About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2022
>>
[2022] ZALAC 98
|

|

Paarl Coldset (PTY LTD) v Singh (DA1/2021) [2022] ZALAC 98; (2022) 43 ILJ 2010 (LAC); [2022] 10 BLLR 920 (LAC) (2 June 2022)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Not
Reportable
Case
no: DA1/2021
In
the matter between:
PAARL
COLDSET (PTY
LTD)

Appellant
and
SIRSINGH
SINGH
Respondent
Heard:

15 March 2022
Delivered:
02 June 2022
Coram:

Phatshoane ADJP, Savage and Phatudi AJJA
Judgment
SAVAGE
AJA
[1]
This appeal, with the
leave of the Labour Court, is against the judgment and orders of the
Labour Court (Gush J) delivered on 10
November 2020 in terms of which
the award of the arbitrator, issued under the auspices of the
Statutory Council for the Printing,
Newspaper and Packaging
Industries (‘the Council’), was set aside on review and
the respondent, Mr Sirsingh Singh,
reinstated into his employment
with the appellant, Paarl Coldset (Pty) Ltd. The respondent
cross-appeals against the order of reinstatement,
only to the extent
that he urged that the reinstatement be retrospective up until the
date on which he would have been retrenched
when the appellant closed
its Pietermaritzburg operation, where he was employed. In the
alternative, if reinstatement is found
not to be reasonably
practicable, the respondent seeks 12 months’ compensation for
his unfair dismissal.
[2]
The respondent was
employed as a shift manager by the appellant, a business engaged in
the printing of newspapers. Portions of the
premises occupied by the
appellant were leased to other companies, including Media24. On 21
September 2016, at approximately 06h00,
after completing his shift,
the respondent exited the appellant’s premises by driving down
a one-way lane designated for
traffic entering the premises. To avoid
colliding with an oncoming vehicle and so as to allow that vehicle to
pass, the respondent
was forced to move his vehicle backwards. The
driver of the oncoming vehicle, who was the son of Ms Charmaine
Cassim, an employee
of Media24, told the respondent he was driving in
a “no entry zone”. While Ms Cassim was getting out of the
vehicle
driven by her son, the respondent drove his vehicle at speed
towards them, behaved in an aggressive and intimidatory manner
towards
the Cassims and swore at them. He is said to have pursued the
Cassims. Parked next to their vehicle to continue with the argument.

