About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2024
>>
[2024] ZALCJHB 297
|
|
Van Straaten v Wehnche and Others (JR1876/21) [2024] ZALCJHB 297 (23 February 2024)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
No: JR 1876/21
In
the matter between:
SHANE
VAN STRAATEN
Applicant
and
COMMISSIONER
JULIES WEHNCKE
First
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
Second
Respondent
OUTA
(ORGANIZATION
UNDOING TAX ABUSE)
Third
Respondent
Heard:
9 January 2024
Delivered
:
23 February 2024
Summary: Review
proceedings – Application to review and set aside the
arbitration award made by the First Respondent on 24
August 2021
pursuant to the arbitration in which the First Respondent found that
the dismissal of the Applicant was both procedurally
and
substantively fair.
Held – Racism –
the Applicant’s remark made on Facebook constituted racism. The
Applicant’s defence that
he exercised his right to freedom of
expression was unsubstantiated. The dismissal of the Applicant was
procedurally and substantively
fair. Costs ordered against the
Applicant on an attorney-and-client scale.
JUDGMENT
SWANEPOEL,
AJ
Introduction
[1]
This is an application to:
1.1
Review and set aside the arbitration award issued by the First
Respondent dated 24 August 2021 under case number GAJB 13256/20;
1.2
Should the Applicant be successful in regard to prayer 1, that the
matter between the Applicant and Third Respondent not be remitted
for
a new hearing at the CCMA but that it be dealt with and decided by
this Court;
1.3
The Respondent is to be ordered to pay the costs of the application
should the Applicant be able to secure legal counsel to represent
the
case on a contingency fees agreement in terms of which they will
receive no fee unless the application succeeds with costs,
we
accordingly ask for costs in our favour so that they may be
compensated for their work;
1.4
Granting the applicant such further or alternative relief as the
Court deems fit.
[2]
The Applicant also filed an application to amend his Notice of Motion
adding the following prayers:
2.1
Prayer 3 – The Third Respondent is to be ordered to reinstate
the Applicant on terms not less favourable than those that
applied
prior to his dismissal and the Third Respondent is ordered to pay the
Applicant whatever he was entitled to earn for his
retrospective
reinstatement from the period of 12 July 2020 to be confirmed and
decided by this court;
2.2
Prayer 4 - That should this Court find that the actions of the Third
Respondent are so vulgar and distasteful that attack the very
foundation of the right to protection and the right to fair practices
of vulnerable employees deem it necessary to award compensation
for
the suffering and hardship forced on the Applicant that the award be
the maximum amount allowed by the Honourable Court bearing
in mind
that a single person within the Respondent’s employ earns
equivalent or more in one month than that what the Applicant
earned
in an entire year.
[3]
The Third Respondent opposed the relief sought and stated that the
Applicant’s claim was vexatious at best, had no merits
and was
a blatant abuse of the Honourable Court and its processes. Given the
nature of the Applicant’s conduct not only bringing
these
proceedings but also his conduct towards Mr Singh as well as the
Third Respondent, it was fitting that a punitive cost order
be made
on an attorney and own-client scale.
[4]
During argument, Mr Londt stated that the Third Respondent did not
take issue with the above-mentioned amendment as it did not
add
anything new to the original Notice filed.
The
facts
Applicant’s
submissions
[5]
The matter related to the alleged unfair dismissal of the Applicant
by the Third Respondent. The Applicant disputed both the procedural
and substantive fairness of his dismissal.
[6]
I pause to record that the Applicant was a layperson and presented
pleadings which seemed to at times deal with irrelevant assertions,
averments, and comments. I do not intend to regurgitate all the
allegations contained in his founding affidavit and will focus
on
those that the Third Respondent took issue with.
[7]
The Applicant denied the allegations against him, challenging the
substantive and procedural fairness claiming that the chairperson
of
the hearing had been biased, that the witnesses were not credible and
that misconduct as well as criminal misconduct had taken
place.
[8]
During the arbitration proceedings, the First Respondent did not
concede to recuse himself, the Applicant launched a Labour Court
application, which was denied, and the matter was referred back to
the CCMA.
[9]
The grounds for review were stated as follows:
9.1
Altering/tampering with transcripts of the disciplinary hearing.
9.1.1
The First Respondent could not, once he became aware of it decide
that it was irrelevant, or ignore or suppress it.
9.1.2
The First Respondent had a legal duty to ventilate the matter, deal
with the matter and take the necessary steps and come to a
finding.
9.1.3
The First Respondent remained silent.
9.1.4
The Third Respondent did not dispute or challenge it during
cross-examination of the Applicant.
9.1.5
This indicated that the First and Third Respondents had been working
together.
9.1.6
The First Respondent could have reopened the case and recalled
witnesses but by his very silence was an active participant in the
unlawful misconduct or made himself complicit or an accessory to the
criminal misconduct.
9.2
That the First Respondent committed a gross irregularity by ignoring
statutory requirements or legal principles and misconducted
himself
by not having wanton regard to decided cases of the Honourable Court
in making the order by.
9.2.1 Conducting a
hearing
de novo
by conducting the literal interpretation of
the term
de novo
not supported by the Labour Court or the
Constitutional Court.
9.2.2
Making reference inter alia of the First Respondent not being
interested in whether the Applicant was found guilty at the
disciplinary
hearing since this was a new hearing.
9.3
That the First Respondent failed to determine the nature of the
dispute/enquiry and arrived at an unreasonable result.
9.3.1
The First Respondent was asked when he was dismissed and when the
Applicant stated that he believed it was on 12 June and added
that he
needed to know whether dismissal was in dispute, to which the Third
Respondent responded. The First Commissioner then explained
that if
dismissal was in dispute the onus would be on the Applicant and that
it would not serve him if he tried to be difficult.
9.3.2
The First Respondent explained the definition of gross
insubordination and that he was not there to review the hearing or
the
chair (person), nor was it an appeal, but a hearing
de novo
,
that the First Respondent then explained that he would look at the
facts afresh and make a decision whether it was fair.
9.3.3
That the First Respondent then explained that Charge 2 could be
lumped to Charge 1 and that it was not necessary to include the
rest
of the case to prove elements of Charge 2. When did this change and
the Applicant suspected that the First Respondent played
an active
role or that the Third Respondent had presented their intended case
had outside intervention or insurance that such course
of action
would be guaranteed and assurance that the First Respondent would
shield them.
9.4
That the First Respondent was biased towards the Third Respondent and
its witnesses in that he unduly assisted one or other party
with his
case and or interrupted/preventing the Applicant from cross-examining
the Third Respondent’s witnesses.
9.4.1
That the First Respondent knew by reading the transcripts and the
Applicant’s closing argument and the case of the disciplinary
hearing in the Third Respondent’s file how he would set about
questioning the witness and the First Respondent’s actions
and
conduct could only be because he had decided to sabotage the
Applicant’s case and defence and the First Respondent
improperly
interrupted the Applicant’s cross-examination of the
witness Mr Singh by rushing the Applicant and cutting the Applicant
short preventing the Applicant from questioning and putting forward a
defence depriving the Applicant a fair hearing.
