THE LABOUR APPEAL COURT OF SOUTH AFRICA, GQEBERHA
Not Reportable
Case no: PA 05/2023
In the matter between:
ALGOA BUS COMPANY (PTY) LTD Appellant
and
TASWU obo XOLISWA MZAWI First Respondent
BOTHA DU PLESSIS N.O. Second Respondent
SOUTH AFRICAN ROAD PASSENGER
BARGAINING COUNCIL Third Respondent
Heard: 05 September 2024
Delivered: 10 September 2024
Coram: Van Niekerk JA, Nkutha-Nkontwana JA & Jolwana AJA
___________________________________________________________________
JUDGMENT
___________________________________________________________________
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VAN NIEKERK, JA
Introduction
[1] This first respondent (employee) was employed by the appellant as a bus
driver until her dismissal on 17 March 2021, after she was found guilty of r eckless
and negligent driving and causing an accident. The employee’s challenge to the
fairness of her dismissal was dismissed by the second respondent (arbitrator), but
upheld by the Labour Court (per Nzuzo AJ), which reviewed and set aside the
arbitrator’s award and reinstated the employee with retrospective effect . With the
leave of this Court, the appellant appeals against that order.
The arbitration
[2] At the time of the incident that gave rise to her dismissal, the employee had
been employed for some six years. The e vents that gave rise to her dismissal and
the arbitration hearing occurred on 26 February 2021, when at 17h38, the employee
was involved in a serious collision with a minibus taxi. The accident occurred in
Kariega, an area familiar to the employee and on a route that she frequently
travelled.
[3] T he charge against the employee was that she had driven through the
intersection against a red traffic light, thus causing the accident. The employee
denied the charges brought against her – her defence was that she had driven
through the intersection on an amber light. The arbitrator had regard to video footage
of the incident, recorded by a camera mounted in the bus driven by the employee,
which showed clearly that the traffic light had turned red before the employee
entered the intersection. The employee’s own witness conceded as much. In so far
as the employee had testified that the actions of the taxi had caused the accident in
that it drove through a red traffic light to her left, the arbitrator found that the footage
showed that it was the employee who drove through a red traffic light and collided
with the taxi, “which also happened to go through a red traffic light on his side” . The
arbitrator concluded that the fact that the taxi went through a red traffic light did not
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exonerate the employee – she ought to have slowed down when the light turned
amber. Had she had done so, the accident would not have occurred. As the
arbitrator put it:
‘This dispute is not about what the taxi did, it centres on the actions of the bus
driver who hit another vehicle. In fact, one can conclude that both drivers
acted irresponsibly. But it is the conduct of the applicant that I am dealing with
and not the conduct of the taxi.’
The arbitrator noted further that according to the video footage, there was ample
distance to the intersection from the moment the traffic light turned amber for the
employee to bring the bus to a stop. The footage revealed that far from attempting to
do so, the employee accelerated from that distance to where the accident occurred.
To the extent that the employee contended that the accident w as not serious since
no one was injured, the arbitrator stated:
‘That reasoning does not hold water – [the] fact of the matter remains that she
contravened the Road Traffic Rules. There might have been no accident if
she had followed the Traffic Rules. She argued that she had approached the
intersection with caution, however, she increased her speed according to the
footage which displayed the speed.’
[4] In so far as the employee challenged the consistency of the appellant’s
application of discipline, the arbitrator noted that the appellant’s disciplinary code
provided for a final written warning for the offence of driving through a red traffic light,
unless there were consequences, in which case the prescribed penalt y was
dismissal. The comparator employees to whom the employee referred had received
final written warnings for driving through red traffic lights, but none had caused an
accident. The employee’s reliance on the inconsistency that she alleged was thus
dismissed.
[5] The arbitrator came to the following conclusion:
‘31. Drivers were independently responsible for the business of the
respondent on the road. The applicant was a professional driver and ought to
have known that her conduct was not correct. The evidence led at this
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arbitration suitably persuaded me that the applicant was correctly found guilty
at her hearing.
32. The applicant was not remorseful about her behavior but continued to
conjure up elaborate reasons for her actions. Her insistence that she did not
do anything wrong despite overwhelming evidence to the contrary gives an
impression that she would most likely repeat this behavior.