He alighted his vehicle while the Cassims remained in their vehicle.
He used offensive language and intimidated Mr Cassim which
conduct
brought Ms Cassim to tears. Angered by his conduct, Ms Cassim
reported the incident to the appellant’s management
the same
day which prompted an investigation into the incident.
[3]
At a disciplinary
hearing held on 5 October 2016, the respondent was found to have
failed to adhere to safety regulations, with
potentially serious
consequences, and to have resorted to violence or intimidation in
approaching and intimidating the Cassims.
This conduct was found to
have impacted negatively on the appellant and brought it into
disrepute with its tenants.
[4]
The respondent did
not deny his misconduct. He admitted that he had driven down the
one-way road and that he had sworn at the Cassims
during the
incident. The chairperson of the disciplinary hearing found that the
respondent had purposefully escalated the conflict
by confronting the
Cassims in an aggressive and threatening manner. From CCTV footage it
was apparent that he had pulled his vehicle
unnecessarily close to Ms
Cassim’s vehicle in what appeared to be an aggressive attempt
to intimidate or harass them. The
disciplinary hearing chairperson
rejected the respondent’s attempt to lay blame on the Cassims.
In recommending an appropriate
sanction, the chairperson stated that:
‘
I
note that these offences are very serious and could possibly warrant
dismissal. I have however taken into account the employee’s
33
years’ service and his clean disciplinary record and the fact
that coming off night shift, he was possibly tired and may
have been
in shock after the near-collision. I have also noted his expression
of intent to reconcile with Mrs Cassim and her son.
I, therefore,
believe that the mitigating factors are strong enough to reduce the
sanction to a final written warning provided
that Mr Singh gives Mrs
Cassim and her son an apology and an undertaking to refrain from any
further negative interactions with
them.’
[5]
This recommendation
was duly implemented by the appellant. On 13 October 2016, the
respondent emailed his line manager, Mr Shaun
Coleman, stating:
‘
Please
note as per the chairperson’s recommendation I S. Singh do
hereby and without prejudice do humbly apologise unconditionally
to
Charmaine and her son with regards to the incident that occurred in
the driveway on the 21
st
September
2016.’
[6]
Mr Coleman suggested
changes to the apology and it was agreed with the respondent that he
would personally tender the apology at
a meeting with the Cassims,
which was to be arranged by Mr Coleman. On 17 October 2016, the
Cassims attended at the appellant’s
offices for this purpose.
However, the respondent arrived 20 minutes late for the meeting, did
not make any eye contact with the
Cassims and when requested to
apologise to them, refused to do so on the basis that he had obtained
legal advice and would appeal
the ruling. The Cassims left the
meeting irate. Later that day, the respondent informed Mr Coleman
that his apology to the Cassims
did not have to wait the outcome of
the appeal and that he would keep his promise to make the apology at
their convenience. In
due course, the respondent lodged an appeal
against the disciplinary findings and sanction imposed by the
appellant, which appeal
he was advised on 26 October 2016 had been
unsuccessful. No apology to the Cassims was made.
[7]
The appellant took
further disciplinary action against the respondent following his
conduct at the meeting with the Cassims on 17
October 2016 on the
basis that his conduct had impacted negatively on the appellant since
the Cassims had attended the meeting
to receive the apology, but the
respondent had refused to apologise which had escalated the conflict
and brought the appellant
into disrepute. At the second disciplinary
hearing held on 8 November 2016, the appellant contended that the
respondent’s
conduct had amounted to a breach of the trust
relationship in that although he had confirmed that he would
apologise verbally and
sent an email to this effect, in accordance
with the outcome of the first disciplinary hearing, when given the
opportunity he had
refused to do so.
[8]
The chairperson found
that the respondent had contravened the appellant’s standard of
trust and that given his supervisory
role he was aware of the conduct
required of him and the importance of upholding the image of the
appellant. It was found that
the aggravating factors outweighed those
submitted in mitigation and that dismissal was the appropriate
sanction.
Arbitration
award
[9]
Dissatisfied with his
dismissal, the respondent referred an unfair dismissal dispute to the
Council. The arbitrator found that the
respondent was aware that the
condition attached to the final written warning was that he
apologises to Ms Cassim and her son.
After he had emailed the draft
apology to Mr Coleman, which indicated his intention to apologise, a
meeting was arranged with the
Cassims. The arbitrator accepted Mr
Coleman’s evidence that the respondent had agreed to the
meeting being set up with the
Cassims to allow him to apologise to
them. On his late arrival at the meeting, the arbitrator noted that
the respondent ignored
the Cassims, refused to make eye contact with
them, did not greet them and proceeded to inform Mr Coleman that on
the basis of
the legal advice he had received, he would only
apologise after the outcome of the appeal process. The Cassims left
the meeting
irate and expressed their strong dissatisfaction to the
appellant with what had occurred.
[10]
The arbitrator found
that the respondent’s statement that he had not known about the
meeting with the Cassims was not put
to Mr Coleman and was “highly
suspicious considering that he wrote an e-mail to Coleman indicating
what his apology would
be”. The respondent was found to have
tailored his evidence as he went along, with Mr Coleman’s
evidence found more
probable than that of the respondent. The
arbitrator took the view that Mr Coleman had no interest in setting
up a meeting to humiliate
the respondent, as had been alleged by the
respondent, and that it was more plausible that he had wanted to
assist the respondent.
The respondent was found to have “had
second thoughts about the apology” and to have escalated the
dispute at the meeting
with the Cassims. When the respondent later
indicated that he wished to apologise, the Cassims were
unsurprisingly not interested.
Through his conduct, the arbitrator
found that the respondent, despite being given the opportunity to
apologise, had “embarked
on a route that simply aggravated the
already existing dispute”.
[11]
This led the
arbitrator to conclude that given his conduct, the appellant was
entitled to take further disciplinary action against
the respondent,
who was the “author of his own fate”. Until the date of
arbitration, the respondent had not apologised
for his conduct which
impacted on the trust relationship. The dismissal was therefore found
to have been substantively fair, with
the respondent’s years of
service neither amounting to a licence to commit misconduct with
impunity nor providing sufficient
reason to interfere with the
sanction imposed by the appellant.
Judgment
of the Labour Court
[12]
Aggrieved with the
findings of the arbitrator, the respondent sought the review of the
arbitration award by the Labour Court. The
Court took the view that
there was no evidence that the Cassims were dissatisfied with the
appellant or that the respondent’s
refusal to apologise to them
had impacted negatively on the appellant. This was so despite the
Court’s finding that the respondent
had written an apology and
agreed to attend the meeting with the Cassims. Although it was found
that it was “without question”
that “there was some
degree of culpability or misconduct on the part of the [respondent]
resulting from his failure to tender
an apology”, the
respondent had taken legal advice and indicated that he would only
apologise after the appeal. The Court
took the view that the Cassims’
anger was directed only at the respondent and that the failure to
render an apology did not
bring the appellant into disrepute and did
not constitute conduct which warranted dismissal given the
circumstances of the matter
and the respondent’s length of
service.
[13]
The sanction imposed
was found to be “unnecessarily harsh” and the award was
set aside. Since the Court stated that
it was not in a position to
substitute or prescribe an appropriate sanction for the misconduct
committed, it noted that nothing
prevented the appellant from
imposing an appropriate sanction on the respondent’s return to
work. The arbitration award was
therefore set aside and substituted
with the order that the respondent be reinstated into his previous
position with the appellant.
Submissions
on appeal
[14]
It
was argued for the appellant that “(p)rovided the right
question was asked and answered by the arbitrator, a wrong answer