9.4.2
That the First Respondent interrupted the Applicant’s
questioning and blocked the Applicant on numerous occasions.
9.5
That the First Respondent improperly interrupted the evidence
presented by the Applicant in advancing his case or defence which
resulted in the Applicant not receiving a fair hearing.
9.5.1
The First Respondent asked that the Applicant re-do his bundle as in
one PDF file, index and paginate it and email it. On 27 July
2021,
the First Respondent went through the bundle and stated that the
pre-disciplinary hearing, applications done after the hearing,
and
admissions such as warnings and written warnings testified to false
the deletion and/or destruction of the disciplinary record
the First
Respondent stated were not relevant or issues before him, and that
the crux of the matter was the comment (made) to Mr
Singh as the only
evidence to be dealt with.
9.5.2
The First Respondent stated that the disclosure record was important
to the Applicant as it showed admissions as to the disciplinary
hearing recordings and other facts and admissions which the First
Respondent also stated were not relevant to the matter, and that
if
it did not exist, it did not exist.
9.5.3
The First Respondent refused to print all the documents as he could
not waste CCMA resources and there were only a few relevant
documents.
9.5.4
The Applicant was told to focus on the case presented, pointing out
which documents could be printed, and upon the resumption of
the
matter the Applicant again raised his unhappiness with the fact that
he was forced to leave out documents and that he had to
strip his
defence bundle, to which the Applicant responded that he was not
ready to continue. The First Respondent said that the
Applicant had
to state his case and if he was not ready to give evidence, he would
have no other choice but to either dismiss the
case or find in favour
of the Third Respondent.
9.6
That the First Respondent failed to appreciate or attach any weight
to the inconsistencies and improbable versions placed before
him by
the Third Respondent and its witnesses and failed to apply his mind,
misconstrued, and ignored certain evidence led at the
arbitration.
9.6.1
The Third Respondent totally disregarded and ignored the Applicant’s
testimony as well as his written submission of closing
argument,
which is shown in the award virtually reflecting nothing of the
Applicant’s closing submissions and undisputed
testimony
presented.
9.6.2
The case faced by the Applicant was two charges, one of racism and
the second of gross insubordination using Facebook postings
to
sustain the second charge.
9.6.3
The Third Respondent abandoned and did not present evidence or
testify as to the Applicant’s Facebook postings used to bring
charge 2, yet the First Respondent still found the Applicant guilty.
9.6.3.1The First
Respondent summarised the charge in his findings in paragraph 67 of
the award: “You
are accused of racism for directing
offensive remarks towards a member of the public on Facebook. You
were previously cautioned
about the dangers of social media and
disregarded management’s advice. In addition, you were bound by
a clear social media
Policy and Code of Conduct. Your actions brought
the employer’s name into disrepute”.
9.6.3.2Evidence led by
the Applicant and in the testimony which went undisputed showed that
the media policy introduced, replaced
Section 6 of the Media Policy
and Code of Conduct.
9.6.3.3What also was not
disputed was that the Third Respondent had no clear Social Media
Policy, therefore the Third Respondent
fabricated this story in
making such a finding and the First Respondent had in all essence
created a new single charge when the
question called for a verdict on
both charges.
9.6.3.3.1The case
presented was not the case originally faced and had to defend against
the following will be established that the
response/comment to Mr
Singh was not the only violation or conduct used to charge and find
the Applicant guilty of and reach a
sanction which resulted in
dismissal.
9.6.4
The First Respondent found the Chairperson to be a credible witness,
and also found the second witness, Mrs Klazar was found an
excellent
witness contradictory where Mrs Klazar was caught out on various
occasions with different versions and contradictions.
9.6.5
The First Respondent blocked, interrupted and sabotaged the
Applicant’s cross-examination of Mr Singh when the Applicant
was attempting to bring it across.
9.7
That the First Respondent failed to appreciate that the Third
Respondent had an improper motive for bringing the charges and
committed
an irregularity and misconduct of a gross nature by his
further actions.
9.7.1
The Applicant had claimed that the Third Respondent had an improper
motive for bringing the charges against him. Part of this contention
was based on the belief that the Third Respondent fearing that they
would be unable to prove the first charge, then sought to implicate
the Applicant in another form of misconduct which they then
fabricated and then cherry-picked postings from his social media
accounts
to sustain the second charge. The second charge was always
going to be relied upon and the second charge had been decided before
the addition of the first charge.
The
arbitration award
9.8
That the Third Respondent interpreted the Applicant’s testimony
as unprofessional misconduct, sad and pathetic.
9.9
That at para 41, which stated that “
the Applicant denied
that there was any policy regulating social media in the workplace.
Even if there was one, it did not apply
to him. He claimed that it
can never be said that his own views on social media represent that
of the Respondent because he has
freedom of speech. He could not
remember ever attending social media training but admitted that it
was mandatory for everyone”.
This goes to the First
Respondent’s dishonesty and lack of integrity.
9.10
At paragraph 57, 58 and 59 as to the credibility and honesty of the
witnesses was again unprofessional misconduct.
9.11
Paragraph 60 stated that “
Mr Singh also lodged a complaint
with the SAHRC and reported the incident to the Respondent, this
undoubtedly had the potential
to bring the Respondent into
disrepute”
. This again went to the First Respondent’s
dishonesty and lack of integrity when it was the First Respondent
that prevented
and blocked the Applicant during cross-examination of
this very questioning.
9.12
At paragraph 61 it was stated that: “
it did not matter that
the post made by the Applicant was done in his personal capacity. His
utterances and online presence were
clearly linked to his employment.
Freedom of speech is not an absolute right. The Applicant failed in
his duty to act in the interests
of the Respondent”.
Such a
finding and interpretation as to a policy being so interpreted is
overbroad and results in overreach and is just sad and
unreasonable
and sets the bar very low for freedom of speech as one can be linked
to their employment through clothing or cell
phone account or a loan
application or the attendance to school by the children of parents, a
bank account or home loan and countless
other methods some required
by legislation.
9.13
The First
Respondent quoted
Rustenburg
Platinum Mine v SAEWA obo Bester
and
Others
[1]
when the Applicant had quoted two most recent Constitutional Court
(CC) cases;
Qwelane
v South African Human Rights Commission and Another
[2]
(Qwelane).
9.13.1 When looking
at the Applicant’s alleged racist posting one is required to
look at all possible external factors.
9.14
At paragraph 65 – “
The Applicant correctly conceded
that because the post emanated from his Facebook, he was most
probably responsible for the contents.
He further conceded that the
Respondent’s media and communications policy provided as
follows and that he was aware thereof…”.
9.14.1 Conceding
was not an admission, furthermore it was not for the Applicant to
admit to anything or to make out the Third
Respondent’s case,
it is for the Third Respondent to prove its case which the First
Respondent in his findings and assessment
of evidence seemed to fail
to such basic understanding of what the requirement was.
9.14.2
A media policy should be interpreted in its entire context, and it
could never be said this media policy which dealt with interactions
within the work environment and on work social media accounts and
with official work-related interactions or engagements remotely
represents or constitutes a social media policy in an employee’s
private life.