35. My inescapable conclusion is that the employee was involved in gross
misconduct and that a sanction of dismissal is appropriate for the above
offences and in line with company policies and the code – I agree with the
evidence that the employee’s actions have undermined the trust on which the
employment relationship was built, and thus justifies her dismissal. In doing
so, I have considered all factors and the arguments.
36. The respondent’s implementation of a sanction of dismissal was fair
under the circumstances. The employee provided me with no credible or
reputable evidence as to why I should not uphold her dismissal. The version
from the respondent was more credible.’
The Labour Court proceedings
[6] The employee filed an application to review and set aside the arbitrator’s
award. In the application, the deponent to the founding affidavit, a union official,
asserts, among other things, that the arbitrator had a duty to consider the
surrounding circumstances to determine whether the sanction of dismissal was fair.
In particular, it was contended that the minibus taxi was ultimately responsible for the
collision, and that had the minibus taxi “ not been solely to blame for jumping a red
light, the [employee’s] position would have been exactly the same as all of the other
employees who jumped red lights and she would just have received a final written
warning”. The latter reference is to the evidence given by the appellant’s manager
that other employees found guilty of driving through a red traffic light had previously
been issued with final written warnings, but only in circumstances where the driver
concerned had not caused an accident. Of some significance in t he present
proceedings is the following submission:
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‘The [arbitrator’s] finding in relation to the aspect of the seriousness and that
the argument does not hold water was incorrect and unreasonable (sic). The
[arbitrator] had a duty t o determine whether the accident was serious as the
[employee] was charged with that. The [arbitrator] also had a duty to consider
the surrounding circumstances as per the policy to enable the [arbitrator] to
determine whether the sanction was fair.’
The deponent asserted that the arbitrator had thus arrived at conclusions and made
findings that no reasonable commissioner in the position of the arbitrator could have
made, thus rendering the award ‘grossly irregular and reviewable’. The employee did
not file a supplementary affidavit. In essence, the review was sought on the basis of
a challenge to factual conclusions reached by the arbitrator relating to the
employee’s conduct, and on what was contended to be a failure by the arbitrator to
determine whether the accident was serious and to consider the surrounding
circumstances, as he was required to do by the appellant’s disciplinary code and
procedure.
[7] The Labour Court accepted the arbitrator’s factual findings in relation to the
existence of the misconduct alleged by the appellant. Specifically, the C ourt found
that the employee had approached the intersection at 40 km/h when the traffic light
was amber, that she made no attempt to slow down, on the contrary, she
accelerated, and that the traffic lights had turned red before she entered the
intersection. The C ourt accepted too that on the evidence, the employee had been
correctly found guilty of the misconduct for which she was dismissed.
[8] The Court then turned to the second leg of the fairness enquiry ( i.e. the
appropriateness of the sanction of dismissal), and found that the appellant had been
obliged at the arbitration hearing to adduce evidence to sustain its contention that
dismissal was an appropriate sanction and that its failure to do so was fatal to its
opposition to the employee’s claim of unfair dismissal. In particular, the Court held:
‘[13] In order to establish fairness of the sanction of dismissal, the
[employer] must put forward evidence to sustain the allegation that dismissal
was in fact an appropriate sanction. This requires evidence, for example, that
the trust relationship between the employer and employee had broken down.
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Put differently, an employer can dismiss fairly if it can prove that there was a
transgression, the nature as well as the effect or impact of which was such as
to make the sanction of dismissal appropriate…’
And further:
‘[15] The employer has the burden of proof in the sense of a persuasive
burden – it must place enough material and facts before the decision-maker to
persuade such person that the sanction of dismissal was fair. …
[16] I am not persuaded by the argument proffered on behalf of the
[employer] suggesting that the effect of the employee’s misconduct to the
employment relationship is no longer an issue that needs to be considered in
determining whether dismissal was warranted or not. I hold a view that this
remains one of the crucial requirements of a fair dismissal for misconduct, and
enquiry which the commissioner is enjoined to make in the determination of
dismissal as a fair sanction. In such an instance, the employer is enjoined to
establish that the contravention of the rule by the employee was sufficiently
serious to warrant dismissal. The test frequently used when assessing the
appropriateness of dismissal is the effect that the employee’s misconduct
have (sic) on the employment relationship.