will not necessarily be unreasonable”.
[1]
Placing reliance on the decision of this Court in
Timothy
v Nampak Corrugated Containers (Pty) Ltd (Timothy)
[2]
it was argued that determining whether the appellant company had been
brought into disrepute by the conduct of the respondent required
all
the circumstances, the nature of the conduct, its turpitude and
seriousness of it, to be considered objectively. The circumstances

indicated that the respondent had broken the duty of trust by
bringing the appellant into disrepute in refusing to apologise to
the
Cassims for his conduct; and that given the impact of his conduct on
the appellant and his prior disciplinary warning, the
decision to
dismiss him was appropriate and fair.
[15]
Counsel for the
respondent strongly disputed that the misconduct committed by the
respondent was of a serious nature. During argument
before us, the
respondent’s behaviour was somewhat downplayed with it
submitted that it did not warrant dismissal. In addition,
it was
argued that to dismiss the respondent after 33 years’ service
because of a “spat in a driveway” after
the “utter
mishandling of the disciplinary process” offended against any
reasonable person’s sense of justice
and equity. Although it
was accepted that the Labour Court did not expressly state that the
decision reached by the arbitrator
was one that a reasonable
decision-maker could not reach, it was argued that it effectively
found as much. It was suggested that
the respondent’s refusal
to apologise to the Cassims on 17 October 2016 was correctly viewed
by the Court as a qualified
refusal. The arbitrator failed to
appreciate that the conduct did not bring the appellant into
disrepute and it was stated that
the arbitration award was neither
rational, nor reasonable, and the decision to dismiss was
unnecessarily harsh and inducing a
sense of shock. As a result, the
arbitration award fell to be set aside. Since reinstatement is the
primary remedy, it was appropriate
to reinstate the respondent
although the order of reinstatement should properly have been
clarified by the Labour Court to make
it clear that it was
retrospective up to the date the respondent would have been
retrenched. In the alternative, an order of compensation
was sought
in the amount of R432 000,00, being the equivalent to 12 months’
remuneration.
Evaluation
[16]
In
Herholdt
v Nedbank
Ltd
(
Congress
of South African Trade Unions as Amicus Curiae
),
[3]
it was held that a review of an arbitration award is permissible if
the defect in the proceedings falls within one of the grounds
in
section 145(2)(a) of the LRA:
‘
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. Material errors of
fact, as
well as the weight and relevance to be attached to particular facts,
are not in and of themselves sufficient for an award
to be set aside,
but are only of any consequence if their effect is to render the
outcome unreasonable.’
[4]
[17]
The
Labour Court treated the review application which came before it as
an appeal and not a review. The Court failed to have regard
to
whether the decision of the arbitrator was one to which a reasonable
arbitrator could not reach in the manner contemplated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others (Sidumo)
.
[5]
The submission made on behalf of the respondent that although the
Court did not expressly state that the decision reached by the

