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 91
|
|
Solidarity and Another v South Bakels (Pty) Ltd and Others (JR1587/22) [2024] ZALCJHB 91 (1 March 2024)
FLYNOTES:
LABOUR – Dismissal –
Gross
dishonesty
–
Commissioner
found dismissal substantively fair –Commissioner failed to
apply his mind rationally and justifiably to
facts and evidence –
Had not taken all evidence presented into account – Erred in
finding applicant had not followed
company practices – No
formal company policy or practice in place for allocation of
parking bays – Commissioner’s
finding is disconnected
from evidence presented and is not reasonable – Reviewed and
set aside.
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR1587/22
In
the matter between:
SOLIDARITY
First Applicant
PIETERSE,
B
Second Applicant
and
SOUTH
BAKELS (PTY)
LTD
First Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION, JOHANNESBURG
Second Respondent
KHULULEKANI
XAMESI N.O.
Third Respondent
Heard:
10 January 2024
Delivered:
1 March 2024
JUDGMENT
SCHÄFER-KING,
AJ
Introduction
[1]
The
Applicants launched an application in terms of Section 145 of the
Labour Relations Act
[1]
(LRA) to
review and set aside and/or correct the Third Respondent’s
arbitration award under case number GAJB 20683-21 dated
21 June 2022.
The application was opposed by the First Respondent.
[2]
In terms of the arbitration award, the Third
Respondent found that the Applicant’s dismissal was
substantively fair and accordingly
dismissed her case.
[3]
The Applicants seek an order that the arbitration
award be reviewed and set aside and that the award be corrected with
an award
that determines that the dismissal of the Second Applicant
was substantively unfair and to award the Second Applicant
compensation
that is just and equitable.
Background
[4]
Briefly, the facts of this matter are that the
Second Applicant was employed by the First Respondent on 1 January
2008 as a personal
assistant to the transport manager.
[5]
During July 2021, the Second Applicant was
appointed as an acting fleet manager. During August 2021, the Second
Applicant updated
the First Respondent’s parking allocation
list. It subsequently became apparent that the names of two black
female employees
namely, Kate Netshiande (Kate) and Irene Nthambeleni
(Irene) had been removed from the parking allocation list.
[6]
Kate and Irene subsequently lodged a grievance
against the Second Applicant.
[7]
Following the grievance hearing, the Second
Applicant was called to a disciplinary hearing and was initially
charged with three
charges, one of which was withdrawn. The remaining
charges were framed as follows:
‘
Charge
1:
Failing to act within the
best interests of the Company and/or disrespect in that on the 12
th
of August 2021, you removed/deleted the black senior ladies from
their parking bays which they occupied/used from 2016 and 2018
respectively and replaced them with two white ladies who are juniors
and who had recently joined the Company making the employees
feel
unfairly discriminated against.
Charge 2:
Gross
dishonesty in that in the grievance hearing held on the 25
th
and 30
th
of August 2021, you deliberately tried to
manufacture evidence by stating that you had received a hard copy
from a witness who disputed
your version. When you were requested to
tender the said parking list you were unable to provide it because it
does not exist.
You further tried to influence/induce Joseph Kgasu
who was a witness to lie and cover up for you. Over above that, you
influenced/induced
Jaco Head of Security to provide a dishonest
testimony which suited your dishonest narrative by stating that he
gave you the hard
copy of the old parking list which he claimed he
got from another Security Guard.
’
[8]
Following the disciplinary enquiry, the Second
Applicant was found guilty of both charges and was dismissed from the
employ of the
First Respondent on 23 September 2021.
[9]
The Second Applicant appealed against her
dismissal, which appeal was dismissed.
[10]
The Applicant challenged the substantive fairness
of her dismissal by referring an unfair dismissal dispute to the
Second Respondent
under case number GAJB20683-21.
[11]
The unfair dismissal dispute was arbitrated on 26
January 2022, 7 and 8 March 2022, 25 and 26 April 2022 and 8 June
2022.
