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[2003] ZALAC 6
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Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation Mediation and Arbitration and Others (JA17/02) [2003] ZALAC 6; [2003] 7 BLLR 676 (LAC) (23 May 2003)
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD IN
JOHANNESBURG
CASE NO: JA17/02
In the matter
between:
RUSTENBURG
PLATINUM MINES LTD Appellant
(RUSTENBURG
SECTION)
and
COMMISSION
FOR CONCILIATION First Respondent
MEDIATION
AND ARBITRATION
MAFALO,
ER, N.O Second Respondent
TLAPU,
BS Third Respondent
JOLIVABA,
A Fourth Respondent
MASEKO,
D Fifth Respondent
J
U D G M E N T
___________________________________________________________________
GOLDSTEIN
AJA:
[1] This is an
appeal, from a judgment of the Labour Court in which
Gering
AJ
dismissed an application by the appellant for the review of the
second respondent's award relating to a dispute about the fairness
of
the dismissal by the appellant of the third, fourth and fifth
respondents, to whom I shall collectively refer as "the
employees".
[2] The
dismissal occurred in late November 1998. The resultant dispute
proceeded to arbitration before the second respondent. He
found the
sanction of dismissal too harsh and by implication substantively
unfair, and ordered that the employees be issued with
final warnings,
and that each be compensated in an amount equal to six months'
salary. He did not expressly order reinstatement
but it is clear
that he intended that consequence and the parties have so approached
the matter.
[3] The incident
which gave rise to the dismissals occurred during a soccer tournament
on 24 October 1998. The third, fourth and
fifth respondents were
appointed respectively as team manager, coach and assistant coach of
a soccer team, known as Amplats. This
was a composite team made up
of players from the various mines within the Amplats group including
that owned and controlled by the
appellant. The tournament was known
as the Mining News Soccer Tournament. It was being held for the 24
th
time during the period 21 - 25 October 1998 at West Driefontein Gold
Mine which is not part of Amplats.
[4] During
the arbitration before the second respondent the appellant commenced
adducing evidence and called five witnesses. The
following four of
such witnesses gave evidence relevant to this appeal: Mr van
Moerkerken, the chairman of the Mining News Sports
Committee and the
tournament chairman, Mr Ilott, an employee of West Driefontein who
acted as the host of the tournament, Mr Combrinck,
a senior security
officer of West Driefontein, and Mr Saayman, the Amplats group
representative at the tournament and a sports organiser
in the employ
of the appellant.
[5] The
preliminary rounds of the competition were completed on Friday 23
October 1998. According to Van Moerkerken, Anglo Vaal River
Operations, Iscor, Goldfields and East Driefontein made it through to
the semi-finals. Although Amplats and Iscor each had 6 league
points, according to Van Moerkerken and Saayman, in terms of the
tournament rules, Iscor and not Amplats advanced to the semi-finals
because Iscor had beaten Amplats when they had met during the
tournament. Both the fourth and the fifth respondents expressly
testified
that the Amplats team had qualified to play in the
semi-finals, and in effect the third respondent gave the same
evidence. The fourth
respondent explained that what he referred to
as the SAFA rules applied, and that these provided for the team with
the higher goal
average to succeed to the semi-finals. Amplats' goal
average was higher, he said, than that of Iscor.
[6] The
programme, based on the tournament rules, for Saturday 24 October
1998 included the two semi-finals, Anglo Vaal River Operations
versus
Iscor starting at 9h00 on the A-field and Goldfields versus East
Driefontein on the B-field starting at the same time, a play-off
for
5
th
and 6
th
positions between Amplats and Anglo Gold Free State on the A-field
starting at 11h00, and play-offs for 7
th
and 8
th
and 9
th
and 10
th
positions. All the teams that attended the tournament would be in
action on the Saturday.
[7] In
the event, the Amplats team took up their position at about 8h30 on
the A-field in advance of the semi-final. They continued
to occupy
the field in one or other degree for approximately 3 hours from the
time of the scheduled kick-off. The management team
comprising the
three employees refused to obey the instructions of numerous
tournament officials to get the team off the field, eventually
relenting only at the stage when a crowd of approximately 3000, which
had moved to the A-field, threatened to evict the team. Security
guards were mobilised and the South African Police Services Dog Unit,
in order to escort the team and the three employees onto a
bus in
which they departed. Their exit is described in the evidence of
Combrinck who said that the situation was one which could
have
developed into a riot situation. The Amplat's players lives were in
danger, said Combrinck.