arbitrator was one that a reasonable decision-maker could not reach,
it effectively found as much, is simply not sustainable having
regard
to the reasoning and judgment of the Court. There is no mention made
by the Court of the test against which it was required
to consider
the award, nor of the reasonableness or otherwise of the decision of
the arbitrator. It cannot, therefore, be implied
that the Court
undertook the review on the basis required when the approach and
language of the Court suggests the contrary. As
a consequence, the
approach of the Labour Court to the review of the award was plainly
incorrect with the result that the decision
of the Court is one that
cannot be sustained on appeal.
[18]
In
undertaking the task impartially, an arbitrator is required to take
into account the totality of circumstances. As was made clear
in
Sidumo,
[6]
this includes the importance of the rule that had been breached, the
reason the employer imposed the sanction of dismissal, the
basis of
the challenge to the fairness of the dismissal:
‘
There
are other factors that will require consideration. For example, the
harm caused by the employee’s conduct, whether additional

training and instruction may result in the employee not repeating the
misconduct, the effect of dismissal on the employee and his
or her
long-service record. This is not an exhaustive list.’
[19]
Remarkably, the
respondent refused, even in this appeal, to accept the seriousness of
his misconduct and its impact on either the
Cassims or his employment
relationship with the appellant. The clear evidence was that as an
older man, the respondent had misconducted
himself in a patently
unacceptable, unwarranted, threatening, abusive and intimidatory
manner towards a woman and her son within
the confines of the
appellant’s premises without any justification. Nevertheless,
in spite of the seriousness of that misconduct,
the appellant elected
to implement progressive discipline providing the respondent with a
final written warning on the basis that
he apologises to the Cassims
given his extensive years of service with the appellant and clean
disciplinary record.
[20]
The respondent
initially appeared to accept the sanction imposed on him, drafted an
apology to the Cassims for his behaviour and
agreed to meet with them
to tender such apology. However, instead of doing so, the respondent
made his disdain for the meeting,
called at his instance, evident
from the fact that he arrived 20 minutes late, without explanation or
apology. He then refused
to apologise, which conduct was patently
rude to the Cassims, who were under no obligation to attend the
meeting and left it outraged
at the treatment received from the
respondent. In behaving as he did, the respondent was disrespectful
to both the Cassims and
the appellant. This amounted to a refusal to
comply with the first disciplinary sanction imposed despite the
appellant and the
Cassims having acted on his prior indication that
he would do so and apologise. Furthermore, his refusal to take
responsibility
for his actions and the manner of his hostile response
to the Cassims at the meeting arose in circumstances in which he had
received
a final written warning for similar misconduct.
[21]
In
Timothy
[7]
this Court made it clear that progressive discipline is –
‘
designed
to bring the employee back into the fold, so as to ensure, by virtue
of the particular sanction, that faced with the same
situation again,
an employee would resist the commission of the wrongdoing upon which
act the sanction was imposed’.
[22]
Far from taking heed
of the final written warning that had been imposed on him, in
refusing to apologise and behaving as he did,
the respondent chose
not to comply with the terms of the sanction imposed and engaged in
misconduct similar to that previously
committed. Even if the
appellant had obtained legal advice to appeal the first disciplinary
sanction, this did not justify his
conduct either in agreeing to have
the Cassims invited to attend the meeting to allow him to apologise
to them or in his adopting
the hostile approach that he did to them
at the meeting. In conducting himself as he did the respondent’s
conduct had a direct
impact on his employment relationship. This was
so in that in the face of the opportunity given to him to remediate
his behaviour
and apologise for it, he refused to do either. The
appellant was not obliged either to accept or overlook such repeated
misconduct
on the part of the respondent, nor to extend any further
leniency to him when he had refused to remediate his behaviour. In
these
circumstances, dismissal was an appropriate operational
response to the repeated misconduct committed by him, despite his
long
service and clean disciplinary record. The decision of the
arbitrator that the dismissal of the respondent was fair fell within