[17] It is difficult to fathom how a dismissal is substantively fair in a matter
where no evidence, showing that the employment relationship has been
rendered intolerable, was led. While I accept that there are certain acts of
misconduct which are of a more serious nature that not even the absence of
evidence as to the effect as to the effect of misconduct to the employment
relationship can save an employee who is guilty of them from dismissal. Such
acts of misconduct are those that antithetical to any employment ( i.e. Gross
dishonesty and assault).
[18] I am not satisfied that the act of misconduct for which the [employee]
was charged and dismissed falls within that category, the commissioner has
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not concluded otherwise, with the result that evidence as to the suitability of
dismissal ought to have been led for the determination of fairness of the
applicant’s dismissal. I have perused the transcribed record of the impugned
proceedings and I found no such evidence. My inescapable conclusion
therefore is that the commissioner’s conclusion that the dismissal was fair in
the circumstances of the case was not based on the material before him but
on speculation on his part. In my view, the decision reached by the
commissioner is one that a reasonable decision- maker could not reach. The
arbitrator’s conduct in this regard constitute (sic) misconduct, one which
renders his award reviewable by this court.’
[9] The Labour Court went on to find that in terms of the appellant’s disciplinary
code and procedure, the decision- maker had to exercise a discretion in the
determination of a suitable sanction. The appellant’s disciplinary code recognises
degrees of recklessness and negligence, dependent on prevailing conditions, the
nature of the misconduct and actual and potential consequences. The guidelines on
penalty range from a final written warning to unpaid suspension and dismissal. the
Labour Court found that there was no evidence as to the suitability of the sanction of
dismissal –
‘That evidence would have shown that why dismissal, which is harsher than
other punitive measures for misconduct, was preferred over others. This
evidence would have enabled the commissioner to make his own assessment
that the dismissal was not imposed capriciously. Without evidence as to the
suitability of the sanction of dismissal, there was no basis on which the
commissioner could have come to the conclusion that the dismissal was
substantively fair. The commissioner was not in a position to speculate on
what evidence might have been placed before him showing that dismissal
was warranted in the circumstance.’
[10] The Labour Court concluded:
‘[21] I must ascertain whet her the comm issioner considered the principal
issue before him, evaluated the facts presented and came to a conclusion that
is reasonable… In my view, the commissioner’s findings on the fairness of the
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[employee’s] dismissal fall outside the bounds of reasonableness based on
the evidence that was placed before him.’
[11] In the result, the employee was reinstated into the appellant’s employ, with
effect from the date of her dismissal.
Analysis
[12] In my view, the Labour Court erred in upholding the review. The Labour Court
misconceived the nature of the enquiry to be made in the determination of the
appropriateness of dismissal as a sanction and incorrectly decided that the award
should be set aside on account of the appellant’s failure to adduce evidence at the
arbitration hearing concerning the suitability of dismissal as a sanction.
[13] First, while the appellant’s disciplinary code and procedure provide that the
degree of seriousness of the misconduct, the nature of the misconduct and the
actual or potential consequences are relevant factors in the determination of an
appropriate penalty, it is hardly the case that there was no evidence before the
arbitrator in respect of these issues, nor is the case that his conclusion was
‘speculative’. Ms Mpengesi, who testified for the appellant, stated that the incident
was serious, and that the prevailing conditions were such that the road was clear
with nothing obstructing the driver. Further, the employee had accelerated rather
than applied her brakes to bring the bus to a stop, as she was obliged to do. The
potential consequences of the driver’s conduct are also serious, if not fatal. The
arbitrator concluded, after a review of the totality of the evidence and the factual
conclusions that he had drawn, that the sanction of dismissal was both appropriate
and in line with the appellant’s disciplinary code and procedure. To the extent that Mr
Higgs submitted that the arbitrator had misdirected himself because the appellant
had led no evidence at the arbitration hearing regarding the seriousness of the
accident, or whether it constituted a major or minor incident , the fact that these
factors receive specific mention in the code, does not require evidence to be led in a
mechanistic fashion, in some isolated sense, regarding each of these factors – they
are better considered in the context of the evidence as a whole. This is precisely
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what the arbitrator did. The arbitrator considered the facts before him in a holistic
fashion (as he was obliged to do), and came to the conclusion that , having regard to
all the relevant factors, dismissal was an appropriate sanction. In the course of his
consideration of an appropriate sanction, he clearly had regard to the seriousness of
the employee’s misconduct, the actual and potential consequences and importantly,
the employee’s mendacious denial of any misconduct. As this Court has previously
stated, the acknowledgement of wrongdoing is the first step towards rehabilitation.
