consolidated Mines Ltd v CCMA & others,
[1]
the dismissal of the appellant amounted to “
a
sensible operational response to risk management
”
and was both procedurally and substantively fair.
Judgment of the Labour
Court
[13]
Dissatisfied with the arbitration award,
the appellant sought to have it set aside on review by the Labour
Court. The Labour Court
took the view that the commissioner had, in
considering the probabilities, correctly rejected the appellant’s
evidence and
found that the appellant had sufficient opportunity to
move away and avoid the assault but failed to do so. The Court took
the
view that the decision reached by the commissioner fell within
the ambit of reasonableness required and that the findings arrived
at
were not disconnected from the evidence presented. The review
application was therefore dismissed with no order as to costs.
On appeal
[14]
In this Court, the appellant raised a
number of grounds of appeal. Issue was taken with the procedural
fairness of the appellant’s
dismissal on the basis that certain
material witnesses had not been called to testify at the disciplinary
hearing. As to the substantive
fairness of the dismissal, it was
argued variously that the conduct did not occur during working hours
or on mine property; that
the appellant’s actions did not
amount to assault when the appellant had simply “moved Mr
Lekhula out of his personal
space in reaction to the [verbal] assault
on him”, giving him a slight push following which Mr Lekhula
faked a fall to the
ground; that there was no evidence of a “severe
assault” and that Mr Potgieter’s evidence was that “it
was just a little push and he might have slipped somehow”; that
he had been provoked by Mr Lekhula; that he acted in self
defence;
and that his general anxiety disorder warranted the imposition of a
sanction short of dismissal. Since the commissioner
accepted that the
appellant had been provoked and from the evidence it was apparent
that he had acted in self defence, it was submitted
that the
appellant should not have been found to have assaulted Mr Lekhula and
that the finding to the contrary was not one which
a reasonable
commissioner could have reached.
[15]
In opposing the appeal it was argued for
the second respondent that the appellant’s contradictory
defences should weigh heavily
against him. The mine was entitled to
discipline the appellant given that although the misconduct occurred
outside of the mine
it was “
of
relevance to, the workplace
”. Mr
Potgieter had twice separated the two men before the assault
occurred, which indicated the extent of the aggression
between them
and the opportunity given to the appellant to conduct himself
differently. The outcome reached by the commissioner
was supported by
the facts which showed that the appellant had aggressively pushed Mr
Lekhula on his chest as a result of which
he fell onto the ground.
Given the seniority of the appellant’s position with the second
respondent, the nature of the misconduct
committed and the mine’s
zero tolerance to assault, it was submitted that the Labour Court had
correctly found that, despite
any provocation, the appellant had
sufficient opportunity to move away from the scene and that dismissal
was appropriate. Having
regard to the applicable test on review, the
arbitration award did not fall to be set aside on review. The Labour
Court did not
therefore err in its judgment and, it was submitted,
the appeal should fail.
Evaluation
[16]
Item
7(a) of Schedule 8 to the Labour Relations Act 66 of 1995 (the LRA)
provides a
guideline
for the treatment of misconduct “
in,
or of relevance to, the workplace
”.
In
Hoechst
(Pty) Ltd v Chemical Workers Industrial Union & Another
[2]
it was made clear that an employer is not necessarily precluded from
disciplining an employee’s misconduct which occurs away
from
the workplace, but that the decision to discipline is subject to a
factual enquiry:
‘…
This
enquiry would include but would not be limited to the nature of the
misconduct, the nature of the work performed by the employee,
the
employer's size, the nature and size of the employer's work-force,
the position which the employer occupies in the market place
and its
profile therein, the nature of the work or services performed by the
employer, the relationship between the employee and
the victim, the
impact of the misconduct on the work-force as a whole, as well as on
the relationship between employer and employee
and the capacity of
the employee to perform his job. At the end of the enquiry what would
have to be determined is if the employee's
misconduct ‘had the
effect of destroying, or of seriously damaging, the relationship of
employer and employee between the
parties’.”