the ambit of reasonableness required. The Labour Court ought
properly, on application of the proper test, to have found as much
on
review.
[23]
For these reasons the
appeal must succeed. There is no reason in law or fairness why costs
should be awarded in the matter.
Order
[24]
The following order
is therefore made:
1.
The appeal succeeds.
2.
The order of the
Labour Court is set aside and substituted as follows:
“
The
review application is dismissed.”
Savage
AJA
Phatshoane
ADJP agrees.
PHATUDI AJA
[25]
I have had an opportunity to read the judgment penned by my colleague
Savage AJA, (main judgment)
and am appreciative for her valuable
recital of the factual matrix in this matter. Savage AJA concludes
that the appeal against
the decision of the Labour Court (“court
a quo
”) must succeed. I am, however, unable to agree
with the outcome in particular, that the appeal succeeds, and
therefore, resulting
in the dismissal of the review application. That
outcome effectively, has an adverse impact consequential on the
sanction imposed,
namely, dismissal of the respondent. It is strictly
on the dismissal of the respondent that I have difficulty, for the
reasons
that follow:
[25.1]
At the conclusion of the disciplinary hearing, the chairperson with
regard to the sanction
stated, among others that:
‘
I
note that these offences are very serious and could possibly warrant
dismissal. I, have however, taken into account the employee’s

33 years’ service and his clean disciplinary record---
I have also
noted his
expression of intent to reconcile with Mrs. Cassim and her son
.
I, therefore, believe that the mitigating factors are strong enough
to
reduce the sanction to a final written warning
, provided
that Mr Singh gives Mrs Cassim and her son
apology
and an
undertaking to refrain from any further negative interactions with
them.’ (Emphasis added)
[25.2]
Properly analysed, the following interpretations emerge from part of
the sanction:
[25.2.1]
The chairperson took into account the respondent’s
33 years of
service and his clean disciplinary record;
[25.2.2]
Noted the employees’ (Mr Singh) expression of intent
to
apologise to Mrs Cassim and her son;
[25.2.3]
That, the sanction be reduced to “a final written
warning”,
provided that;
[25.2.4]
The respondent (Mr Singh) tenders an “apology”
to the
Cassims.
[26]
Crucially, it was at the first disciplinary hearing that the
chairperson noted Mr Singh’s
expression of intent to reconcile
with the complainants. The apology, needless to mention, was not
specified by the chairperson
as to when, where or how it was required
to be conveyed by Mr Singh to the Cassims.
[27]
Be that as it may, on 13 October 2016, in line with the chairperson’s
recommendations,
the respondent dispatched an email to his line
manager Mr Coleman (“Coleman”) stating that:
‘
Please
note that as per the chairperson’s recommendations, I, S.
Singh, do hereby and without prejudice do humbly apologise