[8] The impasse
resulting from their refusal to leave the field was only resolved
after the semi-final on the adjacent B-field had
been completed, when
the bulk of the crowd, who had been watching the teams there in
action, moved their attention to the events
taking place on the
A-field. According to Ilott the mood of the spectators was on the
"
verge
of becoming explosive
";
they were starting to chant that if the security force did not remove
the players they would do so themselves; he was concerned
that things
could "
turn
ugly
"
and was "
extremely
concerned for (the players') safety
";
it was becoming increasingly apparent that the crowd "
wanted
to take the law into their own hands
"
and "
this
was the main factor why (the players) left the field
".
Combrinck corroborated this version. He testified that the crowd
was "
getting
really annoyed
";
people were shouting, leaving their seats and moving towards the
rails; his concern was to get the team off the field and,
to that
end, he set about mobilizing more security guards and left the field
to give instructions to the SAPS dog handlers he had
called in. Van
Moerkerken also confirmed what had transpired. He testified that the
spectators threatened to take the team off
themselves, that they had
to be restrained by the security guards, and that it was only at this
stage that the team realised that
they better leave the field.
[9] Combrinck
corroborated Ilott's version about there being a large security
presence at that stage. He testified that security
guards were
positioned in such a way as to prevent the crowd in the pavilion from
getting to the players. He also explained that
the Amplats bus was
moved into position so that the team members could move directly on
to it as they came off the field. As far
as Combrinck was concerned,
the scene bordered on a "
riot
situation
".
[10] The
consequences and repercussions of these events were severe. On the
day in question, the semi-final scheduled for the A-field
was delayed
by at least three hours and the three matches for minor places,
involving all of the teams that took part in the tournament
except
for the semi-finalists, had to be cancelled. This meant that the
sponsors did not get the exposure they had bargained for.
This,
taken together with the fact that the sponsors did not want to be
associated with the behaviour displayed by the Amplats team,
resulted
in them reconsidering their sponsorship of the event and threatening
to withdraw. The matter was ultimately resolved between
Van
Moerkerken and the sponsors after a couple of meetings on condition
that "
should
any occurrence of th
is
nature
happen again they will immediately stop the sponsorship
".
Iscor also threatened to pull out of the tournament.
[11] The
tournament disciplinary committee was convened to consider the
incident on the same day that it took place. The committee
resolved
to impose a lifetime ban on the three employees from participating in
the tournament. No such action had ever taken place
in the 23
previous tournaments. Amplats also banned all the team members from
ever representing Amplats again.
[12] The
host mine, West Driefontein, was embarrassed by the events. The host
official, Ilott, described the consequences of the
incident as
follows:
"It
caused a tremendous stir amongst the mine officials, not only on that
day but for months to come thereafter, so much so that
we actually
requested that the Mining News do not have Amplats ever involved in
any Mining News tournaments in the future ... that
was the
recommendation from the managers of the mine ... yes I would say that
it was a great embarrassment to management of Amplats
and certainly
to the tournament, it was a tremendous embarrassment to us as well."
[13] The events
also caused Amplats much disquiet. As Saayman put it: "
It
left me very very embarrass(ed) and I was ashamed that the world
leader in platinum, Amplats ..., behaved like that ... It knocked
a
big dent in the image of Amplats .... We (have) always been referred
to as a well-dressed team, a well-behaved squad, a well-organised
squad. After that ... we are now being labelled as hooligans
".
[14] Attempts
were also made to protect the sponsors by ensuring that the incident
was not published in the press. Van Moerkerken
explained that the
chairman of the Mineworkers' Investment Company expressly requested
him not to report the incident in the
Mining
News
,
and that he agreed in order to protect the integrity of the
tournament and those associated with it.