1
In the present instance, the employee refused to take even that first step. In short:
the arbitrator’s assessment of the evidence regarding the appropriateness of
dismissal as a sanction cannot be faulted.
[14] Secondly, and more fundamentally, the Labour Court erred to the extent that it
considered that the arbitrator had committed a reviewable irregularity by deciding to
uphold the employee’s dismissal, in the absence of specific and discrete evidence
concerning a breakdown of trust or deterioration in the employment relationship. The
determination of the fairness or otherwise of a dismissal involves a moral or value
judgment, to be made by the presiding arbitrator, after considering all of the relevant
factors and circumstances. Sidumo & another v Rustenburg Platinum Mines &
others
2 (Sidumo) specifically enjoins arbitrators to “ consider all relevant
circumstances” (own emphasis added).3 The absence of any specific evidence
adduced in an arbitration hearing regarding a breakdown or deterioration in the
employment relationship is thus not a basis to set aside an arbitrator’s decision to
uphold a decision to dismiss. As this Court has observed,
4 the existence of serious
misconduct can in itself lead to a finding that a dismissal should be upheld, without
evidence of any breakdown in trust. Indeed, the CCMA Guidelines on Misconduct
Arbitration
5 (Guidelines) repeat the injunction to make a value judgment as to the
fairness of the employer’s decision to dismiss, taking into account all of the relevant
circumstances. To the extent that the Labour Court held that it was necessary for the
appellant to lead such evidence as a necessary condition for a finding of unfair
1 De Beers Consolidated Mines Ltd v C ommission for Conciliation, Mediation and Arbitration & others
[2000] ZALAC 10; (2000) 21 ILJ 1051 at para 25.
2 [2007] ZACC 22; [2007] 12 BLLR 1097 (CC).
3 Ibid at para 79.
4 Woolworths (Pty) Ltd v Mabija & others [2016] ZALAC 5; (2016) 37 ILJ 1380 (LAC).
5 GN R224 in GG 38573 of 17 March 2015, at item 93.
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dismissal, that is not the law. In National Union of Metal Workers of South Africa v
Commission for Conciliation, Mediation and Arbitration and others6, the Labour Court
provides a useful summary of developments post-Edcon Ltd v Pillemer NO and
others.7 Both this Court and the Labour Court have consistently held that there is no
general obligation on an employer to lead evidence as to the appropriateness of
dismissal as a sanction or any breakdown in the trust relationship, nor is there some
limited category, as the Labour Court appears to suggest, in whi ch an employer may
be relieved of such an obligation (the Labour Court gave the examples of assault
and dishonesty) . Any deterioration in the trust relationship between employer and
employee may be a relevant or even significant factor in the determination of the
fairness or otherwise of a dismissal, but it is not a determinative factor. More often
than not, the evidence of the nature and extent of the employee’s misconduct will be
sufficient for an arbitrator to exercise the required value judgment on the fairness of
dismissal as a sanction. The Labour Court’s finding that absent any evidence as to
the suitability of dismissal as a sanction for the employee’s misconduct , her
dismissal was axiomatically unfair, constitutes a misconception of the applicable
legal principles. The arbitrator did precisely what he was required to do – he made a
moral or value judgment based on the totality of the evidence before him. It is difficult
in these circumstances to appreciate how it can be said, as the Labour Court found,
that he committed any gross irregularity. Specifically, there is no basis for the Labour
Court’s conclusion that the arbitrator’s conclusion was based on ‘speculation’. All of
the evidence that served before the arbitrator spoke to the magnitude of the
employee’s misconduct – she breached a workplace rule, and the rules of the road,
with calamitous consequences.
[15] Thirdly, the absence of any reviewable irregularity would ordinarily result in
the award under review being upheld. But even if the present matter were to proceed
to t he second leg of the review enquiry (i.e. whether the outcome met the
reasonableness threshold, regardless of any irregularity committ ed by the arbitrator )
when the totality of the evidence is considered. At this stage, in order to succeed on
6 [2023] ZALCPE 6 ; (2023) 44 ILJ 1575 (LC). See also : Impala Platinum Ltd v Jansen and others
[2017] 4 BLLR 325 (LAC); G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero NO and others [2016]
ZALAC 55; (2017) 38 ILJ 881 (LAC).