unconditionally to Charmaine and her son with regards to the incident
that occurred in the drive way on the 21
st
of
September 2016.’
Coleman arranged a
meeting at the workplace with the parties on 17 October 2016 where
the respondent was expected to tender his
apology verbally to the
Cassims.
The analysis
[28]
The view I take in this regard is that Singh did “humbly
apologise” though “without prejudice”
in his email
dated 13 October 2016 to the Cassims. However, in the meeting Coleman
called on 17 October, the respondent could not
apologise as expected
on the basis of legal advice he obtained from his attorneys and that
he, in any event, intended to internally
appeal the ruling. He did
not flatly refuse to apologise.
[28.1]
I do not understand this turn of events to warrant fresh
prosecution
of the charges preferred in the “second hearing” where
Singh was eventually dismissed. Furthermore, his
intention to
vindicate his rights in order to exhaust internal remedies, is
enshrined in the appellant’s Disciplinary Code
and Procedures.
(Paragraph 2.7.1) (“code”) To my mind, this is a proper
platform to exercise his right to appeal, internally
especially
within the
dies
allowed by the said code. The respondent’s
failure to apologies over and above his email sent beforehand, should
not have
been construed as contemptuous refusal to do so. His
inability or failure to verbally tender his apology in that meeting,
could
not, in my view, amount to a
mala fide
conduct intended
to damage the appellant company’s reputation. This is because
the inter-personal impasse between the Cassims
and Singh, was not
casually linked to employer-employee relationship or a breach of
trust in an employment set-up that could reasonably
have caused
reputational damage. The fact that the Cassims were irate by Singh’s
right to appeal, or that Coleman himself
was left “embarrassed”,
was not a conduct which justified a dismissal.
[28.2]
To demonstrate his genuineness, the respondent later on
that day
posted the second email to Coleman in terms of which he “apologised
for not apologising” to the Cassims as
directed. He was,
therefore, contrite, and sought to atone himself.
[28.3]
It was these developments that precipitated the institution
by the appellant of the second charges of misconduct against
the respondent. Failure or alleged refusal to apologise to anyone for

misconduct is in terms of section 4 of the appellant’s Code,
not listed as one of the offences that could possibly have a
damaging
effect on the appellant’s reputation, nor cause to a breach of
trust between the employer-employee relationship.
This is simply
because, among others:
[28.3.1]
The appellant’s company was not a party to the personal impasse
between the Cassims
and Singh;
[28.3.2]
The misconduct (first charges) complaint of was laid not by the
employer, but by Mrs
Cassim, an employee of Media 24;
[28.3.3]
It is inconceivable how the chairperson, therefore, could have
reasonably causally
connected that personal dispute to the company’s
reputation, nor a breach of trust (failure to apologise) between the
appellant
and Singh. There was therefore insufficient nexus for the
appellant to have formulated the “second” charges.
[29]
In the light of these considerations, the reasoning of the
chairperson of the “second”
hearing stating that the
respondent’s conduct has “impacted negatively on the
company with a client and tenant resulting
in the organisation being
brought into disrepute, was, in my view, manifestly flawed. This is
simply because the Cassims are not
employees of the appellant nor its
tenants, let alone its business associates. Furthermore, the fact
that Coleman felt “embarrassed”
by Singh’s failure
to apologise, I would say again, when no cogent evidence which
allegedly damaged the reputation of the
company was adduced, tainted
or vitiated the outcome of that hearing.
[30]
To that extent, the finding made by the court
a quo
that:
‘
The
second respondent (arbitrator) patently failed to conclude from the
evidence of the first respondent’s witnesses themselves
and the
documentation that, firstly, the issue surrounding the apology was
patently part of the outcome of the disciplinary inquiry…’

