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[2024] ZALCJHB 160
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South African Express Airways Soc Ltd v Mafujane and Others (JR1824/19) [2024] ZALCJHB 160 (3 April 2024)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR1824/19
In
the matter between:
SOUTH
AFRICAN EXPRESS AIRWAYS SOC LTD
(IN
LIQUIDATION)
Applicant
and
TEBOGO
MAFUJANE
N.O.
First
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION Second
Respondent
JOSE
ARAUJO
Third Respondent
Heard:
20 March 2024
Delivered:
3 April 2024
This
judgment was handed down electronically by circulation to the parties
and/or legal representatives by email. The date for hand-down
is
deemed to be 3 April 2024.
JUDGMENT
MAKHURA,
J
Introduction
[1]
On
or about 9 October 2017, the third respondent (employee) submitted a
general declaration of interest form to the applicant (company).
The
declaration form required employees to respond to various questions
by ticking or crossing “yes” or “no”
next to
the question. Where he or she answered “yes”, the
employee would be required to provide additional information.
[2]
The
question asked under section 6 of the declaration form was whether
the employee had any “remunerative commitment”
outside
the company. Instead of responding by ticking or crossing “yes”
or “no”, the employee left this
question unanswered. It
was common cause that the employee was a simulator instructor for
Simaero South Africa (Simaero) since
June 2014. The consequence of
his failure to respond to the question was a death penalty –
dismissal.
The
charges and dismissal
[3]
The
charges which formed the reason for the employee’s dismissal
were formulated as follows:
‘
1.
Contravention
of Flight Operations Manual (FOM) Part one section 8 paragraph 8.22.1
and paragraph 8.22.2 and All Crew Notice 01
2018.
2.
Dishonesty
in that you failed to declare that you have alternative employment as
per the Declaration of Interest form.’
[4]
Paragraphs
8.22.1 and 8.22.2 of the FOM provide as follows:
‘
8.22.1
All
flight crew members who wish to conduct flying activities outside SA
Express must obtain prior written permission from the Chief
Pilot.
Any alternative employment must be declared as required by HC policy.
8.22.2
A
crew member who accumulates flight time outside of their employment
shall maintain an accurate record of flight time and duty
periods and
shall provide copies thereof to all operators for whom such crew
member conducts flights. Quarterly summaries must
be provided to the
Divisional Manager: Line Operations / Chief Pilot.’
[5]
The
All Crew Notice 01/2018 (ACN) is a reminder to all crew to ensure
that their annual general declaration of interest forms are
completed
correctly and in full. The ACN reiterates the content of paragraphs
8.22.1 and 8.22.2 of the FOM. It provides that any
flight data centre
(FDC) member who wishes to conduct flying outside of the company must
obtain prior written permission, that
this permission may not be
withheld “unnecessarily” and that it is to ensure that
such alternative employment does
not transgress labour laws, benefit
competitor airlines or affect FDP periods. The ACN further expands on
paragraph 8.22.2 of the
FOM that the quarterly summary of flights
conducted outside of the company must be submitted to the Chief Pilot
at the end of March,
June, September and December. The summary
includes “
any private
(non-commercial) hours, DFE testing hours, simulator instruction
hours etc – essentially any hours logged in a
pilot logbook
”.
[6]
The
company’s code of ethics also prohibits employees from
performing outside work or what it calls “a second job”
without the company’s express written permission. Consistent
with the declaration of interest form, the code of ethics requires
employees to declare their interest fully and in writing to
management.
[7]
The
employee was found guilty of the allegations and dismissed. The
chairperson cites grounding by the South African Civil Aviation
Authority (CAA) due to non-compliance as a contributing or
aggravating factor for imposing the sanction of dismissal. The
chairperson
continued:
‘
You
failed to declare your afterhours flight activities as required and
stipulated in the FOM. You failed to follow the rules of
reporting as
per the process. What makes it worse is that the company doesn’t
have a problem with afterhour’s flight
activities as long as
there is no conflict of interest. That also the reason for the
completion of the Declaration of Interest
form that you also did not
complete in full (sic). If the company knew you were training Cem Air
staff, the company would have
put a stop to it immediately.’
[8]
The
chairperson proceeded to deal with the issue of trust. He found that
the employee did not trust Human Capital and the management
team. The
chairperson concluded that the trust relationship had broken down,
that the employee “advantaged the opposition”,
put
himself in a conflict of interest and failed to declare his flight
activities in the declaration of interest form.