9.15
In
paragraph 69, when the First Respondent referred to the
South
African Revenue Service v Commission for Conciliation, Mediation and
Arbitration and others
[3]
(
SARS
)
even then the guilty party got a compensation award. The utterances
of the “K” word in the workplace against his team
leader
a senior manager, in that case, compared to the utterance of the
Applicant of the words “
immigrant
Paki”
.
Paki was a word used every day and was not a slur but an
internationally recognised abbreviation just like the word “
Aussie,
Leb, Pora, Sim”
and countless others. It was recognised in three countries as a
racist slur and hate speech because, in these three countries,
the
word in nearly all cases was followed by violence known as “
Paki
Bashing”
.
9.16
That the
Third Respondent cherry-picked postings or comments made by the
Applicant on his social media (account) or in his personal
life which
resulted in disciplinary action and sanction that infringed upon his
right to belief, conscience or political opinion
or
curtailed/suppressed his right to freedom of expression and that this
would constitute an automatically unfair dismissal as
contemplated in
Section 187(1)(f) of the Labour Relations Act
[4]
(LRA).
9.17
The Applicant also filed a supplementary affidavit, which I do not
intend to repeat, safe to state that it had been perused and
taken
into account and that the averments made in closing would be the only
aspects recorded herein.
9.17.1 Everything
that the Applicant testified to or led evidence to was in the Third
Respondent’s file presented to
arbitration or other parts
presented to the parties and as such must remain undisputed and the
Third Respondent did not cross-examine
or dispute or disprove the
Applicant’s evidence.
9.17.2 The First
Respondent on numerous occasions unsuccessfully instructed and
attempted to force the Applicant to only deal
with the first charge
of the racist comment as that was the only relevant issue before this
arbitration.
9.17.2.1The fact that the
Third Respondent used other charges and offences during the
disciplinary hearing in order to find the
Applicant guilty and
dismiss him made a material difference to the case. It would go to
substantive and procedural issues, furthermore,
the fact that the
Third Respondent chose to abandon that part of its case in order to
conceal and prevent their own misconduct
and illegal action from
being ventilated and knowing that such a case of using a person’s
personal comments or postings regarding
his constitutional right of
political opinion, belief or conscience and freedom of expression
would result in an automatically
unfair dismissal finding before a
statutory arbitration or before a Court did not detract from the fact
that this was what the
Third Respondent had done.
9.17.3 If the
Applicant were to accept the First Respondent’s view that he
was to focus on what he considered the only
relevant issue before him
being the posting of Mr Singh as per A89 line 10: “
It’s
not gone Sir, it relates to the same issue so for present purposes, I
look at the true nature of the dispute and the
true reason for your
dismissal and I have explained myself on record previously as to what
the true allegation against you.
A 128 line 38 SS; ‘
this
is an OUTA project not in my name. Com:’ But how does that
relate to the posts because when they the Respondents are
trying to
dictate to me the way to think of speak, I say not in my name I don’t
allow abuse of government departments or
state capture or anything of
the sort of censorship or anything of the sort to happen in my name.
I am not even going to allow
my employer to do it. Not in my name and
our employer has stayed away from controversial subjects because of
makes no difference
right or wrong they just don’t want the
controversy that goes with it whether it is BEE Affirmative Action
they don’t
want the controversy no matter what I mean who was
it the SAHRC a year ago they had already come and said Affirmative
action is
unconstitutional so my beliefs and my opinions remain my
beliefs and my opinions they protected right I mean they are a
protected
right”. (sic)
9.17.4 The
Respondent did not dispute that the posting to Mr Singh was not a
response to an attack by Mr Singh on the Applicant,
even in
cross-examination of the Applicant.
9.17.5 Besides the
First Respondent’s best efforts to interfere, sabotage and
interrupt the Applicant and his cross-examination
of Mr Singh the
Applicant proved four critical admissions from the witness.
9.17.5.1Singh said “…
you attacked my basic honour and reputation
…” it
would be a very sad day when the bar for racism is set so low as so
non-existent when two people are engaged
in insulting one another
when one can claim racism simply based on skin colour.
9.17.5.2Singh
stated
“Okay, I think being called a cake like Mr Du Preez called me a
cake I think that is an insult but when you and yes
I may have said
that work immigrant Paki is not what really irks me, but it is the
use of the words against a person of my colour
that’s what
makes it racist”
. Honour and reputation – which the
Applicant stated he believed the most recent CC case dealt with these
very issues.
9.17.5.3That the witness
omitted his own comments or postings that illicit insults or attacks
upon himself and then came up with
his narrative of what transpired,
9.17.5.4Besides the
various lies and changing stories proved against the witness during
cross-examination; and
9.17.5.5That the witness
admitted to provoking/ attacking people to entrap them and take the
matter further. This was the very definition
and behaviour of an
internet troll.
9.17.5.6The Applicant
stated that he transcribed the record of the arbitration himself and
the further transcripts namely KDJ and
NS and a video of Kerry Erin
and swore to the fact that they were done with honesty and integrity.
The
Third Respondent’s contentions
[10]
The Third Respondent filed its answering affidavit, and presented the
following comments on the averments made by the Applicant:
10.1 The Third
Respondent did not agree with the content regarding the
altering/tampering with the disciplinary hearing records
and the
contentions made by the Applicant pertaining to the issues raised by
the Applicant.
10.2 With regards
to the issue raised that the First Respondent ignored the statutory
or legal principles it did not comment
other than to note the
averments made by the Applicant.
10.3 It stated that
the Applicant twisted the First Respondent’s words with regard
to transcripts and inconsistent statements
made and contended that
the First Respondent plainly stated that he was concerned with giving
the Applicant a fresh hearing and
considering all the evidence
presented before him by the parties anew. He was not prepared to
consider irrelevant evidence, and
whether the Third Respondent was
able to discharge its onus in consideration of evidence relevant to
the question of whether or
not the Applicant’s dismissal was
unfair and was prepared to consider transcripts of the disciplinary
enquiry if the Applicant
was able to demonstrate that statements made
by witnesses during the disciplinary enquiry were inconsistent to the
evidence presented
during the arbitration process. It was added that
the Applicant distorted the evidence in his statements. The First
Respondent
did nothing unfair, the Applicant was the one who refused
to listen to the First Respondent's reasoned explanations and
persisted
with nonsensical explanations for his disagreement with the
Chairperson, thus delaying the proceedings.
10.4 The contention
by the Applicant that the First Respondent failed to determine the
true nature of the dispute was incorrect,
and that nothing that the
First Respondent stated in regard to the question of whether or not
the Applicant was dismissed could
be construed as showing bias of
creating a reasonable suspicion of bias. The First Respondent’s
words were a matter of fact
to the extent that the onus rested on the
Applicant to prove dismissal and if such onus was not met the
Applicant’s claim
was to be dismissed.