cannot be faulted.
It was
this failure, in my view, that led the arbitrator astray arriving as
he did, at a decision no reasonable decision-maker could
reach.
[8]
The court
a
quo
,
therefore, correctly set aside the arbitration award since the nature
and degree of the seriousness of the infraction, whatever
one looks
at it, could not have truly justified the dismissal in the
circumstances.
[31]
The observation I make above finds refuge in the passage from Revelas
J J in
Toyota
SA Manufacturing v Radebe & Others
[9]
that;-
‘
[18]
However, these principles do not dictate that mitigating
circumstances such as taken into account by the third respondent
should influence the result or sanction that should be applied. In
other words,
dismissal
is not knee-jerk response to all cases of dishonesty, without
exception - - -
He took into account
mitigating circumstances, presented on the evidence before him, and
he found that
sanction other than dismissal should be applicable
in this matter
.’ [ emphasis added]
[32]
I fully subscribe to the principle espoused in the foregoing passage
that not every infraction,
however serious in some instances it may
be, that it should mechanically be seen to amount to knee-jerk
response to all (mis)conduct
particularly if it is not in any way
destructive to the employer’s business operations. A
decision-maker is, therefore, enjoined
to consider, thoroughly, all
relevant evidence placed before him/her in mitigation of sanction. In
the instant matter, the chairperson
(first hearing) had, in my view,
correctly applied his mind to the mitigating circumstances presented
by recommending a final written
warning and directing that the
respondent should offer his apology to the Cassims in relation to the
“first” disciplinary
hearing. This approach had
undoubtfully placed him in a vintage view to select a fair and
reasonable sanction as he did.
[33]
It is trite
principle
that substantive
fairness refers to a valid and fair reason to dismiss. Conversely, a
valid reason is not
per se
fair.
‘
A
fair reason means that, considering all the circumstances, dismissal
is the only appropriate sanction; no alternative sanction
can be
considered. It is generally accepted that dismissal is justified in
circumstances as where the employment relationship has
become
intolerable or
where
the trust relationship between employer and employee has
irretrievably broken down.
[10]
[34]
In the instant case, the chairperson of the “second hearing”
did not live up to the
above stated threshold as no substantive
evidence was presented before him to justify the reasonableness of
the dismissal. This
view derives from the fact that: “Before
the employer decides on dismissal, alternatives to dismissal should
be considered.
Is dismissal the only possible sanction, or will
an alternative sanction be more appropriate in the circumstances?
Mitigating
circumstances
must
be
considered before deciding on a sanction.”
[11]
A
positive approach to discipline is required rather than a punitive
one. The chairperson in the “second hearing” departed

from this norm without providing plausible reasons. This departure,
in my view, constituted grave irregularity that the court
a
quo
correctly
redressed by setting aside the award.
[34.1]
Furthermore, the reasoning of the chairperson of the “second
hearing” in an attempt to justify the respondent’s
dismissal, his subjective speculations for instance, that he was

“suspicious considering that he (Singh) wrote an email to
Coleman indicating what his apology would be” or that Singh

“tailored his evidence” in the meanwhile since he was
found to have “had second thoughts about the apology”
and
thus escalated the dispute at the meeting with Cassims that “embarked
on a route that simply aggravated the already existing
dispute”,
were all assumptions of speculative conjecture, to say the least.
There was no factual basis to support these far-fetched
assumptions.
[34.2]
To that end, the court
a quo
’s findings
inter alia
,
that the angry attitude adopted by the Cassims after Singh failed
(not refused) to apologise, was in relation to the refusal and
that
in itself could not tarnish the appellant’s reputation, were
conclusions which, in my view, cannot be assailed on appeal.
I agree
that the sanction was found to be “unnecessarily harsh”
given the mitigating factors, and the respondent’s
unblemished
record of clean service over three (3) decades loyal to the employers
could not have been suddenly obliterated.
[34.3]
Failure by the respondent to give an apology was not capricious. He

was desirous to exercise his right to exhaust internal remedies,
namely, to appeal against his dismissal.
[35]
Section 3(b) of the Labour Relations Act, 1995
[12]
(“the LRA”) requires that a person interpreting this Act
must do so
“
in
compliance with the Constitution”. The right to appeal
internally in order to vindicate one’s labour law remedies
must
therefore, be in line with the Constitution and the LRA. In
casu
,
such an inherent right to resolve “any dispute” that can
be resolved by application of law before a court or, where

