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[2022] ZALAC 95
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Mthethwa v Commission for Conciliation, Mediation and Arbitration and Others (JA104/2020) [2022] ZALAC 95; [2022] 9 BLLR 814 (LAC); (2022) 43 ILJ 1786 (LAC) (10 May 2022)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JA104/2020
In
the matter between:
SINENHLANHLA
PRECIOUS MTHETHWA
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION

First Respondent
COMMISSIONER
NATASHA MONI
Second
Respondent
MOTOR
INDUSTRY BARGAINING COUNCIL
Third
Respondent
Heard:
01 March 2022
Delivered:
10 May 2022.
Coram: Coppin JA,
Tokota et Phatudi AJJA
JUDGMENT
PHATUDI
AJA
Introduction
[1]
This appeal, with the leave of the Labour
Court, is against the Judgment and Order of that Court (Yeates AJ)
delivered on 14 November
2019, in which the appellant’s
application seeking to review and set aside the second respondent’s
award, (“the
arbitrator”) was dismissed. The appeal is
opposed by the third respondent.
Factual
Background
[2]
The appellant commenced her employment with
the third respondent on 24 March 2014, as a Client Service
Representative, until her
dismissal on 26 July 2017, at a time when
she occupied the position as a Returns Processor, Randburg Branch.
2.1
On 05 July 2017, an altercation ensued at the workplace between the
appellant and one Ms
Martina Malebana (“Malebana”) in the
Manager’s kitchen, where she allegedly held the latter by her
clothes and
poked her in the face, threatening to assault her.
2.2
There was another altercation on the same day between the appellant
and one Zandile Kwabe
(“Kwabe”) after the appellant
accused Kwabe of trying to “steal her man”.
2.3
Following these incidents, all three employees, that is the
appellant, Malebane and Kwabe
were charged with various acts of
misconduct. Insofar as it may be material for present purposes,
charges against the appellant
ranged from assault, intimidation and
harassment, insults and bringing the company name into disrepute, to
unauthorised absence
from duty.
[3]
Appearing in person before the disciplinary
hearing on 20 July 2017, the appellant, pleaded guilty to all the
charges preferred
against her. She was, in consequence of her guilty
plea, dismissed on 26 July 2017. Malebana and Kwabe were, however,
given final
written warnings. Displeased with the sanction imposed,
the appellant approached the Commission for Conciliation, Mediation
and
Arbitration (“CCMA”) for intervention, alleging that
she was unfairly dismissed.
Arbitration
[4]
It appears from the record that in 2015,
the appellant had been charged with, i
nter
alia
, making (degrading insults)
towards her superior, Mapalo Tsatsimpe, who for some strange reasons,
turned out to be the person who
presided over the disciplinary
enquiry that led to the appellant’s dismissal on 02 June 2015,
but for the third respondent’s
intervention, through Tom
Mkhwanazi, the appellant was granted a “conditional reprieve”
from dismissal. She was, in
addition, placed on a final written
warning, effective for 12 months, demoted to a back office position
and required to submit
to an anger management process.
[5]
Having analysed the evidence before her,
the second respondent (Commissioner) found that the appellant’s
dismissal was both
procedurally and substantially unfair.
[6]
The Commissioner, in spite of the amended
remedy sought, (namely, reinstatement) decided to award the appellant
a maximum compensation
of 12 months’ salary, which translated
to R150 000.00 (R12500 X 12) payable within 14 days of receipt
of the award.
[7]
Aggrieved because her reinstatement was not
ordered, the appellant launched an application in the Court
a
quo
seeking an order reviewing and
setting aside the award.
The
Parties’ submissions in
the court a quo:
[8]
The
appellant, submitted, amongst other things, that the commissioner did
not exercise her discretion properly, regard being had
to the
provisions of section 193(1) of the Labour Relations Act (the
LRA)
[1]
, by failing, after
finding that the dismissal was procedurally and substantively unfair,
to award the primary remedy of reinstatement.