The
CCMA proceedings and award
[9]
Much
of the evidence during the arbitration proceedings was on whether the
provision of simulator training constituted flying. The
commissioner
dealt first with what constitutes flying activities. He concluded
that simulator training did not constitute flying,
that the employee
did not conduct any external flight and consequently that he did not
accumulate flight time. Based on the above,
the commissioner found
the employee not guilty of charge 1.
[10]
The
commissioner dealt with charge 2 as follows:
‘
It
is alleged that the applicant was dishonest. He failed to declare
that he has alternative employment. Allan testified that the
applicant deliberately failed to fill in section 6 of the general
declaration of interest. Dishonesty as defined by The
Merriam-Webster’s
Collegiate Dictionary 3
rd
Kindle
version is
lack of honesty, a disposition to defraud or deceive
.
In his testimony the applicant testified that he was not sure as to
how to fill in section 6. The onus was on the respondent to
prove on
a balance of probability that the applicant was dishonest. None of
the factors mentioned in the definition were traversed
or explored by
the respondent in pursuance of proving that the applicant was
dishonest in not filling section 6 of the general
declaration of
interest. The charge does not stick.’
[11]
Having
found the employee not guilty on both charges, the commissioner
proceeded to consider evidence relating to the alleged breakdown
of
the trust relationship and the appropriate relief. He found that
reinstatement with retrospective backpay was appropriate.
[12]
Aggrieved
by the commissioner’s decision, the company launched these
proceedings in terms of section 145 of the Labour Relations
Act
[1]
(LRA) to review and set aside the award.
The
review test
[13]
The
test to review an arbitration award is as set out in
Sidumo
and another v Rustenburg Platinum Mines Ltd and others
,
[2]
and has been expanded upon extensively in subsequent judgments
[3]
.
It is well established that in determining whether an award is liable
to be reviewed and set aside, this Court is required to
determine
whether the decision reached by the commissioner is one that a
reasonable decision-maker could not reach. This is a stringent
test
that ensures that awards are not lightly interfered with.
[4]
[14]
In
Duncanmec
(Pty) Ltd v Gaylard NO and others
[5]
,
the Constitutional Court clarified that:
‘
[42]
This
test means that the reviewing court should not evaluate the reasons
provided by the arbitrator with a view to determine whether
it agrees
with them. That is not the role played by a court in review
proceedings. Whether the court disagrees with the reasons
is not
material.
[43]
The
correct test is whether the award itself meets the requirement of
reasonableness. An award would meet this requirement if there
are
reasons supporting it. The reasonableness requirement protects
parties from arbitrary decisions which are not justified by
rational
reasons.’
[15]
In
Makuleni
v Standard Bank of SA (Pty) Ltd and others
,
[6]
the Labour Appeal Court held that the award may be reviewed and set
aside only if the conclusions are untenable.
Evaluation
[16]
The
company contends that the commissioner failed to properly apply his
mind to the evidence and misconceived the nature of the
enquiry, that
his finding that the employee was not guilty of dishonesty is
unreasonable, that he did not bring an independent
mind to bear on
the matter and that an award of reinstatement and back pay is
unreasonable.
[17]
It
is not in dispute that the Chief Pilot, Allen MacCaulay (MacCaulay),
was aware that the employee was conducting simulator training
for
Simaero. The time the employee spent training these pilots was
accounted for and recorded in his personal flight logbook, which
was
submitted to MacCaulay and the company. The evidence of MacCaulay was
as follows:
‘
But
then additionally, we’ve got a mechanism where pilots are
supposed to, particularly if they’re doing external work,
they’re supposed to submit a quarterly summary to the chief
pilot so that the chief pilot has an overview of their internal
flying as well as their external flying in order to ensure the
legalities of the flying.’
[18]
It
is not in dispute that the employee submitted his logbooks as
required by the company recording his commitment to Simaero as
a
simulator instructor. MacCaulay continued that:
‘
And
also in certain instances, as in the case of Joe Araujo, he has
training qualifications and does do training activities outside
of
the company which, by and large, unless it’s a conflict of
interests, the company has no issue with. But we do need to
have a
view of it, so that we can prove to IATA when they come and audit us,
as well as the Civil Aviation Authority, that in fact
we’ve got
an oversight of what our crew members are doing and the fact that
they are then legal.’
[19]
The
employee contended that the company could have asked him to complete
the form fully and that it was the responsibility of human
resources
to ensure that the form was completed fully. Refilwe Campbell, the
company’s Human Capital Business Partner, agreed
that this
could have been done. The employee also contended that he accepted
his responsibility for failing to complete the form
fully and
testified that he had no intention to deceive the company about his
activities as a simulator instructor for Simaero.