7 [2009] ZASCA 135; (2009) 30 ILJ 2642 (SCA).
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review, the applicant “must demonstrate that no reasonable commissioner could
have opted for the sanction (or lack thereof) in question” .8 The threshold for review
when an arbitrator’s decision on sanction is sought to be set aside is deliberately set
high – whether the arbitrator considered the sanction of dismissal to be too harsh (as
in Sidumo),9 or as in the present case, where the arbitrator considered the penalty of
dismissal to be fair. Either way, a review court cannot intervene simply because it
thinks that the arbitrator was wrong, or because it would have rendered a different
decision on the same evidence.
[16] In the present instance, there can be no question that the arbitrator’s decision
is one to which a reasonable decis ion-maker could come. On the evidence placed
before the arbitrator , there is no basis to conclude that his decision to uphold the
employee’s dismissal fails to meet the reasonableness threshold. The evidence
discloses the appellant’s reasons for imposing the sanction of dismissal. These
include a concern at the gravity of the employee’s misconduct and its potentially fatal
consequences. The facts that served before the arbitrator (and confirmed by the
Labour Court) include a deliberate decision by the employee to accelerate prior to
reaching the intersection, even though the traffic light had turned amber, in
circumstances where she ought to have braked to bring the bus to a timeous halt.
Instead, the employee failed to have regard to the amber traffic light and bring the
bus to a timeous halt. Instead, she took a deliberate decision to drive the bus into the
intersection, against the red traffic light. The employee’s conduct caused a collision
with a minibus taxi, laden with passengers. The employee was employed on a basis
in which she was entrusted with the lives of passengers. There was also evidence of
the employee’s conduct in the ar bitration hearing – she showed no remorse for her
conduct. Instead, she dishonestly persisted with the false version that she had
crossed the intersection on an amber traffic light. There was nothing in the record of
the arbitration proceedings to indicate that the employee took cognisance of the
scale and seriousness of her misconduct – on the contrary, she did not seem to
regard the incident as particularly deserving of censure. It is self -evident from the
evidence that the employee, who showed no remorse or capacity for reform, that the
8 A Myburgh, C Bosch, ‘Reviews in the Labour Court’, LexisNexis, at p301.
9 Ibid.
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employment relationship was irretrievably compromised. The employee’s
intransigence suggests that corrective discipline was unlikely to cure her behavio ur.
As the arbitrator put it: “ Her insistence that she did not do anything wrong despite
overwhelming evidence to the contrary gives an impression that she would most
likely repeat this behaviour ”. It is difficult to imagine evidence more damning of the
employee’s conduct and its damaging effect on the employment relationship
between her and the appellant. Indeed, Mr Higgs conceded as much when he
submitted that any shortcomings in the Labour Court‘s judgment could be remedied
by confining the remedy to one of compensation.
[17] In sum: contrary to what the Labour Court held, there is no obligation in law
on an employer to adduce evidence on the appropriateness or suitability of dismissal
as a sanction for misconduct, as a necessary condition for any finding of unfair
dismissal. An arbitrator making a decision on the appropriateness of dismissal as a
sanction for misconduct must make a value judgment, taking into account all relevant
facts and circumstances. A breakdown in trust or deterioration in the employment
relationship may be inferred from the evidence regarding these facts and
circumstances. Finally, there is nothing in the record to indicate that the arbitrator’s
decision to uphold the employee’s dismissal is a decision to which a reasonable
decision-maker could not come. That being so, it was not open to the Labour Court
to interfere with the award. The appeal thus stands to be upheld.
Costs
[18] Neither party pursued an order for costs, and none will be granted.
[19] I make the following order:
Order
1. The appeal is upheld with no order as to costs.
2. The Labour Court’s order is set aside and substituted by the following:
‘The application is dismissed’.
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A van Niekerk JA
Nkutha-Nkontwana JA et Jolwana AJA concur.
APPEARANCES:
FOR THE APPLICANT: Adv F le Roux
Instructed by Joubert Galpin Searle
FOR THE FIRST RESPONDENT: Mr C Higgs, Higgs Attorneys Inc.