She also submitted that
the Court
a
quo
erred in fact and in law by failing to consider that in terms of the
said section, reinstatement was the appropriate primary remedy
in the
circumstances.
[9]
The appellant, in terms of her amended
statement, had sought reinstatement if it was to be found that her
dismissal was both procedurally
and substantively unfair.  Properly
interpreted, where the employee wishes to be re-instated or
re-employed, section 193 requires
the Labour Court or an arbitrator,
after finding that an employee’s dismissal is substantively
unfair, to order the reinstatement
or re-employment, unless where
there are circumstances  surrounding the dismissal that would
make a continued employment relationship
intolerable, or it would not
be reasonably impracticable to reinstate or re-employ the employee,
in which case, then compensation
would be appropriate, in lieu of
reinstatement or re-employment.
[10]
The appellant submitted further that in the instant case however, no
evidence had been adduced
before the Commissioner that her
reinstatement or re-employment would render a continued employment
relationship intolerable within
the ambit of section 193 (2) (b) of
the LRA. or reasonably impracticable, as envisaged in section 193 (2)
(c).
10.1
The aforegoing observation is, in my opinion, reinforced by the
following excerpt from
Booi
v Amathole District Municipality & Others
[2]
‘
It
is accordingly no surprise that the language, content and purpose of
s 193 (2)
(b)
dictate that the bar of intolerability is a high one.  The term
‘intolerability “implies a level of unbearability,
and
must surely require more than the suggestion that the relationship is
difficult, fraught or even sour.  This high threshold
gives
effect to the purpose of reinstatement injunction in s 193 (2), which
is to protect substantively unfairly dismissed employees
by restoring
the employment contract and putting them in the position they would
have been in, but for the unfair dismissal.
And, my
approach to s 193 (2)
(b)
is fortified by the jurisprudence of the Labour Appeal Court and the
Labour Court, both of which have taken the view that the conclusion

of intolerability should not easily be reached,
and
that the employer must provide weighty reasons, accompanied by
tangible evidence, to show intolerability.
’
(emphasis added).
10.2
Counsel for the respondent, Mr Schoeman, on the contrary, submitted,
relying considerably upon the
reasoning of the second respondent
(commissioner) that:
“
I
think that the applicant’s tenure would be unsafe and insecure
should she be retrospectively reinstated”
,
as the basis of opposition to the review application. He could,
however, not enlarge further on this aspect.
[11]
The view I take of the matter, therefore is that the Commissioner in
the instant matter, had
utterly failed to meet the threshold laid
down in
Booi’s
case
.
This, clearly was a conclusion no reasonable decision-maker could
reach.
[3]
In other words, there was no “rational objective basis
justifying the connection made by the administrative decision-maker

between the material properly available to him and the conclusion he
or she eventually arrived at”
[12]
The Court
a quo
correctly found that “the exact basis of
the second respondent’s contention that the applicant’s
tenure would
be unsafe and insecure should she be retrospectively
reinstated, is not explained.”
[13]
Furthermore, the Court
a quo
found, correctly so, in my view,
that “
in the absence of the second respondent further
elaborating on the factors she considered for not granting the
applicant reinstatement,
this Court is left in the unenviable
position to guess what the second respondent may have meant where in
the arbitration award
she said:
‘
In
my observation of the various role players in this matter, I think
that the applicant’s tenure would be unsafe and insecure
should
she be retrospectively reinstated.’.
[14]
Additionally, the Court
a quo
, again, correctly observed that
“there is little indication whether the possibilities of the
situation make reinstatement
inappropriate or may be potentially
futile to the parties working relationship.  Here,
intolerability at the workplace should
not be confused with mere
incompatibility between the employer and employee.
[15]
Regard being had to the aforegoing emphatic observation made by the
court
a quo
, I am even more inclined to agree with the
appellant that absent evidence of the circumstances surrounding her
dismissal, a continued
employment relationship would be intolerable
as envisaged in section 193(2)(b) of the LRA, the conclusion or
decision reached to
the contrary would, to my mind, be that no
reasonable commissioner would have arrived at.
