R & C X-Press Freight v Munro (JA81/97) [1998] ZALAC 2 (20 February 1998)

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[1998] ZALAC 2
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R & C X-Press Freight v Munro (JA81/97) [1998] ZALAC 2; [1999] 4 BLLR 295 (LAC) (20 February 1998)

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO: JA 81/97
IN THE MATTER BETWEEN:
R & C X-PRESS FREIGHT APPELLANT
AND
PIET MUNRO RESPONDENT
______________________________________________________________________________
JUDGMENT
______________________________________________________________________________
KROON JA
:
[1] The respondent commenced employment with the appellant (“the
company”) during 1992. At the time of his dismissal on 19
September 1995 he was second in command at the company’s Spartan
depot and the position he held was that of operations manager.
His
salary was R5000,00 per month.
[2] The manager of the depot was Mr Morris. The latter’s private
secretary was Ms Potgieter. The switchboard operator and
receptionist
was Ms Young. The administrative block of the depot
comprised a reception area, where Ms Young sat, and a suite of
offices in which
Morris, Ms Potgieter, the appellant and other
employees had offices. The Spartan depot was the “hub” of the
company’s operations.
[3] During September 1995 Morris, in consultation with the
respondent, decided that the telephones at the depot (with the
exception
of the telephone in Morris’ office which was locked in
his absence, and the telephone in the collections department) would
be
“barred” so as to prevent the company’s drivers from
misusing the telephones at night time and over weekends by making
private
long distance telephone calls.
[4] On the morning of 13 September 1995 the firm commissioned to
attend to the barring of the telephones undertook the necessary
work.
[5] Ms Potgieter raised with Morris the problem that the barring of
the respondent’s telephone would prevent the respondent from
making necessary long distance telephone calls to depots in other
centres while he was on duty after normal hours. It was decided
that the problem could be solved by the respondent being taught to
operate the switchboard, to enable him to make such calls.
[6] Ms Potgieter approached Ms Young and advised her of this
decision. Ms Young was requested to type out the necessary steps
to
enable a person to use the switchboard to make long distance calls,
and to give such directions to the respondent.
[7] It was thereafter that the incident occurred which led to the
respondent’s dismissal. The details of that event will be
set out
later.
[8] The respondent was thereafter charged with misconduct and
appeared at an internal disciplinary inquiry. On 19 September he
was found guilty of using abusive and insulting language and also,
in so doing, of not maintaining and not promoting sound
relationships
between the company and its employees.
[9] The sanction imposed was summary dismissal (together with full
pay until the end of September).
[10] An internal appeal against the decision was dismissed on 27
September.
[11] In due course the respondent launched proceedings in the
industrial court in terms of section 46(9) of the Labour Relations
Act, No. 28 of 1956. It was his contention that an unfair labour
practice had been perpetrated in that he had been unfairly

dismissed. He initially sought relief in the form of an order for
his reinstatement plus compensation. At the hearing he restricted
his claim to one for compensation.
[12] The industrial court’s determination was that the appellant’s
dismissal on 19 September had been substantively unfair
and
constituted an unfair labour practice. An award of compensation in
the amount of R30 000,00, the equivalent of six months
salary, was
made in favour of the respondent.
[13] It is that decision which the appellant seeks to assail in this
appeal.
[14] There was a dispute in the Court
a quo
as to how events
unfolded when the incident in question occurred. In a reasoned
judgment PIO AM concluded that the version deposed
to by Morris,
Ms Potgieter and Ms Young was to be accepted and that where the
respondent’s version differed therefrom it fell
to be rejected.
On a consideration of the evidence and the reasons furnished by PIO
AM I am not persuaded that interference
with his factual findings
in this regard is warranted. Indeed, the contrary was not argued.
The relevant facts were accordingly
as set out in the following
paragraphs.
[15] While Ms Young was typing out directions for the use of the
switchboard the respondent came in and enquired what she was doing.