appropriate, another independent and impartial tribunal or forum,
vests in section 34 of the Constitution.
[13]
The respondent have the right of recourse to this remedy. It is in
the internal appeal forum constituted by the appellant which
Singh
sought to approach before he could tender apology to the Cassims on
17 October 2016. To have seen this right as a breach
of the
employer’s trust merely because Singh failed to apologise was,
in my view, unreasonable, if not a violation of his
right to fair
labour practices and therefore, untenable.
[36]
In
Timothy
v Nampak Corrugated
Containers
(Pty)
Ltd,
[14]
this court stated
that the decision whether conduct of an employee brought the company
into disrepute requires all the circumstances,
the nature of the
conduct, its turpitude and seriousness of it, if any, to be
considered objectively. The chairman of the second
hearing, once
again, failed to consider the objective factors referred to, before
he could impose dismissal as a sanction.
Conclusion
[37]
I have in reaching my dissent on dismissal of Singh, where
appropriate alternative sanction was
available at the employer’s
disposal, largely deferred to the guidance in
Booi
v Amathole District Municipality & Others
[15]
where the Constitutional Court in analysing the purpose of section
193(2)(b) of the LRA, also gave a detailed exposition of the
high bar
of “intolerability”, implying a “level of
unbearability”, short of the working relationship that
is
thought “difficult, fraught or even sour”. The view
expressed by Khampepe ADCJ in
Booi
,
she said, was 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 be easily reached,
and that
the
employer must provide weighty reasons, accompanied by tangible
evidence, to show intolerability”.
This
salutary
approach
was absent at the latter hearing of the disciplinary enquiry. It
could not even have escaped my attention that “intolerability”

at the workplace or work relationship should not be confused with
mere “incompatibility” between the parties.
This is what, in my
opinion, the chairperson did not bear in mind before the dismissal
was sanctioned at the “second hearing.”
[38]
On a conspectus of all of the foregoing considerations, the
conclusion I reach is that the decision
of the commissioner was
correctly set aside by the court below. Therefore, I would have
dismissed the appeal with no order as to
costs, and substituted an
order of reinstatement made by the Labour Court with an order that of
compensation.
[39]
In the result, I would propose that the appellant, (Paar Goldset
(Pty) Ltd) or its successor
in-title be ordered to pay the respondent
(Mr Sir Singh) compensation in the amount of R432 000.00, being
equivalent of twelve
(12) months remuneration.
MG Phatudi
Acting Judge of the
Labour Appeal Court
APPEARANCES:
FOR
APPELLANT:
G A Fourie
SC
Instructed
by Crawford & Associates
FOR
RESPONDENT:
P J Blomkamp SC
Instructed
by Vather Attorneys
[1]
Head
of the Department of Education v Mofokeng and others
[2015]
1 BLLR 50
(LAC) at para 33.
[2]
[2010]
ZALAC 29
;
[2010] 8 BLLR 830
(LAC); (2010) 31 ILJ 1844 (LAC).
[3]
2013
(6) SA 224
(SCA);
[2013] 11 BLLR 1074
(SCA); (2013) 34 ILJ 2795
(SCA).
[4]
At
para 25.
[5]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[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) with reference to
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
[2004] ZACC 15
;
2004
(4) SA 490
(CC);
2004 (7) BCLR 687
(CC)
.
[6]
At
para 78.
[7]
[2010]
ZALAC 29
;
[2010] 8 BLLR 830
(LAC); (2010) 31 ILJ 1844 (LAC) at 1850.
[8]
Carephone
(pty) ltd v Marcus N.O & Others
1999
(3) SA 304
(LAC) at para [37]. See also
,
Sidumo & Another v Rustenburg Platinum Mines Ltd
and
Others
2008
(2) SA 24
(CC) at paras [106-110].
[9]
Toyota
SA Manufacturing v Radebe & Others
(1998)
19 ILJ 1610 (LC
)
,
para
[18].
[10]
Du
Plessis J V & Fouche M A,
A
practical guide to Labour Law
(Lexis
Nexus 9
th
ed
2019) p348.
[11]
Ibid
p 348.
[12]
Act
66 of 1995, as amended.
[13]
The
Constitution of the RSA, 1996, as amended.
[14]
[2010]
ZALAC 29; [2010] 8 BLLR 830 (LAC).
[15]
2022
(3) BCLR 265
(CC); (2022) 43 ILJ 91 (CC) para [40].