[15] At
least 10 officials spent much time during the morning attempting to
convince the team to leave the field. The employees did
not dispute
that they remained on the field for a substantial period. Thus the
fourth respondent said that he did not notice how
long they spent
there but that "it could be close to three or two and a half
hours". The third and fifth respondents
gave substantially the
same evidence as to time. The employees all testified that they
waited on the field as long as it was necessary
to get an explanation
as to why they had not qualified for the semi-final.
[16] There
is a fundamental difference between evidence and submissions, within
the context of litigation or arbitration. Witnesses
give evidence of
their observations and parties or their representatives make
submissions in regard to the inferences or findings
justified by the
evidence. Evidence conveys that a witness honestly believes in the
accuracy of what is testified and so, if a witness
gives dishonest
evidence, such evidence does not correctly reflect the witnesses's
state of mind in relation to the event in question.
A submission, on
the other hand, does not necessarily convey the state of mind or
view of its author, except that the latter represents
that in his
view the submission is reasonably arguable on the available evidence.
The difference between evidence and submissions
is central to our
adversarial procedure. It frees legal representatives to present all
reasonable arguments which may be advanced
on behalf of their clients
without impugning their integrity. Thus, save in exceptional
circumstances, it is anathema for a legal
representative to express a
view during argument. The function of a judicial officer, on the
other hand, is to make findings, and
therefore, necessarily, to
express views on competing submissions. It is quite wrong for a
judicial officer to make submissions.
The second respondent's award
does not recognise these distinctions at all, confusing submissions
with evidence. This may well
have resulted in his failure to
analyse the probabilities and give reasons for his conclusions.
[17] The second
respondent's findings appear from the following passages in his
award
1
:
"The
tournament in which the Amplats team participated had been played
during the week and also during the weekend, obviously
meaning it
was sanctioned by the employer and the employees were remunerated
at their normal scales. Therefore it was related
to matters of the
workplace."
"Mr
Saayman, who impressed me as being an honest witness, reiterated
that the team officials had been aware of the rules
and had
persistently ignored the advise of other tournament officials to
tell their players to leave the field. The three dismissed
employees, who also impressed me as being articulate in the
presentations, were quite literate to read the signs and could have
averted the incident due to their seniority and having total
control over their players. Their word, as manager, coach and
assistant would have been supreme and a key determinant of the
deadlock. I therefore, on a balance of probabilities, concur
that
the dismissed officials were responsible for the incident of
disruption of the game by players from the Amplats team who
refused
to evacuate the field of play."
"Every
employer expect the highest form of discipline from its employees
whether during or outside the working environment.
The employee's
conduct had not been one of the best during the tournament on the
24
th
October 1998. Accordingly it did disappoint the employer, which
was answerable to the sponsors, other participants and its
employees."
"As to
the appropriateness of the sanction, it is my honest submission
that â
It was too harsh
for the kind of misconduct committed.
â
Although
exaggerated by the employer's witnesses, there had been no major
disruptions of the tournament.
â
The
employees and their team had left the field of play after
receiving a proper reply to their concerns.
â
There
was no conclusive proof of assault or abusive language being
exchanged.
â
The
press had given the thumbs-up for the event and never reported the
incident.
â
There
was no damage or injury committed on the day."
I have added
roman numerals to certain of the sub-paragraphs of paragraph (d) for
ease of reference.
[18] Despite
the inappropriate use of the word "submission" in paragraph
(d) it is clear that the second respondent was
expressing his views
and findings as to the appropriateness of the sanction.
[19] It is, with
respect to the second respondent, abundantly clear to me that there
is no factual basis whatever for at least the
findings in
sub-paragraphs (i), (ii) and (iv) of paragraph (d) of his award. I
can find no suggestion of appellant's witnesses having
exaggerated
the extent of disruption of the tournament. There is no question
that what occurred was a major disruption. The employees'
version
that they left the field of play after receiving a proper reply to
their concerns is, overwhelmingly on the probabilities,
false. It is
common cause that they were on the field for about three hours.