She replied that he was to learn how to use the switchboard “in
the event that he needed to use the switchboard at night or
at
weekends”. His response was that he did not need to know how to
operate the switchboard and he went to his office.
[16] Ms Young advised Ms Potgieter that the respondent refused to
use the switchboard. While they were speaking the respondent
came
out of his office and Ms Potgieter enquired what the problem was
with his using the switchboard. Ms Potgieter was no more
than
puzzled that there should be a problem with the respondent using the
switchboard and she was not upset or angry when she directed
the
query to the respondent. Ms Young confirmed that as far as she
could see Ms Potgieter did not provoke the respondent in any
way.
[17] The respondent’s response was substantially as appears from
the following extract from Ms Potgieter’s evidence:
“Yes, please continue. --- And I simply said to him, “Mr Munro,
what is the problem with the switchboard?”. Mr Munro then
said,
“I am not (excuse me) a fucking switchboard operator. I will not
learn to use the fucking switchboard, I am not doing
a fucking
woman’s job. Do you ... (intervention)
PRESIDENT
: Okay, go slowly. He first said, “I am not a
fucking switchboard operator.”. --- Switchboard operator. “I
am not going
to learn how to use the fucking switchboard. I am not
going to do everybody else’s fucking job.”. I then said to him,
“I
am just simply showing you how to use the switchboard to make a
call if you need to.”. Mr Munro just didn’t seem to want to
listen and said, “Who the fuck are you to give me instructions? I
don’t take instructions from any fucking woman. I don’t
take
instructions from my wife, why must I take it from you” Who the
fuck are you?”, and I kept saying, “Please don’t swear
at me,
do not swear at me. I am simply asking to (sic) you what Mr Morris
has asked me to tell you.”. Eventually, I said, “Please,
I’m
going down to Mr Morris’s office.”, which I did. Mr Munro
followed me down the passage, carrying on the swearing. “Fuck
you”, “Fuck off, I’m not going to do this.”. We got to Mr
Morris’s office where I said, “Mr Morris, please ask Mr
Munro to
stop swearing at me.”. Mr Munro then continued, “Fuck you”,
“Fuck off”, then Mr Morris said, raised his voice
and said,
“Stop it, both of you, go back to your offices.”. I then went
back to my office and ... (intervention)”
[18] The respondent’s outburst also included a comment to the
effect that he was not going to answer telephones. Ms Potgieter
attempted to explain to him that the purpose of his learning to
operate the switchboard was to enable him to make telephone calls
after hours, but she was shouted down by the respondent. The
evidence of Ms Potgieter in this regard reads as follows:
“Why did you not try to explain to him as it appears to be the
obvious thing to do under the circumstances? --- I did. I tried
to
explain but he wouldn’t let me speak. He was really swearing at
me continuously. He wouldn’t let me speak. Every time
I tried to
say something, he would swear at me more.
Yes. --- Until I said, “Don’t swear at me”, and all I
remember saying after that was, “Don’t you swear at me”, until
I walked down the passage.
Was he talking so loud that you couldn’t speak?
--- Yes, he was talking loud.
Yes, but so loud that you couldn’t get in a word?
--- He wouldn’t let me get in a word. He wouldn’t let me get in
a word.”
[19] Ms Young testified that the respondent’s attitude was such
that she feared that he might strike Ms Potgieter. In the words
of
the latter, when she asked the question of the respondent referred
to earlier, “all hell broke loose”, the respondent was
“very
loud” and he was “beyond it”.
[20] As the incident progressed Ms Potgieter also raised her voice.
She explained this by saying that she was attempting to get
the
respondent to heed her pleas that he stop swearing at her.
[21] The incident was very upsetting for Ms Potgieter and she was
reduced to tears.
[22] Three days later the respondent approached Ms Potgieter and
enquired of her whether she would accept an apology from him.
Her
reply was that she was not prepared to do so at that stage. In
explanation of that attitude she pointed to the fact that
the
apology was only tendered three days after the incident and added
that the respondent did not appear apologetic or contrite;
instead,
he was “cocky” and not sorry for what he had done.
[23] Support for Ms Potgieter’s assessment that the respondent had
no remorse for his conduct appears from the following two
passages
in his evidence under cross-examination in the court
a quo
(in regard to which it should be recorded that it was the
respondent’s claim that initially Ms Potgieter addressed him in a