[20]
The
employee contended further that his conduct must be viewed in light
of the fact that since 2014, he has been submitting his
logbooks to
the Chief Pilot. As a result, so he submitted, the company was always
aware that he was a simulator instructor at Simaero.
[21]
The
first and second grounds for review relate to the merit of the
charges. The critical issue, as Mr Cassim submitted, is the failure
to obtain prior written permission from the Chief Pilot before
“flying” and the failure to declare his remunerated
commitment outside the company. This, so the company contends, shows
that the employee is untrustworthy and dishonest and he should
not be
rewarded for this conduct.
[22]
The
code of ethics provides that employees may not perform outside work
without the company’s express written permission.
The company
then submitted that the employee was moonlighting and referred this
court to two judgments –
Bakenrug
Meat (Pty) Ltd t/a Joostenberg Meat v Commission for Conciliation,
Mediation and Arbitration and others
[7]
(
Bakenrug
Meat
)
and
Vilakazi
v Commission for Conciliation, Mediation and Arbitration and
Others
[8]
(
Vilakazi
).
[23]
The
employee did not have prior and express written consent before being
engaged to provide simulator training outside the company,
as set out
in the code of ethics. However, the company was at all material times
aware that the employee was engaged by Simaero
as a simulator
instructor. The logbooks submitted by the employee disclosed this
critical information. The employee’s curriculum
vitae in
possession of the company also disclosed that he is a simulator
instructor for Simaero. Accordingly, his external work
was no secret.
The alleged dishonesty in this case is the failure to declare or
answer “yes” or “no” under
section 6 of the
declaration of interest form. The two judgments referred by the
company –
Bakenrug Meat
and
Vilakazi
,
are distinguishable on the facts. In those cases, the employers did
not know of the employee’s external activities, which
were also
found to be in conflict of interest. In
casu
,
the information relating to the employee’s external work had
been within the company’s knowledge and record since
2014. It
was brought to the company’s attention by the employee through
his completion of the logbooks. The submission that
the employee was
moonlighting has no merit and falls to be rejected.
[24]
The
employee testified that he had no intention to deceive. The onus was
on the company to show that the employee’s failure
to declare
under section 6 was intended to withhold information about his
external work. This, the company could not possibly have
proved
because it has been aware of the employee’s external work. The
commissioner considered the definition of dishonesty
and understood
that the company bore the onus of proving the charge. He found that
the company failed to prove the charge. This
decision is reasonable
and there is no basis to interfere with it.
[25]
The
company raised a misconduct review ground that the commissioner was
not impartial, that he did not conduct the proceedings fairly
and
that his conduct gave rise to a perception of bias. The company
purports to list various instances in the transcript in which
the
commissioner misconducted himself. In one primary instance, the
employee refused to answer a question because he said that
he already
answered it. The commissioner expressed the same sentiments that the
question was asked and answered. The company then
complained that the
commissioner was defending the employee from answering the question.
The commissioner was of the view that
the company’s
representative was levelling accusations against him that he was
defending the employee. It is clear from the
discussions between the
commissioner and the company representative that the commissioner was
simply indicating that the question
was answered and that the issue
should be addressed in closing arguments, rather than repeating the
same question. This ground
has no merit.
[26]
The
test for a reasonable apprehension of bias is high, as confirmed by
the Constitutional Court in
South
African Commercial Catering and Allied Workers Union and Others v
Irvin and Johnson Limited Seafoods Division Fish Processing
,
that:
[9]
‘…
the
Court as a starting point presumes that judicial officers are
impartial in adjudicating disputes … it is the applicant
for
recusal who bears the onus of rebutting the presumption of judicial
impartiality. On the other hand, the presumption is not
easily
dislodged. It requires a “cogent” or “convincing”
evidence to be rebutted.’
[27]
In
the present case, the company did not raise any complaint against the
commissioner’s conduct during the proceedings. The
commissioner, though not a judicial officer, is presumed to be
impartial and the company must adduce cogent and convincing evidence
to dislodge the presumption. It has failed to do so. The instances
complained of are far from raising any apprehension of bias.
The
commissioner’s robust approach did not exceed or overstep the
bounds of a fair procedure in his conduct of the proceedings.
This
ground is dismissed.