Saayman testified that he arrived on the field at
about 8h30. After
having spoken briefly to the fourth respondent and the third
respondent, who were insisting that the team play
in the semi-finals,
Saayman said that he went to Van Moerkerken, obtained a copy of the
rules from him and showed the third respondent
the specific rule
concerned. There is no reason to doubt this evidence; the rule was
part of the fixture list which must have been
available. It follows
that it could hardly have taken three hours to convey to the
employees the fact that the Amplats team had
not qualified for the
semi-finals in terms of the applicable rule and to show them the
written rule concerned. It is clear too,
that the press had not
given any approval to what had occurred and that its failure to
report the incident was the result of Van
Moerkerken's intervention
in this regard. In my view all three of the findings are irrational
and not justifiable in relation to
the reasons given for such
findings.
Carephone
(Pty) Ltd v Marcus NO and Others
(1998) 19 ILJ 1425 (LAC) at para [31] and [37],
Crown
Chickens Ltd t/a Rocklands Poultry v Kapp and Others
[2002] 6 BLLR 493
(LAC) at para [58]. What about the second
respondent's finding that the dismissal was unfair because it was too
harsh a penalty?
What about the relief that the second respondent
granted? Although the reasons that the second respondent gave for
that result
were unsustainable, there are, in my view, ample reasons
within the material that was properly before the second respondent
which
render that finding and result justifiable. I proceed to give
such reasons.
[20] Counsel
for the appellant stressed the finding by the second respondent that
the employees were responsible for the disruption
of the game since
they had total control over the members of the team and could have
effected their leaving the field. I did not
understand counsel for
the employees to contest this finding.
[21] In
determining whether dismissal was an appropriate sanction, a central
question which arises is whether the employees acted
in good faith in
occupying the field. This issue turns on whether they were apprised
in advance of the rule applicable during the
tournament to a
situation where two teams, in relation to qualifying for the
semi-finals, scored the same points. The employees
say that they
were not apprised of the applicable rule until officials of the
appellant explained it to them on the field. There
is little of
substance to gainsay this version. Of course, the very fact that the
team took to the field for the semi-finals on
the fateful day is
consistent with their believing they were entitled to do so.
[22] The
tournament rules were handed in during the arbitration. During
Saayman's cross-examination he was asked whether the copy
of the
rules before the arbitrator constituted the tournament rules of which
he had been speaking and he said yes. Asked to indicate
the rule
which had been contravened he said: "I see here is one page
missing, that is the rules that will determine who is going
through
to the semi-finals and finals". Van Moerkerken testified that
during August 1998 a meeting was held of group representatives
at
which the tournament rules were agreed, where Saayman represented
Amplats, and that about two weeks after the meeting the tournament
rules and the fixture list were circulated to the group
representatives. In this regard his exact evidence is somewhat
vague: "(T)hey
were provided with a set of rules as well as with
the fixtures where there was, where there was certain rules
applicable to but we
decided on the format and we also decided on
specific rules which was applicable to the format. Mr Saayman was
supplied with that
approximately two weeks after the meeting."
Saayman at one stage said that he and the third respondent were at a
meeting where
the rule had been finalised. This evidence, at
variance with that of Van Moerkerken, is not relied upon by the
appellant's counsel.
And Saayman later said that he was the only
person present at the meeting in August 1998 representing Amplats
since the other members
of the management team â the employees â
had not been selected yet. About one or two days before leaving for
the competition
he gave a copy of the minutes of the meeting and the
rules to the third respondent, he said. It is significant that he
speaks of
having given the third respondent a copy of the "minutes
and the rules". The applicable rule was in the fixture list,
as
I have indicated, according to Van Moerkerken.
[23] Counsel
for the appellant relies on an exchange between Saayman and the third
respondent, and on another between Saayman and
the fourth respondent
on the morning in question. Saayman said that, when he arrived at
the field in the morning, greeted the fourth
respondent, and
commented that it was a pity that they "did not make it to the
semi-finals", the fourth respondent said
to him "that the
Amplats team will play" and that he (fourth respondent) was "not
prepared to argue with" Saayman.
Saayman says he then approached
the third respondent and told him to get the Amplats team off the
field since they were not playing.
The third respondent replied:
"(T)his rules is not football rules and we will play".