[3]
[17]
Such
factual enquiry enables an employer to determine the relevance for a
workplace of misconduct which occurred outside of that
workplace, as
contemplated in Schedule 8.
The
conduct which is the subject of this appeal was of a serious nature.
It occurred before work on a road outside the mine and
involved
employees of the second respondent, including the appellant who was
employed on the management level. As such, it was
clearly of
relevance to the second respondent and had a direct impact on the
employment relationship. The second respondent was
therefore entitled
to take disciplinary action against the appellant in such
circumstances
.
[4]
[18]
The
uncontested evidence of Mr Potgieter at arbitration was that the
appellant was angry when he confronted Mr Molokwane about his
reckless driving and that when Mr Lekhula entered the scene he too
was aggressive and verbally abused the appellant. The commissioner
accepted that Mr Lekhula’s conduct amounted to provocation but
found that the appellant had a choice to leave the scene and
not to
respond in the manner he did. To arrive at this finding required a
careful consideration of the facts, including the nature
and extent
of the provocation and whether it warranted the retaliatory action
taken; whether the retaliation was premeditated;
whether the
retaliation followed immediately after the provocation; the nature
and extent of the retaliation; and whether it was
reasonable,
moderate and commensurate in its nature and degree when considered
against the provocation so as to allow it to be
accepted as an
appropriate and proportional response to the provocation in the
circumstances.
[5]
In concluding that a physical response to Mr Lekhula’s
provocative verbal statements was not justified, the commissioner
cannot be faulted. Such a finding fell well within the ambit of
reasonableness required having regard to the facts.
[19]
As
to the appellant’s contention that he had acted in self defence
in response to Mr Lekhula’s act of aggression against
him, for
such a defence to succeed the
act
of defence must
inter
alia
have been shown not only to have been commensurate with the danger
created by Mr Lekhula, but also reasonably necessary, proportional
and not excessive
having
regard to the circumstances.
[6]
Although Mr Lekhula’s words were insulting and unwarranted they
created no pressing danger for the appellant of a nature
that it
would have allowed a finding that his aggressive physical response
was reasonable, necessary or appropriate. It followed
that a defence
of self defence was simply not available to the appellant, more so
given the appellant’s seniority and when
Mr Potgieter had
already intervened to prevent a physical altercation between the two
men.
[20]
It
is trite that a court on review is required to determine whether the
decision reached by the commissioner was one that a reasonable
decision-maker could not reach.
[7]
In
Herholdt
v Nedbank
Ltd
(
Congress
of South African Trade Unions as Amicus Curiae
),
[8]
it
was made clear that:
‘
For a defect in
the conduct of the proceedings to have amounted to a gross
irregularity as contemplated by Section 145(2)(a)(ii),
the arbitrator
must have misconceived the nature of the enquiry or arrived at an
unreasonable result. 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.’
[9]
[21]
This
Court in
Head
of the Department of Education v Mofokeng & others
[10]
stated:
‘
Mere
errors of fact or law may not be enough to vitiate the award.
Something more is required. To repeat: flaws in the reasoning
of the
arbitrator, evidenced in the failure to apply the mind, reliance on
irrelevant considerations or the ignoring of material
factors etc.
must be assessed with the purpose of establishing whether the
arbitrator has undertaken the wrong enquiry, undertaken
the enquiry
in the wrong manner or arrived at an unreasonable result.’
[22]
In
undertaking his task, the commissioner was required to have regard to
the conspectus of the material before him.
This
included but was not limited to the nature and seriousness of the
misconduct, the importance of the rule, the extent of similarity
between the employee’s misconduct and other incidents of a
similar nature
,
the consistent application of the rule by the appellant, the harm
caused by the employee’s conduct, his seniority and knowledge
of the rule,
the
reason
the employer imposed a
sanction of dismissal, the basis of the challenge to his dismissal,
the employee’s disciplinary record
and relevant mitigating
factors. The commissioner had regard to the various defences raised
by the appellant, finding that the
appellant had been provoked. Even
if the commissioner found that the appellant “
had
reason … to respond in the manner he did
”
while at the same time finding that dismissal for the misconduct
committed was appropriate, this is not enough to vitiate
the award
when the enquiry undertaken was correct and the commissioner did not
arrive at an unreasonable result.