10.5 The Respondent
agreed with the First Respondent’s words that the Applicant was
to establish exactly the basis of
his challenge against the (Third)
Respondent in regard to procedural unfairness and that such a basis
should be factually grounded
in respect of actual elements of
procedural unfairness. This had to, in turn, be put to the (Third)
Respondent’s witnesses
by the Applicant. The Applicant’s
statement was that the Chairperson was aggressive towards him,
however, he was unable to
demonstrate how the Chairperson acted
aggressively towards him and what the Chairperson did against him
that was aggressive. The
explanation offered by the Applicant as to
why he found the First Respondent’s statement problematic was
incoherent at best.
This seemed to suggest that the Applicant be
allowed to challenge inconsistent statements by witnesses. If this
indeed was what
the Applicant wished to express or convey, then there
could be no further argument in this regard as the First Respondent
had already
afforded the Applicant the opportunity to utilise the
transcripts for the purpose of proving previously inconsistent
witness statements.
10.6 The Applicant
had been given numerous opportunities to place before the First
Respondent the ground upon which he relied
insofar as his claim of
procedural unfairness was concerned, and on numerous occasions, the
First Respondent had to explain to
the Applicant that the grounds he
presented did not constitute elements of procedural fairness but
rather concerns themselves with
the substantive aspects of the
matter.
10.7 There was
nothing said by the First Respondent in regard to the question of
whether or not the Applicant was dismissed
that could be construed as
showing bias on his part, let alone the probability of his words
creating a reasonable suspicion of
bias. The First Respondent’s
words were matter of fact to the extent that the onus was on the
Applicant to prove dismissal
and if such onus was not met, the First
Respondent had to dismiss the claim.
10.8
The Third Respondent agreed with the First Respondent that an
arbitration was a hearing
de novo
and that the commissioner
had to narrow the issues down in order to deal with what was in fact
in dispute. The First Respondent
was thus able to make determinations
of relevance in respect of the evidence to be considered. The
Applicant had not demonstrated
that the First Respondent was in any
way biased towards the Third Respondent. In fact, the First
Respondent was extremely patient
with the Applicant in that he
repeated these aspects to the Applicant on multiple occasions so as
to try and explain them to the
Applicant and to help him understand.
The First Respondent showed enduring patience towards the Applicant
and was in no way hostile
towards him.
10.9
The First Respondent at no time “lumped” the charges
together. On page A3 of the Applicant’s transcriptions of
the
arbitration proceedings. In lines 41 to 53, the First Respondent made
himself clear about how the charges were formulated and
ought to be
formulated. He indicated that the second charge might relate to the
first charge, which it indeed was, and that an
employer was entitled
to charge an employee in the alternative or bring an additional
charge. The First Respondent further spelt
out the import of the
second charge, being gross insubordination, being different from the
charge of racism, discrimination, and
conduct unbecoming of an OUTA
member towards a member of the public.
10.10
The allegations of bias of the First Respondent related to the
Applicant’s cross-examination of Mr Singh and that such bias
happened in the form of interrupting his cross-examination of Mr
Singh, blocking him from asking questions and rushing him. Since
this
related to a general approach, as the conduct of the Third Respondent
that the Applicant complained about, the Third Respondent
opted to
comment accordingly without referring to the various examples raised.
The First Respondent was well within his authority
to prevent
irrelevant lines of questioning by the Applicant in order not to
waste time. The Applicant’s cross-examination
of the witness
was limited to the ambit of the witness’ testimony and versions
given by him whilst testifying. The First
Respondent had the
authority to ask clarifying questions, whether to seek clarity for
the purpose of his understanding or to ascertain
whether or not the
subject matter submitted was relevant.
10.11
The Applicant had not provided any grounds for his allegations that
the First Respondent sabotaged his case and that the First
and Third
Respondents made common purpose with one another. The Applicant made
allegations of tampering with the recordings of
the proceedings but
did not explain the specific portion of the record that had been
tampered with and by whom. It seemed as though
the Applicant was
referring to conversations that were held off the record that he
insisted were recorded to should have been recorded
at the beginning
and end of the proceedings. He suggested that all conversations
should be recorded, this could not be further
from the truth. Any
recordings not forming part of the proceedings should rightly be
deleted. No recordings of conversations that
were not part of the
proceedings should take place. These allegations were vague,
embarrassing, and unsubstantiated. There was
nothing untoward
regarding the First Respondent engaging in conversation with the
Third Respondent’s representative regarding
having to “summon”
the Third Respondent’s witnesses who refused to testify. The
First Respondent’s role
was to oversee proceedings and ensure
that parties were not treated unfairly. The Third Respondent was
allowed to avail itself
of the mechanisms in the Commission for
Conciliation, Mediation and Arbitration (CCMA) rules that were
provided for in the circumstances
where a witness refused to
willingly testify. The witness in question was Mr Singh and he was
one of the key witnesses in the matter
as he was the person to whom
the Applicant directed his racist and discriminatory comment.
10.12
In his supplementary affidavit the Applicant referred to pages A79 to
page A89, line 45 of the CCMA transcriptions in support of
his
various submissions in each of the paragraphs. He contended that the
First Respondent deprived him of a fair hearing on account
of
disallowing his entire bundle which consisted of over 600 pages and
instead reduced its contents. The contents of the bundle
excluded by
the First Respondent were so excluded solely on the basis that they
were not relevant to the reason for his dismissal,
this being the
comment that he posted on Facebook directed at Mr Singh. The First
Respondent was extremely assistive to the Applicant
in reconstructing
his bundles and putting his papers in order and spent a considerable
amount of time during the proceedings doing
this for the Applicant.
Despite their lack of relevance, the Applicant’s allegation
that the Third Respondent destroyed recordings
from the disciplinary
hearing was completely unfounded and scandalous.
10.13
The First Respondent on page A81 from lines 19 to 27 put the second
charge into clear perspective. He clarified that no evidence
was
tendered in respect of the second charge and that the Third
Respondent squarely focused on the first charge and that he was
of
the preliminary view that there could be a splitting of charges as
the second charge related to the first charge, being his
misconduct
on social media. This was the First Respondent's finding in regard to
the curtailment of issues for consideration in
the hearing and thus
the foundation laid by the First Respondent when deciding whether or
not to admit evidence in the Applicant’s
bundle based on
relevance.
10.14
In reply to the Applicant’s averments that the First Respondent
failed to appreciate or attach any weight to the inconsistencies,
contradictions and wholly improbable versions placed before him by
the Third Respondent and or its witnesses, and or applying his
mind
to and misconstruing, ignoring certain evidence and facts led, the
Third Respondent contended that the Applicant was avoiding
the real
issues in dispute by adopting illogical reasoning and false
statements to create confusion. The common cause facts were
simple.
On page A432, an email was presented which was sent by Klazar to the
Applicant as far back as 2017. The content of this
email was clear
and self-explanatory. It informed the Applicant that he had to remove
all defamatory, inappropriate, or insulting
comments from his
personal account. This was due to the fact that as an employee his
comments represented the organization and
any comments that brought
the organization into disrepute would not be tolerated, and that he
refrains from making any further
inflammatory remarks in order to
avoid formal action. No in-depth interpretation of this was required.