loud and aggressive tone):
“And when you say that Mrs Potgieter raised her voice and said to
you that you were to learn how to use the switchboard, that
caused
you to lose your temper to such an extent that you couldn’t
control what you were saying. --- That’s correct.
Now, don’t you believe that that is an entirely disproportionate
response?, --- I think at the time it was, that the way
that [I]
was instructed to do it, it was aggressive and that’s, as I said
before, I did lose my temper that time.
Yes. But what I’m saying to you is that it was a completely
disproportionate response to the provocation. --- Sorry, I don’t
understand.
PRESIDENT
: So you were totally over-reacting. ---No, I
don’t think I was over-reacting at all.
MR FRANKLIN
: I see. So if somebody says, “Please will you
learn the switchboard” in a raised voice, and you don’t think
it’s disproportionate
to respond, “Fuck you, why should I do
everyone’s fucking job? I don’t take orders from any fucking
woman.”, you don’t
think that’s an over-reaction? --- No,
at that stage, no. When that occurred, no, it wasn’t an
over-reaction.”
“So would you accept that you were not justified in these
circumstances either in swearing at Mrs Potgieter? --- No. In
[these] circumstances, I think it was, unfortunately, as I stated
previously, justified because Mrs Potgieter shouldn’t have
raised
her voice in an aggressive manner to me in the first place.”
[24] Accordingly, no fault is to be found with the finding of PIO
AM, who had the benefit of observing the respondent in the
witness
box, that the respondent displayed no remorse for his conduct.
[25] In the court
a quo
the respondent further sought to
justify his conduct on the basis of a claim that he did not connect
the proposal that he learn
to operate the switchboard with the joint
decision reached by him and Morris that,
inter alia
, his, the
respondent’s, telephone be “barred”to prevent long distance
calls being made therefrom after hours. Instead, so
he claimed, he
formed the impression that it was intended that he perform the
functions of switchboard operator. The claim has
only to be stated
to be rejected.
[26] Further objections raised by the respondent in the court
a
quo
against the necessity for him to learn how to operate the
switchboard (which objections simultaneously went in justification
of
his conduct) were firstly, that his telephone had in fact not
been barred and, secondly, that he could have used the telephone

attached to the fax machine to make long distance calls. The stance
carried no weight. In the first place, he did not raise the
objections at the time. In the second place, he conceded that if in
fact his telephone had not been barred (something which was
not
common cause), that would have been a mistake. In the third place,
Ms Potgieter stated that, in order to prevent unauthorised
long
distance calls being made from the fax machine telephone, it was
kept locked, with the key in her possession, and it was not
used as
a telephone at all. But, in any event, if the respondent was of the
view that there were alternatives to his using the
switchboard to
make long distance calls after hours, the obvious course was for him
to raise same with Ms Potgieter or, if he so
preferred, with Morris
and certainly not to subject Ms Potgieter to the tirade in question.
[27] Two further aspects were invoked by the respondent as having a
bearing on the blameworthiness of his conduct. Firstly, he
testified that he had been under pressure at work, had been working
long hours and was very tired and fatigued. To the extent
that it
is warranted, some mitigatory effect must be accorded to this
feature, notwithstanding that Morris would not accept that
pressure
of work could have contributed to the respondent’s conduct.
[28] Secondly, the respondent testified that Ms Potgieter had in the
past been guilty of interfering in his work. He had in fact
raised
this matter with Morris on one occasion and subsequently also with
one Venter (who, incidentally, presided at his internal
disciplinary
hearing). Nothing had been done about his complaint, however.
Morris admitted these allegations, but added that
the respondent had
merely said that Ms Potgieter should stop interfering in his job and
had not indicated that he wished to take
the matter further. On
analysis this aspect is not of assistance to the respondent. What
the respondent was referring to was
the fact that Ms Potgieter had
relayed instructions from Morris to the respondent and/or workers
under him. However, the court
a quo
correctly held that Ms
Potgieter had done nothing wrong in this regard. At best therefore
it was merely a perception on the part
of the respondent, possibly
because of the manner in which Ms Potgieter went about things, that
she was interfering with his work.
But even if he subjectively had
such a perception, on his own showing in the court
a quo
this
was not a contributory factor to his outburst. In
examination-in-chief he said that when Ms Potgieter allegedly raised
her
voice to him, he, being very busy and tired, lost his temper and
swore at her. Under cross-examination, although initially ascribing
a contributory role to the alleged interference by Ms Potgieter and
the failure by Morris and Venter to address his complaint