[16]
The observation made in paragraph [15] above is further reinforced by
the somewhat imperative
wording of section 193(2) of the LRA which
states that:
‘
Section
193(2)
The
Labour Court or arbitrator
must
require the employer to
reinstate or re-employ the employee unless-
(a)
the employee does not wish to be reinstated
or re-employed;
(b)
the circumstances surrounding the dismissal
are such that a continued employment relationship would be
intolerable;
(c)
It is not reasonably practicable for the
employer to reinstate or re-employ the employee
(d)
-------------
[17]
The word “must” in section 193(2) should be interpreted
to import a peremptory meaning
as to when the Labour Court or
arbitrator is obliged to either reinstate or re-employ a dismissed
employee. The arbitrator’s
discretion is, therefore, fettered
if none of the factors enlisted in subsection (2) of section
193(a)-(d) is absent. In other
words, in that event, reinstatement or
re-employment is obligatory to be ordered against a finding of unfair
dismissal. In this
instance, none of the factors listed in section
193 (2) (a) to (c) were established against the appellant.
[18]
The aforegoing interpretation is, in my view, in harmony with the
decision in this Court of
South
African Municipal Worker’s Union and Another v Ethekwini
Municipality and Others
[4]
,
[19]
In the present instance, it cannot be that the finding by the
commissioner that the respondent
(employer) failed to address the
relationship of trust, and whether it was tethered or broken, and yet
the commissioner still decided
not to grant the primary remedy
sought, qualify as a reasonable finding, a decision-maker could
reach. There must, of course, be
plausible reasons anchored on
reasonable grounds for the departure.
[20]
Applying the principles espoused in
SAMWU v Ethekwini Municipality
above, I am of the view that having found the dismissal substantively
unfair, the arbitrator was to consider whether the peremptory

reinstatement should not be awarded in light of the particular
circumstances of the matter as envisaged in section 193(1) and (2)
of
the LRA. The enquiry should have required that the appellant’s
retrospective reinstatement as the primary remedy, and
an evaluation
of the prevailing circumstances, for instance, whether evidence
adduced on the trust relationship suggests a severed
working
relationship between the parties, should have been assessed.
[21]
Despite finding that, there is no indication on the evidence whether
the possibilities of rendering
reinstatement inappropriate or may be
potentially futile, the Court
a quo
failed to order
reinstatement as sought. This was erroneous.
[22]
This observation emerges out of the salutary finding by the Court
below that:
‘
[41]
taking into consideration the factors enunciated above, it emerges on
the face of it that many of the factors appear in favour
of the
applicant’s reinstatement.’
[23]
The learned Acting Judge went on to enumerate such factors, correctly
so, in my view, as follows:
‘
(a)
the applicant sought reinstatement as the primary remedy;
(a)
The nature and extent of the misconduct,
when viewed in the context of the inconsistent treatment of the
applicant juxtaposed against
the final written warnings of Malebana
and Kwabe;
(b)
The fact that the dismissal had been found
to have been substantively unfair due to inconsistency;
(c)
The lack of evidence supporting a
conclusion that the trust relationship has been severed.’
These
factors should, in my view, have prevailed in the arbitrator’s
award but were simply erroneously overlooked.
[24]
As opposed to the above-named factors, the Court
a quo,
however, found at paragraph [42] of the judgment factors that
inter
alia
militated against reinstatement.
‘
a.
She was already on a final written warning.’
[25]
This finding, being one of the factors that discounted against
reinstatement is, in my view,
factually incorrect. The arbitrator
indicated that according to the evidence, a final written warning
issued by Mr Tom Mkhwanazi,
(third respondent’s Secretary
General at the time) remained valid for twelve (12) months from 02
June 2015. Subsequent infractions
by the appellant were clearly
committed around July 2017. To that end, I find that the Court
a
quo
’s reasoning against reinstatement was premised on
erroneous facts, since there was no final written warning at the
time,
which was still valid and thus enforceable.