10.15
The Third Respondent also had two policies that forbid the
Applicant’s misconduct. The first being the Code of Conduct and
Business Ethics introduced in 2017, commencing on page A417 and the
Media and Communications Policy, commencing on page A437, introduced
in November 2019. It sufficed not to comment on the applicable
clauses of the respective policies for the purpose of this affidavit,
suffice was to say that the Third Respondent forbade comments made by
employees on their personal interests and in their personal
capacities that directly or indirectly brought the Third Respondent
into disrepute, including those constituting racial and other
forms
of discrimination. The Applicant’s denial of the existence of
these policies could not be sustained, notwithstanding
that he signed
an attendance register in respect of training on acceptable social
media practices.
10.16
It was never the Applicant’s case that he did not publish the
post, neither did he advance a case of it having been someone
else
who published the post. The Applicant’s attacks on the
character, integrity, conduct and partiality of the First Respondent
were unwarranted to the extreme. For the Applicant to accuse the
First Respondent of criminal conduct was extremely serious indeed
and
was in itself a demonstration of the Applicant’s contempt for
the CCMA and the dignity and high standing of this honourable
Court.
10.17
The Applicant attempted to justify his deplorable and unacceptable
racist comments towards Mr Singh referring to his right to freedom
of
speech. This right was not absolute and was limited to the extent
that it violated the rights of others, Mr Singh in this case,
and his
right not to be unfairly discriminated against. The Applicant further
attempted to justify his conduct by suggesting that
Klazar was a liar
in regard to the frequency of social media reports generated by her
on an annual basis, which suggestion was
clearly and blatantly
untrue, as she was referring to two different types of reports, being
a quarterly risk report excluding the
aspect of social media risk,
and a social media risk report that she generated twice per year.
10.18
The Applicant further tried to justify his conduct in the most
profoundly absurd and reprehensible manner by accusing Mr Singh
of
being dishonest, of provoking and insulting people. Altered his story
in order to make him look like “
the victim or innocent
party”
. This is when the evidence presented was crystal
clear on the basis that Mr Singh was insulted and degraded. The
Applicant called
Mr Singh a “Paki”. Mr Singh was an
Indian male of Muslim faith. On page A401, a screen grab of Mr
Singh’s reply
to the Applicant was included. In his reaction,
he uses the words “
not all Asiatic persons of colour are
Paki or immigrants… I seriously am baffled by your
unprecedented attack on me”.
On page A407, a certain Riaan
Swanepoel, unknown to the Applicant or the Third Respondent,
responded: “
Shane van Straaten Seriously! Racism and
xenophobia in one comment...?”
In his affidavit on page
A411 at paragraph 7, Mr Singh stated,
inter alia
as follows: “
I took some time to compose myself as I was extremely overwhelmed
by such an overtly racist and demeaning statement, especially in
a
public forum and without eliciting such a response from Mr Van
Straaten, as I had no prior engagement with him”.
It could
not be denied that Mr Singh felt extremely offended on the basis that
the Applicant made a racist comment against him.
10.19
On the allegation by the Applicant that the First Respondent failed
to appreciate that the Third Respondent had an improper motive
for
bringing the charges and committed an irregularity and misconduct
himself of a gross nature, it submitted that the Applicant’s
claim of improper motive against the Third Respondent was completely
outlandish, unfounded and without substantiation and corroboration.
It was in the best interest of the Third Respondent, especially after
receiving the complaint from Mr Singh, that a search be done
on any
other similar incidents that might have occurred and of which the
Third Respondent had no prior knowledge. This was to mitigate
against
any risk to the Third Respondent that might result should there be
such posts and no action was taken in respect of them.
It just so
happened that further offending posts by the Applicant were
discovered. The Third Respondent was well within its rights
to charge
the Applicant in respect of all offending posts by the Applicant
after he recited the cautionary email in 2017.
10.20
The Applicant, in his averments regarding the arbitration award,
continued to conjure up unfounded allegations of bias against
the
First Respondent and continued with his unrelenting vexatious attack
on the First Respondent’s conduct. The denial of
the existence
of the aforementioned policies and their application to him were
completely baseless even though these policies existed
and applied to
the Applicant as an employee of the Third Respondent. The Applicant
at no time presented conclusive evidence to
prove that he did not
post the offending comments. Instead, he tried to justify his posting
thereof. He continues to do so in this
application. The complaint to
the SAHRC had absolutely no bearing on whether or not he was fairly
dismissed. The First Respondent
correctly found that freedom of
speech was not an absolute right and the Applicant’s submission
that this amounted to the
policy being given an overbroad
interpretation on the reasons advanced by the Applicant was
inconceivable.
10.21
The
Applicant’s interpretation of the case authorities he quoted
was completely incorrect, nonsensical and did not advance
the real
issue of whether or not the comment posted on his Facebook account,
directed at Mr Singh was racial or not. The
ratio
decidendi
of the CC in the
Rustenburg
Platinum Mines v SAEWA obo Bester
[5]
was not that each matter be decided on its merits. This was a
universally observed tenet. The precedent set by this matter in
summary was that a reasonable objective and informed person would, on
the correct facts perceive the comment in question to be racist
and
derogatory. This was the very case that neutralised any justification
for his comment that the Applicant offered to this Court.
10.22
The Third Respondent completely disagreed with the Applicant’s
submissions regarding the interpretation of the Media and
Communications Policy. It was apposite to state that the Applicant,
possibly selectively so, failed to deal with the Code of Conduct
and
Business Ethics, as these policies were submitted together and were
read together to evidence the rules contravened by the
Applicant
through his conduct. The Applicant, by omitting to mention the Code
of Conduct and Business Ethics relied on selected
portions of the
policy of which he could attempt to manufacture an interpretation to
suit his weak arguments of bias against the
First Respondent. The
Applicant’s submissions related to freedom of speech were
futile and irrelevant.
10.23
The Applicant advanced an illogical argument regarding the
interpretation of the 2017 email as well as the respective policies.
These arguments were incorrect and an attempt by the Applicant to
once again justify his deplorable conduct where he knew that
there
could be no exoneration for him in respect thereof. These stood to be
dismissed.
10.24
The averments made by the Applicant that the First Respondent held
him to more stringent conditions and that the Applicant had
to prove
the Third Respondent’s case was preposterous. It was
inconceivable as to how the Applicant drew the inference that
the
First Respondent’s findings in respect of the Applicant's
conduct as a witness suggested that the reverse onus provision
did
not apply to the Applicant, especially after repeated explanations to
the Applicant by the First Respondent that the employer
carried the
onus in misconduct dismissal matters.
10.25
The First Respondent made a logical inference based on the facts of
the matter and the Applicant’s deplorable conduct, that
the
relationship between the Applicant and the Third Respondent had been
damaged beyond repair and was completely correct in making
the
inference.
10.26
The
SARS
judgment that the Applicant interpreted was incorrect
and cherry-picked to suit him. The facts in the matter when compared
to this
one were completely different and related to the employer
altering a disciplinary enquiry outcome from a sanction short of
dismissal
to one of dismissal. This gave rise to the CC confirming
the compensatory aspect of the Labour Court’s judgment.