Counsel for the appellant submits
that the response of the fourth
respondent evidences not confusion but outright defiance and
aggression. Similarly that of the third
respondent, it was
submitted, constituted flat defiance and truculence. In this regard
counsel refers to the fact that Saayman said
that the third
respondent was angry. In my view, the evidence relied upon
constitutes no more than a makeweight. Furthermore, counsel's
argument depends on Saayman being able to recall and recount in exact
terms what was said, and the order of the statements made â
something he could hardly be expected reliably to do. It is
interesting to note, against the appellant's argument, that Saayman
said that after the exchange with the third respondent, he went to
van Moerkerken to ask him for an extra copy of the tournament
rules,
took it to the third respondent and showed him the specific rule. If
Saayman had already given the rule concerned to the
third respondent
he would, arguably, have immediately said so to the latter.
[24] There
is no reason to doubt Saayman's evidence that the third respondent
told him that he would not order the players off the
field because
"(t)hat (was) why people (were) being .. killed in the hostels",
and that his attitude towards Saayman was
very poor and
uncooperative. Counsel for the appellant points also to van
Moerkerken's evidence that any problems about the selection
of the
semi-finalists ought to have been raised with the tournament
disciplinary committee and that the management team would have
known
about this.
[25] Counsel
for the appellant relies also on the fact that Van Moerkerken, a
pensioner who had served as the tournament chairman
for the past 13
years, went onto the field on another two occasions on the last of
which he was "sworn at and ... told to F-off
because (he does)
not know soccer and (does) not know the rules of soccer and ... must
get off the field". Van Moerkerken also
testified that Danie
Mulder, a member of the executive and vice-chairman, Johan Steyn,
also a member of the executive, and security
staff all sought to
convince the team to leave. According to Van Moerkerken the three
employees "were very aggressive, not
only towards me but also
towards .... the executive committee and the other people that
approached them". He went on to say
"that Maseko at one
stage pointed his finger right in my face". Counsel also points
to the fact that at about 10h30, after
the team had been on the field
for some two hours, Ilott says he went onto the field together with
Charles Schwartz, who he says,
is a hostel manager, where he found
"the chief security officer", Ben De Klerk "pleading
with the officials to please
come off the field and he gave them the
assurance that he would personally see that there was an
investigation to this whole case".
The three employees made no
attempt to co-operate and adopted a "very arrogant approach
towards Ben de Klerk".
[26] At
one stage the team and management moved to the side of the field but
as soon as the two semi-finalists were ready to take
to the field
they "ran back on the field and invaded the field again",
said Saayman.
[27] The
appellant's counsel relies too, on further incidents which occurred
in the process of the team leaving the field. According
to Ilott,
the fifth and fourth respondents "
converged
on ... Schwartz and became very abusive and threatening towards him
",
which resulted in the crowd becoming even "
rowdier
than before when it appeared that [he] perhaps was being
threatened.... tempers flared and the chantings were louder that
before.
"
When Ilott intervened, he was "
abused
verbally
".
He then walked with the fifth and fourth respondents towards the
team bus, in the process of which the fifth respondent hit
Ilott with
his tog bag â "
a
blow was swung at me deliberately hitting me in the stomach and it
was done with force
"
.
(It
was put to Ilott under cross-examination that the fifth respondent
may have hit him inadvertently, to which he replied: "No,
definitely
not".
The
fifth respondent's version in his evidence was that he assaulted
no-one and that he only met Saayman for the first time at his
disciplinary enquiry). At the time, "
there
was a
large
security presence ... and immediately the ... security of the mine
... intervene(d) and took the two gentlemen and escorted
him
immediately to the bus
".
[28] Counsel for
the appellant also refers us to the fact that van Moerkerken also
fell victim to the Amplats team at the stage when
he went to fetch
something from his car which was parked close to the bus. As he put
it, "
I
was then threatened by Amplats people that they are going to chop of
my car, they are going to damage my car and that they are going
to
kill my wife and myself
".
Saayman was also threatened. He testified that the Amplats
goalkeeper had threatened his life.