thereanent, he thereafter stated that it was not the interference
that caused him to lose his temper, but the alleged aggressive
manner in which she addressed him (an allegation which, as intimated
earlier, is not to be accepted). Moreover, and this is an
important
aspect, it is difficult to see why Ms Potgieter’s conduct on the
day in question could have been viewed by the respondent
as
interference in his job. Ms Potgieter further testified that at no
stage did she receive any inkling that the respondent did
not like
the way in which she relayed messages from Morris and the
respondent’s evidence was that save for the alleged interference
by Ms Potgieter, he and she got on well together.
[29] During argument Mr THEKO, on behalf of the respondent,
contended that some blame for the incident should be ascribed to Ms
Potgieter, and the respondent’s blame correspondingly lessened, on
the basis that, the respondent being her senior, she should
not have
broached his refusal to learn the workings of the switchboard with
him, but should have reported the matter to Morris
and left it to
him to resolve the issue. With respect to counsel, I am not
persuaded that the point has any validity.
[30] Morris testified that the respondent’s conduct had damaged
the relationship between the parties and rendered him unsuitable
to
hold his position. In this regard Morris stated as follows: he
regarded the incident as “very, very serious”; the respondent
lost his temper and swore and used abusive language at his, Morris’,
secretary in the presence of the switchboard operator; that
a
computer operator must have overheard the respondent’s outburst (a
comment confirmed by Ms Potgieter who added that another
supervisor
must also have overheard the respondent’s language); the incident
took place in the middle of the day in the company’s
reception
area and had a client walked in at that stage a very embarrassing
situation for the company would have been the result;
the incident
had damaged their relationship; the respondent had shown himself
capable of flaring up, losing his temper and swearing
in the fashion
in question when the issue at stake was an insignificant one; the
respondent was accordingly not suitable to hold
his position; he,
Morris, would not welcome the respondent’s reinstatement and in
fact could not work with him again.
[31] The position, so Morris continued, had been exacerbated by the
respondent’s testimony in the court
a quo
. In terms of
that testimony the respondent accused Morris of lying in the witness
box, of having his knife in for him and of having
wanted to get rid
of him over a considerable period of time. On the contrary, so
Morris stated, it was he who had suggested that
the respondent be
promoted to the position of operations manager.
[32] The respondent himself acknowledged that as the second in
command at the Spartan depot he had supervisory staff, drivers and
general workers under his command, that it was vital for the proper
running of the business that his staff had respect for his
authority
and that the relationships between him and his staff and between him
and Morris were good and harmonious and that he
got along with and
dealt on a proper footing with the company’s customers.
[33] A relevant mitigatory factor in favour of the respondent is
that he had an unblemished disciplinary record with the company.
[34] PIO AM reached the conclusion that the whole incident was the
result of an unfortunate misunderstanding; otherwise the finding
would have to be that the respondent either lost his temper for no
reason at all or deliberately decided to cross swords with Ms
Potgieter, neither of which found acceptance with PIO AM.
Precisely what misunderstanding was being referred to is, with
respect,
not clear to me. It would seem that what the court
a
quo
had in mind was the dispute whether it was necessary for
the respondent to learn how to operate the switchboard or whether
there
were alternatives to that course.
[35] With respect, however, I am unable to grasp why it was
considered that there was a cause and effect relationship between

this dispute and the respondent’s outburst. As stated in [26]
above, if the respondent considered that there were alternative
courses, he should simply have adverted thereto. What was not
justified at all was his tirade against Ms Potgieter.
[36] PIO AM further held that, while he could not find that Ms
Potgieter had actually done anything wrong in the matter of her
“interference” with the respondent’s work, the respondent did
have the perception that she was interfering with his work.
He had
raised this “bone of contention” with Morris, but the latter
had, wrongly, from a management point of view, done nothing
about
the complaint. The judgment then continues as follows:
“In my opinion, to determine whether the dismissal was
substantively fair, one must ask oneself whether it is fair that an
employee,
with an unblemished disciplinary record, who for the first
time completely loses his temper with a co-employee over a problem
of
which his superior is aware of (sic), but fails to address,
should be summarily dismissed. I think not. The Respondent should
at least have investigated the allegations levelled by the Applicant
against Ms Potgieter. Further, even if the problem with Ms
Potgieter was only perceived by the Applicant, in my opinion, a
final warning would have been sufficient.
However, I have regard to the fact that the Applicant’s conduct
was, to say the least, totally unacceptable and that it can never
be
tolerated by any employer on an ongoing basis. However, under these
circumstances, to sentence the Applicant to the proverbial
death
sentence in labour law is not fair. In the [premises] I find that
the Applicant’s dismissal was substantively unfair and
constituted
an unfair labour practice.
Had the Applicant not indicated during the trial that he no longer
prays for reinstatement as Mr Morris testified that he does
not see
his way open to work with the Applicant anymore, a determination of
reinstatement without compensation might have been
appropriate.
However, I am now forced to consider an appropriate amount of
compensation only.”
[37] In fixing the amount of compensation to be awarded PIO AM took
into account the fact that, to a large extent, the respondent
had
been the co-author of his own misfortune. In this regard the
presiding officer referred to the relatively serious nature of
the
respondent’s misconduct, his absence of remorse, his failure to
apologise properly to Ms Potgieter, and the fact that he
had
attempted to “sell” to the court a much more moderate version of
the incident than what actually happened.
[38] With respect I am unable to subscribe to PIO AM’s finding
that the respondent’s dismissal was substantively unfair.
[39] A causal relationship between the respondent’s perception
that Ms Potgieter was interfering in his work and the respondent’s
outburst was non-existent or, at the very best, it was a tenuous
one. See [28] above. In any event I agree with counsel for the
company that even if there was some perception on the part of the
respondent that this was yet another instance of “interference”
by Ms Potgieter, to be seen also in the light thereof that the
respondent had earlier raised the complaint of her interference
with
Morris and nothing had been done thereanent, the respondent’s
outburst was a response that was wholly disproportionate thereto.
[40] It is trite law that dismissal is an appropriate remedy if the
employee’s conduct has caused the relationship between him
and his
employer to break down or, put differently, if the employer cannot
be expected to continue the employment relationship,
given the
employee’s misconduct.
[41] Conspicuous by its absence in the judgment of the court
a
quo
was any consideration of the question as to what extent the
respondent’s conduct had damaged the viability of the employment