Conversely,
the Applicant in this matter was in fact dismissed at his
disciplinary enquiry for making racist comments.
10.27
The same
applied to the
Qwelane
judgement. The Applicant misconstrued it, and it was irrelevant to
these proceedings. The matter related to the narrowing down
to
wording of certain sections of the Promotion of Equality and
Prevention of Unfair Discrimination Act
[6]
(Equality Act). Unlike the Applicant’s submissions, it dealt
with the publication of a document alleged to contain hate speech.
It
did not change the law in a manner that would exonerate the Applicant
from liability for his actions. The Applicant posted the
comment on
his Facebook page and should thus accept the consequences arising
therefrom.
10.28
With reference to the supplementary affidavit filed, the Third
Respondent proffered the following responses:
10.28.1The Third
Respondent disputed that everything that the Applicant testified to
or led evidence about or was not cross-examined
on remained
undisputed.
10.28.2Mr Singh clearly
testified that the Applicant’s post was an unlawful and
unprovoked attack on his basic honour and
reputation and that the use
of the words “
immigrant Paki”
against a person of
his colour made it racist. He differentiated the insult from the
Applicant from the insult from Du Preez in
calling him a “cake”
on this basis. The former was an attack on his race, the latter bore
no reference to his race
whatsoever. The Applicant tried to make
light of this by saying that one should not be able to claim racism
simply based on the
colour of skin. The application of the “Bester”
test would show that the Applicant’s comment amounted to
racism.
The Applicant then went as far as to insult Mr Singh again in
his supplementary affidavit by calling him an “
internet
troll”
, which he did not provide a definition for.
10.28.3The transcripts
were accepted by this Court in the judgment of Moshoana J on 12
September 2023. It was however added that
the Applicant had in
certain sections of the transcripts incorrectly identified speakers,
and omitted sections of speech by him,
which cast him in a negative
light and altered verbal submissions per the recordings. For purposes
of remaining concise and relevant,
the Third Respondent opted to not
burden the record with a complete list of these.
10.29
The Applicant’s claim was vexations at best, had absolutely no
merits and was a blatant abuse of this honourable Court and
its
processes. Given the nature of the Applicant’s conduct in
bringing these proceedings, but also his conduct towards Mr
Singh as
well as the Third Respondent, it would be fitting to submit that a
punitive costs order on an attorney and own-client
scale be made.
[11]
Mr Londt in his argument summarised the facts that led to the
suspension and dismissal of the Applicant, aspects that I intend
to
deal with later on in this judgment.
[12]
He reiterated that the Third Respondent did not share the view of the
Applicant on any of the grounds raised by the Applicant.
Evaluation
[13]
The review
test by now is trite
[7]
.
The question to be asked by the review Court is whether the decision
reached by an arbitrator is one that no other reasonable decision
maker may reach. Differently put, the decision falls outside the
bands of reasonableness. It is not about the correctness of the
decision.
[14]
The Applicant, during his address on his Heads of Argument again
commenced his address based on the events that took place during
the
disciplinary hearing. He was guided back to the matter at hand on
numerous occasions, and at a stage, I even removed the arbitration
award from the file, showed it to him and guided him to concentrate
his rhetoric on addressing me on that which was recorded in
the
award. It was a near-futile exercise. Not even paging through his
Heads of Argument and directing him to start at his heading
on page
12 “CCMA Arbitration Hearing” helped. He bemoaned the
fact that he needed to go back to the disciplinary hearing
and that
he was being restrained.
[15]
The Applicant remained adamant, remorseless and defiant. His
unsubstantiated attacks on the reputation of the First Respondent
ran
like a golden thread throughout his lengthy and mostly
unsubstantiated belligerent comments. His lack of appreciation or
willingness
to accept accountability and responsibility for what he
had done is beyond apprehension. It should also be noted that he
downplayed
the severity and seriousness of his misconduct by being
overly critical of the process followed when, as I will deal with
underneath,
there was nothing sinister taking place in the way that
the First Respondent handled the arbitration.
[16]
It stands to be noted that the Applicant’s prayer to be
reinstated as if he had never been dismissed did not add up at all.
It would not make sense that any diligent and conscientious honest
employee who had been loyal to his employer and who wanted to
be
reinstated would want to be reinstated into an employment environment
which, according to him was prone to criminal mischief
and trampled
on rights.
[17]
Nonetheless, regardless of the above, I am obligated to consider all
the aspects raised by the Applicant in his grounds of review
and
apply the law to it.
[18]
It is further beyond belief that if the Third Respondent was such a
devious employer who would deliberately and without reason
target an
innocent dutiful and diligent employee and dismiss him on trumped-up
charges and alleged criminal behaviour would want
to be reinstated.
The Applicant himself painted a picture which vividly demonstrated
that the employment relationship had been
destroyed.
[19]
Mr Londt stands to be thanked for his immensely helpful Heads of
Argument, and, given that he eloquently summarised the gist of
the
matter and the voluminous irrelevant aspects contained in the
Applicant’s pleadings, I was able to rely heavily on his
summary of the facts, which, when compared to the award issued and
the documentary evidence presented assisted me in establishing
the
gist of the matter placed before me.
[20]
The incident that gave rise to the hearing and subsequent dismissal
of the Applicant was eventuated by the comment made by the
Applicant
on or about 21 May 2020 when the Applicant responded in a comment
thread to a post placed on the Tshwane SPCA Facebook
page. The
Applicant was not a party to the prior comments posted, but he
directed a response at Mr Singh. The response was as follows:
‘
Navesh
Singh Really, that’s an immigrant Paki like you can come up
with… oh wow so intelligent you fit right in –
Welcome
to my country but remember we do like to encourage people to bathe at
least once a month…’ (sic)
[21]
Mr Singh in his affidavit stated that he took some time to compose
himself as he was extremely overwhelmed by “…
such an
overly racist and demeaning statement, especially in a public forum
and without eliciting such response from Mr van Straaten
as he [I]
had no prior engagement with him”. (sic)
[22]
Mr Singh was not the only one who took issue with the comment posted
by the Applicant. A certain Mr Riaan Swanepoel also wagered
a comment
and posted: “
Shane van Straaten Seriously! Racism and
Xenophobia in one comment. That’s how you chose to go about it?
Pathetic really”.(sic).
[23]
Mr Singh traced the Applicant via LinkedIn to being employed by the
Third Respondent, sent an email to the SAHRC informing it of
the
incident and forwarded the same email to Mr Volmink of the Third
Respondent. He forwarded it to Mr Wayne Duvenhage the Chief
Executive
Officer of the Third Respondent.
[24]
The Applicant had, as far back as December 2017 been warned by Ms
Klazar to review all his social media postings and to remove
any
defamatory, inappropriate, or insulting comments from his personal
accounts. He was also informed that as a staff member, his
comments
represented the Third Respondent and that any comments that brought
the organization into disrepute would not be tolerated
and to refrain
from publishing such posts in future to avoid formal action. The
offending publications followed. Despite this warning,
undergoing
ethics training and his awareness of the Third Respondent’s
policies, being its Code of Conduct and Business Ethics,
and the
Media and Communications Policy, the Applicant nevertheless proceeded
to insult Mr Singh in the manner in which he did.