[29] I regard
the threatening conduct of the fourth and fifth respondents towards
Schwartz in a very serious light. In the light
of the fifth
respondent's denial that he hit Ilott with his tog bag it is
difficult to make a finding on the probabilities that this
incident
occurred. However, even if it did, the assault, whilst of course
constituting deplorable conduct, is nevertheless, a relatively
minor
one. It is significant in this regard that Ilott did not lay a
charge against the fifth respondent and apparently suffered
no injury
as a result thereof. The threat Van Moerkerken unfortunately endured
cannot in my view, be safely ascribed to the employees
and neither
can the threat of the Amplats goal keeper which was directed against
Saayman. Cf
Fawu
& Others v Amalgamated Beverage Industries Ltd
[1994] 12 BLLR 25
(LAC).
[30] As counsel
for the appellant correctly points out the conduct of the employees
in remaining on the field after they had been
apprised of the
applicable rule was serious and in fact deplorable. Their evidence
that they left once the position had been explained
to them is at
variance with the probabilities and the admitted fact that they spent
a number of hours on the field. Clearly, they
left only at the stage
when it was dangerous for them to continue remaining on the field. By
this conduct they placed their own safety
at risk and the safety of
members of the crowd who might have become physically involved with
attempting to remove them,. I remain
committed to the view to which
we were referred and which I expressed in
Scaw
Metals Ltd v Vermeulen
(1993) 14 ILJ 672 (LAC) at 675:
"A further
consideration, stressed by Scaw's counsel, weighs with me. We live
in a society wracked by violence. Where an employer
seeks to combat
that evil, even by harsh measures, this court ought not to be astute
to find unfairness."
However, in
Scaw
Metals Ltd
the employee made his direct threat of serious violence with a
firearm, albeit an unloaded one. In the present case the employees
did not directly threaten violence. What they did was to create a
situation in which violence may well have occurred.
[31] Counsel
for the appellant stressed as aggravating too the fact that none of
the employees expressed any remorse for the incident.
On the other
hand there are a number of substantially extenuating factors. The
whole incident was, it would seem, the result of
Saayman's failure
adequately to communicate the applicable rule to the third
respondent. Counsel for the appellant contended that
the hostel at
which the employees and the team spent the Friday night must have
been agog with the news of which teams had reached
the semi-finals;
he referred also in this regard to the fact that the public address
system on Friday was reported to have announced
the semi-finalists.
There is, however, no evidence of the sleeping arrangements of the
employees and the team, and of what they
must have heard at the
hostel during Friday night, and it is also not clear that they heard
the public announcement. Clearly, on
the probabilities, the team
was fully prepared and psyched up to play in the semi-finals. Their
disappointment at not being able
to do so because of a rule of which
they were ignorant must have been immense. Then there is the fact
that the three employees were
severely punished by the tournament
committee's decision to ban them for life from future tournaments.
The award of the second respondent
had the effect of depriving the
employees of approximately 7 months of salary. This is a severe
punishment.
[32] Although
it is true that the appellant remunerated the employees in full for
their time spent at the tournament where they were
representing the
appellant and were in fact its ambassadors, it is of significance
that they were involved with duties which were
different from their
normal ones. The fourth respondent had been employed by the
appellant since 7 March 1977 and at the time of
his dismissal was
chief clerk at its Phula hostel. There does not appear to be any
connection between his normal duties and those
he was responsible for
on the fateful day. The same applies to the fifth respondent who was
in the employ of the appellant since
16 April 1990 as a clerk at the
appellant's B-hostel. The fact that they will not participate in the
tournament again of course
also renders a repetition of their
misconduct most unlikely.
[33] The
third respondent's position is different. The nature of his work
does appear to be related to his duties on the fateful
day. The
third respondent had held the position of senior welfare assistant at
the Appellant's B-Hostel since 11 March 1991. Saayman,
who, it will
be recalled, was a sports organiser in the employ of the appellant,
said that his own duties were "to organise
sport and tournaments
for the employees and the company". This included representing
the company at sports tournaments. Saayman
testified that the third
respondent's duties as senior welfare assistant were "(b)asically
to organise sport and in fact to
be my ... second in charge".
This included the third respondent representing "the company
Amplats at various tournaments
including provincial and national
tournaments ..." Saayman said that it was the third respondent's
duty as team manager to look
after the welfare of the team and to see
that they behaved well and that they observed the tournament rules.
If there were any matters
of concern to the players, he was obliged
to communicate with Saayman in regard thereto.