relationship, notwithstanding the evidence of Morris thereanent
referred to in [30] and [31] above.
[42] “The use by an employee of abusive language in the workplace
impacts both on the individual employment relationship and
more
broadly on the interests of the employer’s business. ... Where
abusive language is directed at one or more co-employees,
the ill
feeling and even division which this may create has the potential to
damage the productive efficiency of the business.
... Factors which
serve to aggravate the offence include the extent of the abuse, its
degree, and the level of malice with which
it is accompanied.”
THE SOUTH AFRICAN LAW OF UNFAIR DISMISSAL
: PAK LE ROUX and
ANDRÉ VAN NIEKERK, at pp. 124-125.
[43]
In casu
the extent and degree of the abuse was indeed
considerable; it was accompanied by a marked degree of aggression
and malice; it
was persisted in; it was directed at and against a
woman; it was indulged in in the presence or hearing of other
persons, one of
whom was also a woman and another of whom was the
respondent’s superior and manager of the depot; it took place in a
public area
of the company, with the potential of harm to the
company’s image and business relationships; it was not thereafter
followed
by a genuine apology to the complainant or any show of
remorse; instead justification for the conduct was still contended
for in
the court
a quo
; there was in fact no cognizable
justification for it.
[44] These factors overwhelmingly outweigh any mitigating features
operating in the respondent’s favour.
[45] In the result I am persuaded that the contention of Morris that
the respondent’s conduct had put an end to any employment
relationship between the parties was valid and should have been
upheld.
[46] In
Jamieson v Elsworth
1915 AD 115
, INNES CJ made the
following comment:
“And the position of the manager as compared with that of his
employer was a distinctly subordinate one, so that the latter was
entitled to expect from the former, not indeed subservience, but
ordinary courtesy and civility certainly.”
The entitlement to ordinary courtesy and civility is, however, not
the exclusive right of a superior. A subordinate has a reciprocal
entitlement to expect courtesy and civility from a superior. And an
employer is entitled to expect that a superior employee will
show
such courtesy and civility to a subordinate employee.
[47] During argument Mr THEKO sought to make capital out of the
decision in
National Union of Metalworkers of S.A & Another v
Schnaier Metal Industries (Pty) Ltd
(1992) 13 ILJ 112 (LAC). In
that case a worker summarily dismissed for the use of abusive
language was reinstated in his employment.
The decision is,
however, distinguishable. The
ratio
of the decision was not
that the use of the abusive language did not warrant dismissal, but
that a disciplinary hearing had not
been held and it had not been
shown that had such a hearing been held the result would not have
been different.
[48] The dismissal of the respondent was accordingly substantively
fair.
[49] The appeal is upheld with costs. For the order of the
industrial court is substituted the following:
“The application is dismissed”
_____________
KROON JA
I agree
_______________
MYBURGH JP
I agree
_______________
FRONEMAN DJP
DATE OF HEARING: 13 February 1998
DATE OF JUDGMENT: 20 February 1998
FOR APPELLANT: A.E. FRANKLIN instructed by Bowman Gilfillan
Hayman Godfrey
FOR RESPONDENT: C.K. THEKO instructed by MNR Inc.
This judgment is available on the Internet at Website:
http://www.law.wits.ac.za/labourcrt.