[12]
The Third Respondent issued the arbitration award
on 21 June 2022, which dismissed the Second Applicant’s case
and found that
the dismissal of the Second Applicant by the First
Respondent was substantively fair.
[13]
The Second Applicant’s grounds for review
are set out in her founding affidavit, which is amplified in her
supplementary affidavit.
In summary, her grounds for review are that
the Third Respondent:
13.1 Committed
gross irregularities in the conduct of the arbitration proceedings;
13.2 Did not
properly, rationally and justifiably apply his mind to the facts or
the law;
13.3 Did not apply
the provisions of the LRA; and
13.4 Came to a
conclusion that a reasonable commissioner could not reach.
[14]
I will now deal with the submissions made on
behalf of the Applicant and the First Respondent.
The Applicants’
submissions
[15]
The Applicants’ submitted that:
15.1 Despite the
Third Respondent having correctly referred to the provisions of
Schedule 8 of the Code of Good Practice:
Guidelines in cases of
dismissal for misconduct, the Third Respondent failed to properly and
correctly apply the applicable test
set out therein. In this regard,
the Applicants contended that evidence was submitted which was
uncontested that there was no formal
policy or agreed procedure at
the First Respondent as to how parking bays were allocated and/or
amended. The First Respondent failed
to submit any evidence as to
what process was in fact in place to allocate and/or amend parking
bays, bearing in mind that the
Second Applicant had not been
appointed to the position of acting fleet manager for even one month
when the alleged incident occurred.
The Third Respondent did not
consider that the Second Applicant was still learning as to what her
position entailed and how things
were to be done in her department.
The Third Respondent failed to understand and/or take into account
that no policy and/or agreed
process existed as to how parking bays
were allocated and/or amended.
15.3 The Third
Respondent committed a gross latent irregularity by misconceiving the
nature of the enquiry before him and
his duties in connection
therewith;
15.4 The Third
Respondent failed to apply his mind to the evidence, both verbal and
documentary submitted by the Applicants
and throughout his award only
accepted the version of the First Respondent without any proper
analysis, evaluation or consideration
of the probabilities relating
thereto.
15.5 The Third
Respondent contradicted himself in paragraphs 67, 68 and 72 of his
award in that he firstly accepted that
the Second Applicant made a
mistake. Then he determined that she is inexperienced and therefore
at the most her conduct amounted
to neglect of duties and he finally
found that she was dishonest;
15.6 The Second
Applicant testified that she had made a mistake, and her mistake was
immediately rectified. Throughout the
disciplinary process, the
Second Applicant showed remorse, a fact that should be considered in
misconduct cases, which the Third
Respondent failed to do;
15.7 The incident
happened on 12 August 2021 and she rectified her mistake on 13 August
2021;
15.8 The Third
Respondent ignored the evidence submitted by the Second Applicant and
Mr Jaco Reed (Reed). The uncontested
evidence of Reed was that Joseph
Kgasu (Kgasu) and Reed brought the Second Applicant a parking list,
however, the Third Respondent
in paragraph 69 finds that Kgasu’s
uncontested evidence was that he did not provide a copy of the
parking list to the Second
Applicant. Reed’s evidence was
further confirmed by means of an affidavit;
15.9 The Third
Respondent contradicted himself in paragraphs 70 and 71 of the
arbitration award in that firstly he found
that there was no dispute
about whether the names of Kate and Irene were on the list but in
paragraph 71 found that there was a
dispute about the names being on
the list.
15.10 The Third
Respondent failed to take into account that there was no policy
and/or agreed process by the First Respondent
but still found that
the Applicant failed to follow company practices and did not consult
the affected employees. Kgasu confirmed
that the late Mr Jan van
Niekerk never consulted the employees;
15.11 The Third
Respondent found in paragraph 73 that the trust relationship was
broken down. The Third Respondent failed
to take into account the
evidence of the Human Resource Manager namely Ilze Le Roux (Le Roux)
where she indicated to the Second
Applicant that she was proud of
her.