[23]
The commissioner had regard to the relevant
material before him and found that the appellant had pushed Mr
Lekhula, when given his
knowledge of his medical condition and his
seniority, he could and should have left the scene and refused “
to
entertain the verbal assault of Mr Lekhula
”
but failed to do so.
[24]
A
commissioner, as was clearly stated in
Sidumo
&
another v Rustenburg Platinum Mines Ltd & others,
[11]
‘…
has
to determine whether a dismissal is fair or not. A commissioner is
not given the power to consider afresh what he or she would
do, but
simply to decide whether what the employer did was fair. In arriving
at a decision a commissioner is not required to defer
to the decision
of the employer. What is required is that he or she must consider all
relevant circumstances.’
[1]
[25]
The commissioner had regard to
circumstances relevant to a determination as to the fairness of the
appellant’s dismissal.
It was a relevant consideration that, in
spite of the relevant mitigating factors, the appellant had sought to
underplay his conduct,
contending he had given Mr Lekhula a “slight
push”, in response to which he suggested Mr Lekhula had “faked”
a fall to the ground, as opposed to taking responsibility for his
conduct in breaching an important rule.
[26]
The commissioner’s finding that the
dismissal was fair did not fall outside of the ambit of
reasonableness required. The Labour
Court cannot therefore be faulted
for arriving at the decision it did. The appeal cannot therefore
succeed. There is no reason
in law or fairness why an order of costs
should follow the result.
Order
[27]
For these reasons, the following order is
made:
1.
The appeal is dismissed.
Savage AJA
Waglay
JP and Davis JA agree.
APPEARANCES
:
FOR THE APPELLANT:
Mr C Coetzee
Coetzee and Jansen van
Rensburg Attorneys
FOR THE FIRST RESPONDENT:
Mr F
Boda SC and Mr T Moshodi
Instructed
by Cliffe Dekker Hofmeyr Inc.
[1]
[2000]
9 BLLR 995
(LAC) at para 22.
[2]
(1993)
14
ILJ
1449
(LAC)
at 1459B-J.
[3]
Ibid.
[4]
See
for example
Dolo
v CCMA and others
(2011) 32 ILJ 905 (LC) at para 19.
[5]
See cases including
Powell
v Jonker
1959
4 All SA 380
(T); 1959 4 SA 443 (T);
Mordt
v Smith
1968
4 All SA 472
(RA); 1968 4 SA 750 (RA);
Dzvairo
v Mudoti
1973
3 All SA 214
(RA); 1973 3 SA 287 (RA);
Bennett
v Minister of Police
1980
3 All SA 817
(C); 1980 3 SA 24 (C) at
31–32.
[6]
Ntanjana
v Vorster & Minister of Justice
1950
4 All SA 248
(C)
;
1950 4 SA 398
(C);
Chetty
v Minister of Police
1976
2 All SA 508
(N)
;
1976 2 SA 450
(N)
455;
S
v Jansen
1983
4 All SA 173
(NC)
;
1983 3 SA 534
(NC).
[7]
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[2007] ZACC 22; [2007] 12 BLLR 1097 (CC); 2008 (2) SA 24 (CC) ;
(2007) 28 ILJ 2405 (CC); 2008 (2) BCLR 158 (CC) at para 110.
[8]
2013
(6) SA 224
(SCA);
[2013] 11 BLLR 1074
(SCA); (2013) 34 ILJ 2795
(SCA).
[9]
At
para 25.
[10]
(2015)
36 ILJ 2802 (LAC) at para 32.
[11]
At
para 78.