[28]
The
fourth ground is an attack on the award of reinstatement and back
pay. Although the company refers to an extract in the transcript
where MacCaulay testified that the trust relationship has broken
down, the company only limited its challenge to the amount of
back
pay awarded due to the delayed start of the proceedings and extended
breaks during the proceedings. The company then concluded
by
submitting that “
the extent of
the backpay and reinstatement, given the fact that the relationship
of trust has irretrievably severed are grossly
unreasonable in the
circumstances
”. The basis of
the alleged breakdown of trust is not pleaded. The challenge on the
order of reinstatement, if any, is very
weak.
[29]
In
arriving at a decision to dismiss the employee, the chairperson of
the disciplinary hearing relied on factors such as conflict
of
interest, working for a competitor and grounding due to
non-compliance. There was no conflict of interest as Simaero was not
an airline and therefore not the company’s competitor. The
company was not grounded because of the employee’s engagement
with Simaero and therefore this reason was irrelevant.
[30]
Regardless,
the commissioner considered and dealt with the evidence led by the
company and MacCaulay on the trust relationship and
remedy and the
legal principles on the issue. He found that the evidence led by the
company failed to establish that the employee
was guilty of the
charges. Therefore, any evidence of an alleged breakdown of trust
based on the allegations the employee was found
not guilty of is, in
my view, irrelevant and of no consequence to the enquiry on the
appropriate remedy.
[31]
In
South
African Commercial, Catering and Allied Workers Union and Others v
Woolworths (Pty) Limited
[10]
,
the Constitutional Court reaffirmed the principle that reinstatement
is the primary remedy that follows a finding of substantively
unfair
dismissal.
[11]
[32]
The
employer bears the burden to demonstrate that the primary remedy of
retrospective reinstatement should not apply, or should
be
limited.
[12]
The company
failed to plead with sufficient particularity why the award of full
back pay is unreasonable. An allegation that the
employee delayed the
start of the proceedings and took longer breaks without more, is not
sufficient for this court to interfere
with the award of
retrospective reinstatement. Accordingly, the commissioner’s
decision to reinstate the employee with full
back pay is not
unreasonable.
[33]
There
is no basis to interfere with the award. The conclusions reached by
the commissioner have been substantiated with reasons,
which
demonstrates that he applied his mind to and properly conceived the
issues and evidence. This application therefore falls
to be
dismissed.
[34]
In
the premises, the following order is made:
Order
1.
The
application is dismissed.
2.
There
is no order as to costs.
M.
Makhura
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant
:
Adv. N.A. Cassim SC with
Adv. K Naidoo
Instructed
by
: Cox Yeats Attorneys
For
the Third Respondent :
Adv. A.N. Snider SC
Instructed
by
: Nowitz Attorneys
[1]
Act
66 of 1995, as amended.
[2]
(2007) 28 ILJ 2405 (CC); [2007] 12 BLLR 1097 (CC).
[3]
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
(2013)
34 ILJ 2795 (SCA);
[2013] 11 BLLR 1074
(SCA) at para 25;
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation and Arbitration and others
(2014) 35 ILJ 943 (LAC)
[2007] ZALC 66
; ;
[2014] 1 BLLR 20
(LAC) at paras 16 –
20;
Head
of Department of Education v Mofokeng and Others
(2015) 36 ILJ 2802 (LAC);
[2015] 1 BLLR 50
(LAC) at paras 31 –
33;
Makuleni
v Standard Bank of SA (Pty) Ltd and others
(2023) 44 ILJ 1005 (LAC);
[2023] 4 BLLR 283
(LAC) at paras 3 –
4.
[4]
Fidelity
Cash Management Services v Commission for Conciliation, Mediation
and Arbitration and Others
[2007]
ZALAC 12
; (2008) 29 ILJ 964 (LAC) at para 100.
[5]
(2018) 39 ILJ 2633 (CC);
[2018] 12 BLLR 1137
(CC) at paras 42 - 43.
[6]
(2023) 44 ILJ 1005 (LAC);
[2023] 4 BLLR 283
(LAC) .
[7]
(2022)
43 ILJ 1272 (LAC); [2022] 4 BLLR 319 (LAC).
[8]
[2023] ZALCJHB 319;
(2024)
45 ILJ 369 (LC).
[9]
[2000] ZACC 10
;
2000 (3) SA 705
(CC).
[10]
[2018] ZACC 44
;
(2019)
40 ILJ 87 (CC).
[11]
Ibid
at para 46; see also:
Booi
v Amathole District Municipality and Others
[2021]
ZACC 36
; (2022) 43 ILJ 91 (CC).
[12]
See:
Billiton
Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and others
(2010) 31 ILJ 273 (CC);
[2010] 5 BLLR 465
(CC).