[16]
The Applicants’ submitted that had the Third
Respondent applied the correct test and considered all the relevant
material
facts and evidence related to misconduct, he would have come
to another finding. Further, had the Third Respondent applied his
mind correctly he would have considered that a first instance of this
mistake and/or alleged transgression by the Second Applicant
is not
misconduct and is not a dismissible offence.
[17]
The Third Respondent further made unreasonable
findings by failing to consider documents that had a material bearing
on the veracity
of the version of the Applicant’s testimony.
Had the Third Respondent considered all the material documents and
evidence
and applied the test for misconduct correctly, he would have
reached a different outcome.
[18]
In the Second Applicant’s supplementary
affidavit, it was submitted that the nub of the issue is whether the
Third Respondent
took all evidence into account regarding the charges
against the Applicant. In terms of charge 1, the crisp issue was
whether the
Second Applicant replaced Kate and Irene’s parking
with those of two white ladies and unfairly discriminated against
Kate
and Irene. Charge 2, the crisp issue was whether the Second
Applicant manufactured a parking list and induced and/or influenced
Kgasu and Reed to lie for her.
[19]
It was contended that in the event that the
evidence submitted does not support the charges with which the Second
Applicant was
charged, the Third Respondent cannot make a finding of
dishonesty or fair dismissal.
[20]
It was uncontested that there were no grounds for
discrimination and the evidence was clear that Kate and Irene were
not replaced
by two white ladies, in fact, it was found that Kate and
Irene were replaced with an African female and a white male.
[21]
It was submitted that the First Respondent failed
to prove charge 2 and that the Third Respondent failed to consider
the evidence
before him.
[22]
Kgasu testified that the Second Applicant had
asked him to tell the truth. Reed confirmed in his evidence that the
Second Applicant
had not asked him to lie on her behalf. As such it
was submitted that the First Respondent had failed to prove that the
Second
Applicant had induced and/or influenced Kgasu and Reed.
[23]
The Third Respondent failed to have regard to the
fact that the evidence presented by the First Respondent did not
substantiate
the fact that the Second Applicant had manufactured
evidence.
[24]
The witnesses for the First Respondent had
contradictory evidence and the Third Respondent failed to appreciate
these contradictions.
Kgasu confirmed that there is a parking list
with security whilst Carl Mbombi, the security denied that there is a
parking list
in the security office. Reed also confirmed there is a
parking list in the security office.
[25]
Irene and Kate were not in the late Jan van
Niekerk’s email distribution list when the parking allocation
was emailed on 25
September 2019. Ilze le Roux confirmed that only
the relevant people, the people that had parking bays were on the
email distribution
list.
[26]
Kgasu confirmed that the late Mr Jan van Niekerk
never consulted any employees on the changes on the parking list
which is contradictory
to the evidence of Irene when she testified
that the late Mr Jan van Niekerk always consulted her.
[27]
The Third Respondent contradicted himself in that
he accepted and found that the Second Applicant made a mistake, which
she rectified
a day later but later found that she was dishonest. The
Third Respondent ignored the Second Applicant’s evidence where
she
disputed Kgasu’s evidence that he did not give her a copy
of the parking list. Reed also confirmed that Kgasu gave the Second
Applicant the parking list.
The First Respondent’s
submissions
[28]
The First Respondent contended that the award was
reasonable and that the Third Respondent’s conclusions on the
evidence could
have been reached by any other decision-maker.
[29]
The Third Respondent accepted in the award that
the Second Applicant made a mistake when she removed the names of the
two individuals.
The First Respondent submitted that this
transgression of the processes involved in the allocation of parking
bays was not the
key question in the mind of the Third Respondent
when he determined that the dismissal was fair.
[30]
It was submitted that the Third Respondent:
30.1 Found that
the Second Applicant was dishonest in her dealings with the First
Respondent when confronted about the contents
of the parking bay
list;
30.2 Accepted that
the trust relationship between the parties had broken down; and
30.3 Was therefore
alive to the dispute he was required to determine.