[25]
In the
watershed case on racism,
Rustenburg
Platinum Mine v SAEWA obo Bester and Others
[8]
,
the Court stated as follows:
‘
[43] …The
test that applies to the determination of whether the use of the word
‘swart man’ by Mr Bester was
derogatory or abusive, and
in contravention of the Rustenburg Platinum Mine’s disciplinary
code, is an objective one. The
employer, in this case, Rustenburg
Platinum Mine, bore the evidentiary burden in the arbitration
proceedings to prove that the
language used by Mr Bester was
objectively derogatory. The test is not based on how the employer
understood the words nor the subjective
feelings of the person/s to
whom the remark was made, but rather whether a reasonable, objective
and informed person would on the
correct facts
perceive it to
be so. Once that is established on the evidence, the burden of proof
shifts to the employee to prove the existence
of a ground of
justification and that the derogatory or racist remark was not made
with the intent to demean.’
[26]
The factors that one would need to consider are whether:
26.1 The
language or conduct complained of is abusive;
26.2 The
language or conduct complained of impairs the dignity of the
complainant;
26.3 The
extent and degree of abuse or impairment to a person’s dignity;
and
26.4 The
impact of the conduct.
[27]
When applying the above to the utterances made by the Applicant, his
comment fell squarely within the confines of the abovementioned
factors.
[28]
In the
matter of
Dagane
v SSSBC and Others
[9]
,
the Court held that making the following remark on Facebook:
“
F#$%
[10]
this white racist s&^%!
[11]
We must introduce Black apartheid. Whites have no ROOM in our heart
and mind. Viva MALEMA. When the Black Messiah (NM) dies, we’ll
teach whites some lesson. We’ll commit a genocide on them. I
hate whites”
constituted
racist remarks which warranted the sanction of dismissal.
[29]
When applying the above to the matter at hand, the fact that the
Applicant made the comment in his personal capacity on his personal
page did not safeguard him from facing the consequences at work.
[30]
Given the scope and role that the Third Respondent played in society,
the importance of not being associated with the kinds of
comments
made by the Applicant, the action taken against the Applicant based
on the comments made by the Applicant was not inappropriate,
a witch
hunt, nor inappropriate or done in malice towards the Applicant.
The
grounds for review
[31]
The altering and/or tampering with transcripts of the disciplinary
hearing and the averment that the fact that the First Respondent
was
not prepared to entertain this did not indicate that the First
Respondent and the Third Respondent must have been working together.
[32]
In
Hillside
Aluminium (Pty) Ltd v Mathuse and Others
[12]
,
the Court considered the status of evidence and held that:
‘
[56]
In litigation parties would prepare bundles of documents and the
documents included in the trial bundles, would be included as
documentary evidence which the parties intend to rely on in support
of their respective cases. It is a common practice for parties
to
agree on the status of the documents to be included in the trial
bundle.
[57]
In my view there are three possible scenarios.
[58]
The first scenario is where there is no agreement on the authenticity
or status of documents or where the authenticity is disputed.
In such
instances the party wishing to produce a document and wants to rely
on the document as evidence, has to prove the authenticity
of the
document by leading evidence and if the authenticity is not proved or
admitted, the document is inadmissible, may not be
used in
cross-examination and cannot be considered as evidence.
[59]
The second scenario is where parties agree that documents are what
they purport to be. This means that the party wishing to rely
on the
document, does not have to prove the authenticity of the document but
may lead evidence and rely on the document on the
basis that it is
what it purports to be. In this instance documents must be introduced
as evidence and cross-examination on such
documents is permissible.
The presiding officer can accept the document as evidence insofar as
it was properly introduced by witnesses.
Where a document is agreed
to be what it purports to be, but no evidence is adduced on the
document, the presiding officer cannot
mero motu
consider such
document as evidence merely because it is included in a trial bundle.
[60]
The third scenario is where the parties agree that the documents in
the bundle should be regarded as evidence. In this instance
the
presiding officer is entitled to accept the contents of the
documentary evidence as if it were evidence adduced before him
or her
and even if no witness testifies about it, it can be considered as
relevant and admissible evidence.
[61]
Where the document is a transcript or record of another proceeding,
the same principles apply. Where the parties agreed that the
transcript is what it purports to be and a true reflection of what
purports to be recorded, it means that the record is authentic
and
correctly reflects that the proceedings indeed took place. In this
scenario contradictions in testimony could be canvassed
during
cross-examination. The presiding officer is entitled to consider the
portions of the transcribed record that were introduced
by witnesses,
either in evidence in chief or cross-examination, as evidence. The
presiding officer cannot merely accept the entire
record as evidence,
but can accept as evidence those portions introduced by witnesses.
[62]
Where the parties agreed that the entire transcript should be
regarded as evidence before the presiding officer, the entire record
could be considered and accepted as if it was evidence that was
adduced before the tribunal where it was introduced, without the
need
for evidence to be adduced on it. In this scenario the evidence given
at the disciplinary hearing is regarded as evidence
at the
arbitration. This is an extraordinary scenario and requires an
explicit and clear agreement between the parties.’
[33]
In casu
, since the Third Respondent had not explicitly agreed
to the content of the disciplinary hearing being regarded as evidence
adduced,
the First Respondent was not wrong not to accept it as
evidence. The First Respondent was not wrong to explain that the
purpose
of introducing the transcript of testimony tendered during a
disciplinary hearing would be to establish the credibility of a
witness’s
evidence.
[34]
Further to this, the First Respondent informed the Applicant that he
would be allowed to use the disciplinary hearing records to
identify
previously inconsistent statements made by the witnesses. The
Applicant did not use this opportunity or guidance given
but opted to
bring an application to this Court for the recusal of an urgent
application, which was denied.
[35]
The fact that the First Respondent conducted the hearing
de novo
was not a gross irregularity.
[36]
In terms of
the CCMA Guidelines on Misconduct Arbitrations
[13]
,
Item 7, confirmed that the arbitrator must determine whether the
dismissal is fair in the light of the evidence admitted at the
arbitration. Therefore, when the First Respondent indicated to the
Applicant that this was not a review but a hearing
de
novo
,
the First Respondent did not commit a gross irregularity.
[37]
There was no substantiated evidence that the First Respondent failed
to determine the nature of the dispute.
[38]
The Applicant was the person who referred an unfair dismissal dispute
to the Second Respondent in terms of Section 186(1)(a) of
the LRA.
The First Respondent correctly so established jurisdiction by
enquiring whether the Applicant had been dismissed or not
and based
on the information supplied during the process of narrowing the
issues in dispute and determining the common cause facts
determined
that the matter to determine related to whether the dismissal of the
Applicant had been procedurally and substantively
fair, and if found
unfair, to determine the appropriate relief.
[39]
The First Respondent did not show bias towards the Third Respondent
by unduly assisting one or the other party and or by
interrupting/preventing
the Applicant to cross-examine the Third
Respondent’s witnesses.