[26]
It is a trite principle that the arbitrator is obliged to probe any
factor which is relevant
and or adverse to reinstatement if the
finding was that the dismissal was both procedurally and
substantively unfair
[5]
.
[27]
Put differently, the LRA permits any of the three remedies set forth
in section 193(1) to be
afforded to an unfairly dismissed employee,
such as the appellant. These remedies are legislatively designed to
safeguard the employee’s
security of tenure at the workplace.
See also,
Equity
Aviation Service (Pty) Ltd v CCMA & Others
[6]
.
[28]
In
casu
, the Court
a quo
, therefore, erred in awarding
compensation in circumstances where the factors envisaged in section
193(a)(b) and (c) of the LRA,
were not established by the evidence
and on a balance of probabilities. Moreover, the arbitrator did not,
in deviating from the
primary relief sought, furnish reasons for
granting the remedy not pleaded by the appellant. He, instead,
applied his “thinking”,
which is subjective, in holding
that “the applicant’s tenure would be unsafe and
insecure”, should the appellant
be reinstated.
[29]
Significantly, this conclusion unfortunately, actuated the Court
a
quo
to find that it is “
clear that an order for
reinstatement would not necessarily have the desired effect of
safeguarding the employee’s security
of employment
,
the
reasons she
(arbitrator)
observed
”. From the
foregoing, it follows that the Court below did not apply its
independent assessment of the circumstances set out
in section
193(2)(b) and (c) of the LRA.
[30]
This is a clear irregularity this Court is, at large to disturb and,
therefore, set aside.
[31]
I must mention, in addition, that there was no cross-review filed on
behalf of the third respondent
demonstrating, on the facts, that the
appellant’s re-instatement or re-employment would create an
intolerable toxic working
relationship at the workplace, nor that it
would not be reasonably impracticable.
[33]
For that, the Court
a
quo
should have found that the award in the circumstances of the case,
was not reasonable. Furthermore, the award “must be fair
to
both parties affected by the decision
[7]
.
In
casu
,
the award was not justified in relation to the reasons given for it.
Costs
[34]
There remains the question of costs. It is trite that in civil
matters costs should follow the
cause. However, in Labour matters,
the norm is not always applied, except upon considerations of law,
fairness, and justice being
shown. For that, fairness dictates, in my
view, that there will be no order as to costs.
[35]
For all of the foregoing considerations, the appeal ought to succeed.
In consequence, the following
order will be issued:
(1)
The appeal is upheld.
(2)
The Order of the Court
a quo
is set aside and is substituted
with the following order:
“
2.1
The arbitration award is set aside and replaced with an award that:
the
applicant is reinstated retrospectively to her position from the date
of dismissal (26 July 2017) with all terms and conditions
and
benefits no less favourable than prior to her dismissal.”
(d)
There is no order as to costs.
M.G
Phatudi
Acting
Judge of the Labour Appeal Court
I
concur
Coppin
JA
Tokota
AJA
APPEARANCES:
FOR
THE APPELLANT:

In person (Ms Precious Mthethwa)
FOR
THE THIRD RESPONDENT:             Adv
Johan Schoeman
Instructed
by                                              Wolnuter

Attorneys, Johannesburg
[1]
Act 66 of 1995, as amended.
[2]
(2022)
43 ILJ 91 (CC)
;
[2021] ZACC 36
(19 October 2021), per Khampepe ADCJ (Unanimous
decision) at para 40.
[3]
Carephone
(Pty) Ltd v Marcus N.O & Others
1999 (3) SA 304
(LAC) at para : [37]
[4]
[2019] 1 BLLR 46
(LAC), paras [16] – [18].
[5]
DHL
Supply Chain (Pty) Ltd & Others v National Bargaining Council
for the Road Freight Industry & Others
[2014] 9 BLLR 860 (LAC).
[6]
[2008] ZACC 16
;
2009 (2) BLLR 111
(CC),
2009 (1) SA 390
(CC).
[7]
BMD
Knitting Mills (Pty) Ltd v SA Textile Workers Union
[2001] 7 BLLR 705
(LAC), per Davis AJA.