[31]
Kgasu’s evidence that the list included the
names of the two ladies and that the Second Applicant asked him to
remove the
names, was not disputed.
[32]
The evidence before the Third Respondent was that
the list of names was on the laptop of the late Mr van Niekerk and he
accepted
that that is where the Second Applicant found it. It was
submitted that the topic is in any event irrelevant to the bigger
picture
of what led to the Second Applicant’s dismissal.
[33]
The Second Applicant stated that the names of the
two ladies were not on any list, and when Kgasu’s evidence was
undisputed
she instructed him to remove them from the list.
[34]
The Third Respondent accepted that the Second
Applicant made a mistake in the removal of the names. It was
reiterated by the First
Respondent that the misconduct that led to
her dismissal was her dishonesty after the fact.
[35]
The First Respondent submitted that:
35.1 The Third
Respondent’s award is entirely reasonable and the conclusion
therein could have been reached by any
other reasonable
decision-maker;
35.2 The Third
Respondent did not commit any irregularities to the extent that
vitiates the entire award;
35.3 The award
should not be interfered with; and
35.4 The crisp
issue is encapsulated in paragraph 72 of the award where the Third
Respondent finds that “
the Applicant acted dishonesty when
she alleged to have received a parking list hard copy from Kgasu and
further lied when she alleged
that Irene and Kate’s names were
not on the parking list. This was a clear attempt to shift blame and
to conceal her error
of removing Irene and Kate…
”.
It was submitted that the finding of the Third Respondent is
unassailable and entirely reasonable and is not susceptible
to review
and interference by this Honourable Court.
Analysis
[36]
I do
not deem it necessary to extensively address the relevant tests to be
applied in the proceedings such as this. The test laid
down in the
Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
is
namely as follows:
‘
[110]
… Is the decision reached by the commissioner one that a
reasonable decision-maker could not reach.’
[37]
The
LAC confirmed in
Fidelity
Cash Management Services v Commission for Conciliation, Mediation and
Arbitration and Others
[3]
that
there can be no doubt under
Sidumo
that:
‘
[102]
… the reasonableness or otherwise of a commissioner’s
decision does not depend – at least not solely
– upon the
reasons that the commissioner gives for the decision. In many cases
the reasons which the commissioner gives for
his decision, finding or
award will play a role in the subsequent assessment of whether or not
such decision or finding is one
that a reasonable decision-maker
could or could not reach. However, other reasons upon which the
commissioner did not rely to support
his or her decision or finding
but which can render the decision reasonable or unreasonable can be
taken into account. This would
clearly be the case where the
commissioner gives reasons A, B and C in his or her award but, when
one looks at the evidence and
other material that was legitimately
before him or her, one finds that there were reasons D, E and F upon
which he did not rely
but could have relied which are enough to
sustain the decision.’
[38]
The
LAC in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration
[4]
,
stated the applicable test as follows:
‘
In
short: A review court must ascertain whether the arbitrator
considered the principal issue before him/he; evaluated the facts
presented at the hearing and came to a conclusion which was
reasonable to justify the decisions he or she arrived at.’
[39]
In
Herholdt
v Nedbank
Ltd
(Congress of South African Trade Unions as amicus curiae)
[5]
,
it
was held that in as much as it was necessary to scrutinize the
evidence presented before the commissioner for the purposes of
determining whether the outcome was reasonable, courts should
nevertheless guard against the setting aside of awards which do not
coincide with their own opinion on the matter and that an award shall
only be susceptible to be set aside in circumstances where
the
outcome is entirely disconnected with the evidence, or where it is
not supported by any evidence, and/or involves speculation
on the
part of the arbitrator.