[34] Counsel
for the employees argued that the appellant had not clearly
indicated the extent to which the third respondent's normal
duties
differed from those he undertook as team manager. This submission
has some merit, but it does seem to me clear that the third
respondent's normal job was that of a sports organiser who organised
sports and tournaments but did not deal directly with players
as a
team manager was required to do. As sports organiser the third
respondent's normal duties may notionally bring him into a
situation
where a team involved in a sports event or tournament he has
organised has a dispute with the authorities concerned. The
question
is whether the employer is entitled to be reasonably afraid that the
third respondent may not act responsibly and that he
may join those
wrongly acting in defiance of legitimate authority. The third
respondent's misconduct, all the relevant circumstances,
and the fact
that, according to Saayman, he was a very experienced organiser and
knew his responsibilities, support the view that
the answer is yes.
So does the consideration that the employer was entitled to expect
far better conduct from so senior an employee.
It is also relevant
to note that Saayman was understandably very embarrassed and ashamed
that the world leader in platinum, Amplats
was seen to have behaved
as it had, and that Saayman expressed pride in the Amplats team which
was always referred to as well-dressed,
well-behaved and
well-organised, but now was labelled as hooligans.
[35] A relevant
consideration is whether we ought to distinguish between the third
respondent and the other two employees. I think
not, for the
following reasons: Counsel for the appellant did not suggest that we
do so. Possibly this was because differentiation
would have to
contend with a principle on which we were not addressed â the
"parity principle", which "comprehends
the concept
that employees who behave in much the same way should have meted out
to them much the same punishment".
Post
Office v Fennel
(1981) IRLR 221
at 223 â quoted with approval in
National
Union of Metalworkers of South Africa and Others v Henred Fruehauf
Trailers (Pty) Ltd
[1994] ZASCA 153
;
1995
(4) SA 456
(A) at 463G-J. I refrain from deciding whether it may
have been fair to differentiate between the third respondent and the
other
two employees given the particular circumstances of this case.
Cf.
Cape
Town City Council v Masitho and Others
(2000) 21 ILJ 1957 (LAC) at para [13]. Then there is the utter
singularity of the event â requiring the confluence of a
substantial
number of occurrences, including a tie on points and a
misunderstanding on the applicable rule â which makes a repetition
of the
misconduct highly unlikely. It follows that realistically the
answer to the question I have posed in para [35] above is no.
Furthermore
having been part of the body of players and management
team, who believed they had made it to the semi-finals, the third
respondent
may well have found it extremely difficult emotionally to
break ranks with his companions, and to change his stance and back
down.
[36] The
sanction of dismissal often amounts to a death knell in respect of an
employee's employment not only with the employer concerned
but also
in the open labour market. In all the circumstances, in my judgment,
the penalties imposed by the appellant on the employees
were too
harsh and it seems to me that the penalties effectively imposed in
the second respondent's award, and the lifetime bans
imposed by the
tournament disciplinary committee punished them sufficiently. The
compensatory aspect of the award was not attacked
in the review
application or in argument before us. Counsel on both sides argued
the matter on the basis that, if we found that
the reasons given by
the second respondent were unsustainable but we were of the view that
the result is correct or justifiable,
we should not interfere with
the award. I have found that the result of the arbitration is
justifiable. Accordingly there is no
basis to interfere with the
award and the appeal must fail.
[37] I
record our indebtedness to counsel on both sides for their able,
helpful and full arguments.
[38] In
the result, the appeal is dismissed with costs.
_____________________
E
L GOLDSTEIN
Acting
Judge of Appeal
I
agree
_____________________
R
M M ZONDO
Judge
President
I
agree
____________________
A
N JAPPIE
Acting
Judge of Appeal
For
Appellant: J J Gauntlett SC
A T Myburgh
Instructed
by: Leppan Beech Attorneys
For
Third, Fourth and Fifth Respondents: FA Boda
Instructed
by: Zietzman - Horn Inc
Date
of Hearing: 26 February 2003
Date
of Judgment: 23 May 2003 May 2003
1
I
refrain from using the word "sic" in respect of errors in
the passages to which I have appended the letters (a) â
(d) for
ease of reference.