[40]
The allegations proffered by the Applicant in his founding affidavit
consisted of his interpretation of technical aspects devoid
of
accuracy or the truth. The Applicant stated in paragraph 10.2.1.2 –
“…
The arbitration hearing gets off to a bad start.
Applicant is asked when he was dismissed Applicant responds I believe
on the 12
June - Commissioner interrupts and says, ‘Don’t
believe, tell me… Commissioner then asks if dismissal is in
dispute… Employer intervenes, and states termination of
employment came into effect on 12 June and Mr Van Straaten was called
to notify him…” (sic)
[41]
This was not out of the ordinary nor was the First Respondent showing
his disposition towards the Applicant.
[42]
The First Respondent did not improperly interrupt the evidence
presented by the Applicant thereby preventing the Applicant in
advancing his case or defence. The Applicant was given a fair
hearing.
[43]
The Applicant, as a layperson, was guided on what was required and
also assisted on numerous occasions to deal with the facts tendered.
This Court had the same issue with the Applicant. He is not a person
who takes kindly to guidance and assistance.
[44]
The Applicant did his level best to raise perceived technical
concerns he had with the First Respondent but downplayed his comment
posted on Facebook as “freedom of speech”.
[45]
The First Respondent did not fail to apportion weight to the evidence
presented. He did not misconstrue or ignore certain facts
and
evidence presented at the arbitration hearing.
[46]
The crisp and clear facts that the First Respondent had to consider
and rule on in terms of the Code of Good Practice: Dismissal
(Schedule 8), Item 7 was as follows:
46.1 Whether
or not the employee contravened a rule or standard regulating conduct
in, or with relevance to the workplace,
and
46.2 If a
rule or standard was contravened whether or not –
46.2.1
The rule was a valid or reasonable rule or standard;
46.2.2
The employee was aware, or could reasonably be expected to have been
aware, of the rule or standard;
46.2.3
The rule or standard had been consistently applied by the employer;
and
46.2.4
Dismissal was the appropriate sanction for the contravention of the
rule or standard.
[47]
The Applicant deemed it fit to concentrate on ancillary
misinterpreted assumptions on how he perceived the First Respondent’s
handling of the matter, instead of placing facts on record that
demonstrated that the decision made by the Third Respondent fell
short of the above-mentioned criteria did not do the Applicant any
favours.
[48]
The First Respondent applied his mind to the evidence presented by
both parties and correctly found that the dismissal of the Applicant
had been based on substantiated and credible evidence adduced.
[49]
The award is not a conclusion that another decision-maker would not
have arrived at.
[50]
This was not an automatically unfair dismissal in terms of S
187(1)(f) of the LRA.
[51]
The Applicant claimed that he was entitled to and only exercise his
freedom of speech, which, he stated, was his Constitutional
right.
Section 16 of Chapter 2 of the Bill of Rights reads as follows:
‘
(1)
Everyone has the right to freedom of expression, which includes-
a)
Freedom of the press and other media;
b)
Freedom to receive or impart information and ideas;
c)
Freedom of artistic creativity; and
d)
Academic freedom and freedom of scientific research.
2) The right in
subsection (1) does not extend to –
a)
Propaganda of war;
b)
Incitement of imminent violence;
c)
Advocacy of hatred that is based on race, ethnicity, gender, or
religion, and that constitutes incitement to cause harm.’
[52]
The
Sidumo
test was refined by the Labour Appeal Court in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine)v Commission
for Conciliation, Mediation and Arbitration and Others
[14]
where the Court formulated the following questions to determine
whether an award made by a commissioner was reviewable as follows:
In
terms of his or her duty to deal with the matter with the minimum of
legal formalities, did the process that the arbitrator employed
give
the parties a full opportunity to have their say in respect of the
dispute?
52.1
Did the arbitrator identify the dispute he was required to arbitrate
(this may only become clear after both parties have led their
evidence)?
52.2
Did the arbitrator understand the nature of the dispute he or she was
required to arbitrate?
52.3
Did he or she deal with the substantial merits of the dispute, and
52.4
Is the arbitrator’s decision one that another decision-maker
could reasonably have arrived at based on the evidence presented?
[53]
The crisp question to be determined therefore is whether the First
Respondent committed a gross irregularity when he determined
that the
dismissal of the Third Respondent was procedurally and substantively
fair.
[54]
Applying the abovementioned test to the facts at hand, I find that
the First Respondent’s award met all of the criteria required.
[55]
I am unconvinced by the submission made by the Applicant and have no
reason to interfere with the decision reached.
[56]
The award rendered by the First Respondent and the conclusions he
arrived at cannot be regarded as an award that a reasonable
commissioner would not have arrived at.
Costs
[57]
The Court may order costs against a party or its representative
according to the requirements of the law and fairness. In determining
the Court may take into account the “conduct of the parties”,
both in proceeding with or defending the matter. Put
differently,
consider the merits of their respective cases, and during the
proceedings before Court.
[58]
The principle that the costs follow the suit accordingly does not
apply to this Court, however, in terms of Section 162 of the
LRA, an
award of cost on an attorney-and-client scale when the application
was devoid of any merit or rested on a perverse view
of the law had
not been precluded.
[59]
When considering the aspects raised by the Applicant and the fact
that his application was devoid of merit and rested on the perverse
view of the law that he had the right to make racial comments because
of his right of freedom of expression (speech), seen in the
backdrop
of the decision in the
Rustenburg Platinum
case which makes
mention of the need to consider comments against the backdrop of
apartheid, I see no reasons not to award costs
against the Applicant
in this matter.
[60]
Accordingly, I make the following order:
Order
1.
The application is dismissed with costs on an attorney-client scale.
H.
Swanepoel
Acting
Judge in the Labour Court of South Africa
Appearances:
For
the Applicant:
In
person
For
the Third Respondent:
Mr
Londt
Instructed
by:
McCormick
Londt Inc.
[1]
[2018]
ZACC 13
; (2018) 39 ILJ 1503.
[2]
[2021]
ZACC 22; 2021 (6) SA 579 (CC).
[3]
2017 (2) BCLR 241 (CC); [2016] ZACC 38.
[4]
Act
66 of 1995, as amended.
[5]
[2018]
ZACC 13
; (2018) 39 ILJ 1503.
[6]
Act
4 of 2000.
[7]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007] ZACC 22
; (2007) 28 ILJ 2405 (CC) at para 110.
[8]
[2018]
ZACC 13
; (2018) 39 ILJ 1503
.
[9]
[2018] ZALCJHB 114; (2018) 39 ILJ 1592 (LC).
[10]
I omitted the actual word used intentionally.
[11]
Ibid.
[12]
[2016] ZALCD 12; (2016) 37 ILJ 2081 (LC).
[13]
GN 602 1 September 2011: Commission for Conciliation, Mediation and
Arbitration: Guidelines on misconduct arbitrations with effect
from
1 January 2012.
[14]
[2013] ZALAC 28
;
[2014] 1 BLLR 20
(LAC) at para 14.