[40]
In
Nyathikazi
v Public Health and Social Development Sectorial Bargaining Council
and others
[6]
,
in
assessing whether the arbitrator committed errors of fact or failed
to attach weight or relevance to any particular facts, it
was
reiterated that:
‘
[21]
After the decision in
Sidumo
and another v Rustenburg Platinum Mines Ltd and another
[7]
and the further the explication in
Herholdt
v Nedbank Limited
[8]
,
it is clear that our law dictates that an award delivered by an
arbitrator will only be considered to be unreasonable if it is
one
that a reasonable arbitrator could not reach on all the material that
was before him or her. A material error of fact and the
particular
weight to be attached to a particular fact may in and of itself not
be sufficient to set aside the award but will only
be done if the
consequence thereof is to render the ultimate outcome unreasonable.’
[41]
Ultimately, whether or not an arbitration award,
decision or finding of a commissioner is reasonable must be
determined objectively
with due regard to all the evidence that was
before the commissioner and what the issues before him or her were.
[42]
Applying the above principles an examination of
the evidence presented at the arbitration proceedings clearly points
to the fact
that the Third Respondent has not properly rationally and
justifiably applied his mind to the facts and evidence presented
before
him and has not taken all the evidence presented before him
into account.
[43]
The material charge which led to the dismissal of
the Second Applicant was gross dishonesty. It would appear from
paragraph 72 of
the arbitration award that the Third Respondent found
that the Applicant had acted dishonestly when she claimed to have
received
a parking list hard copy from Kgasu and further lied when
she alleged that Irene and Kate’s names were not on the parking
list which she received from Kgasu. On reading this finding, the
Third Respondent accepted Kgasu’s evidence but failed to
take
into account the evidence of Reed and the Second Applicant.
[44]
In this regard, the Second Applicant testified
that on 4 August 2021, Kgasu and Reed attended at her office at the
same time, and
each furnished her with parking lists. Her version of
events was corroborated by Reed. Reed testified that he had taken a
parking
allocation list from the window in the security room and he
took the list to the Second Applicant’s office where he found
Kgasu standing with another list which was handed to the Second
Applicant.
[45]
It was further the evidence of Reed that the
Second Applicant had not asked him to lie. She had told him to tell
the truth.
[46]
The Third Respondent also erred in finding that
the Applicant had not followed company practices and had not
consulted the affected
parties when the evidence was clear there was
no formal company policy or practice in place for the allocation of
parking bays.
[47]
The crux of the matter as contended by the First
Respondent is charge 2: gross dishonesty.
[48]
In the
case of
DRS
Dietrich, Voigt & MIA v Bennet CM N.O and Others
[9]
,
the LAC distinguished between conduct resulting from an error or
negligence and conduct which is intentional. Intentional conduct
would amount to dishonesty.
[49]
In my view, there is no evidence that the conduct
of the Second Applicant was intentional and she cannot be said to
have been dishonest.
Further, she showed remorse. I am of the view
that the Third Respondent failed to assess and consider all of the
evidence presented
to him. A reasonable commissioner could not have
found the Second Applicant guilty of dishonesty as charged.
[50]
In
Nedcor
Bank Ltd v Frank and Others
[10]
,
the LAC held that dishonesty entails “
a
lack of integrity or straightforwardness and, in particular, a
willingness to steal, cheat, lie or act fraudulently
”
.
The court also held that the term implies intention on the part of
the employee; just as one cannot steal negligently, negligence,
however gross, cannot give rise to a charge of dishonesty.
[51]
Glaringly absent from the arbitration award is an
assessment of the versions of the credibility of the witnesses and
the inherent
probabilities of the versions presented.
[52]
The Third Respondent failed to take cognisance of
the material evidence placed before him and failed to assess the
totality of the
evidence presented. It was incumbent upon him to make
credibility findings and to state why he accepted one version and
rejected
another, which he failed to do. Had he done so, he would not
have accepted the evidence of Kgasu and would have accepted the
evidence
of the Second Applicant and Reed.
[53]
The arbitrator was required to make a factual
adjudication on the issue of misconduct and he had to do that by
considering and assessing
all the facts placed before him. He failed
to do that. The evidence of both Kgasu and Reed was that the
Applicant had asked them
to tell the truth, accordingly the First
Respondent had not discharged the onus of proving that the Second
Applicant was grossly
dishonest. Given the evidence presented, I am
also not convinced that the trust relationship had broken down
irretrievably.
Conclusion
[54]
I am of the view that the Third Respondent did not
properly, rationally and justifiably apply his mind to the facts
before him and
did not come to a conclusion that a reasonable
commissioner could reach.
[55]
I have considered the grounds for review. The
ultimate question is whether viewed holistically, the decision taken
by the Third
Respondent was reasonable based on the evidence placed
before him.
[56]
After perusal and consideration of the arbitration
award, the record of the arbitration proceedings (which includes a
transcript
of the proceedings and all documents relied upon at the
arbitration proceedings) and the grounds for review, the Third
Respondent’s
finding that the dismissal of the Second Applicant
by the First Respondent was substantively fair, is disconnected from
the evidence
presented and is not reasonable.
[57]
The Third Respondent failed to consider the
central dispute, ignored relevant evidence and failed to take into
account all of the
evidence. He rejected the Second Applicant and
Reed’s evidence without a proper analysis and evaluation
thereof.
[58]
Whether the award stands to be set aside now has
to be determined by the reasonableness of the outcome. This court can
only intervene
if the award represents a decision that no reasonable
decision-maker could come to on the available evidence. It must be
determined
whether the award can nevertheless be sustained.
[59]
I am not persuaded that the outcome of the award
can be sustained. It is unreasonable and not a decision that a
reasonable decision-maker
could have reached.
[60]
The Applicant seeks an order that the arbitration
award be reviewed, set aside and corrected with an award that
determines that
the dismissal of the Second Applicant was
substantively unfair and to award the Second Applicant just and
equitable compensation.
[61]
In my view, the most appropriate remedy would be
to substitute the arbitration award with an award that the dismissal
of the Second
Applicant by the First Respondent was substantively
unfair and to order the First Respondent to pay the Applicant an
amount equal
to 6 (six) months compensation.
Costs
[62]
The arbitrator got the award wrong. The First
Respondent was entitled to defend an award in its favour and should
not be punished.
Therefore I make no order as to costs.
[63]
In the premises, I make the following order:
Order
1.
The arbitration award under case number GAJB
20683-21 dated 21 June 2022 is reviewed and set aside.
2.
The arbitration award is substituted with the
following:
‘
The
dismissal of the Second Applicant by the First Respondent is
substantively unfair and the First Respondent is ordered to pay
the
Second Applicant an amount equal to 6 (six) months compensation (6x
R24,763.00).’
3.
There is no order as to costs.
L Schäfer-King
Acting Judge of the
Labour Court of South Africa
Appearances
:
For the Applicant:
N. Ras
Instructed
by:
Solidarity
For the First
Respondent: A.J. Posthuma
Instructed
by:
Snyman Attorneys
[1]
Act
66
of 1995, as amended.
[2]
[2007]
ZACC 22
;
2008
(2) BCLR 158
(CC) at para 110.
[3]
[2007]
ZALAC 12
;
[2008]
29 ILJ 964 (LAC) at para 102.
[4]
[2013]
ZALAC 28
;
[2014]
1 BLLR 20
(LAC) at para 16.
[5]
[2013]
11 BLLR 1074
(SCA);
(2013)
34 ILJ 2795 (SCA) at para 13.
[6]
[2021] 8 BLLR 778
(LAC);
[2012] ZALAC 11
at para 21.
[7]
2008 (2) SA 24
CC.
[8]
2013
(6) SA 224 (SCA).
[9]
[2019] ZALAC 2
; (2019)
40 ILJ 1506 (LAC).
[10]
[2002]
ZALAC 11
;
(2002)
23 ILJ 1243 (LAC) at para 15.