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[2016] ZALAC 8
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City of Cape Town v Freddie and Others (CA13 /14) [2016] ZALAC 8; [2016] 6 BLLR 568 (LAC); (2016) 37 ILJ 1364 (LAC) (15 March 2016)

INTHE
LABOUR APPEAL COURT OF SOUTH AFRICA,
CAPE
TOWN
Case no: CA13 /14
DATE: 15 MARCH
2016
Reportable
In the matter
between:
CITY
OF CAPE
TOWN
...........................................................................................................
Appellant
And
SIPHIWE
FREDDIE
....................................................................................................
First
Respondent
SOUTH AFRICAN
LOCAL GOVERNMENT
BARGAINING
COUNCIL
......................................................................................
Second
Respondent
MELWYN
NASH
N.O
................................................................................................
Third
Respondent
Heard: 7 May 2015
Delivered: 15
March 2016
Summary: Racism
and racial abuse in the workplace cannot be tolerated.
Coram:
Tlaletsi DJP, Davis
et
Ndlovu JJA
JU
DGMENT
NDLOVU
JA
Introduction
[1]
This is an appeal against the judgment of the Labour Court
(Rabkin-Naicker J) handed
down on 15 February 2014 in which the Court
a quo
dismissed the review application launched by the
appellant against the arbitration award issued by the third
respondent (the arbitrator)
operating under the auspices of the
second respondent, the South African Local Government Bargaining
Council (the bargaining council).
[2]
In terms of the award, the arbitrator held that the dismissal of the
first respondent,
Mr Siphiwe Freddie (Freddie) was substantively
unfair and ordered the appellant to reinstate him to its employ with
retrospective
effect from the date of his dismissal, plus further
ancillary relief. The Court
a quo
granted the appellant leave
to appeal to this Court.
[3]
The appellant is the City of Cape Town Metropolitan Municipality,
constituted in terms of
Section 12 of the Local Government: Municipal
Structures Act 117 of 1998 (the Municipality). Freddie was formerly
employed by the
Municipality with effect from 22 November 1993 as an
assistant professional officer until his dismissal on 5 March 2012
consequent
upon his conviction for misconduct by the Municipality’s
disciplinary enquiry. At the time of his dismissal, he was earning

R205 140-00 per annum.
[4]
The issue between the parties was whether Freddie’s dismissal
was the appropriate
sanction in the circumstances of this case.
The
factual matrix
[5]
On 6 June 2011, Freddie was summoned to appear before the appellant’s
disciplinary
enquiry in respect of misconduct charges which were
formulated as follows:
‘
1.
You misconducted yourself in that between 25 February 2011 and 15
April 2011, in various
email communications and in a one-on-one
situation you were grossly insubordinate/insubordinate in that you
acted in an insolent,
provocative, aggressive and intimidatory manner
towards your management team.
2.
You misconducted yourself in that on or about 16 March 2011 at
approximately
12:01 pm you behaved in an unacceptable manner when you
abruptly ended the phone call with your colleague by “putting
the
phone down in his ear whilst he was still talking.”
3.
You committed serious misconduct on or about 02 June 2011 when you
e-mailed your
Line Manager (Mr. I Robson), a derogatory, insolent,
racist, provocative and offensive e-mail.’
[6]
He was found guilty on counts 1 and 3 and acquitted on count 2. As
stated, he was
dismissed on 5 March 2012. His internal appeal was
unsuccessful. Hence, he referred a dispute of unfair dismissal to the
bargaining
council for conciliation. After the conciliation process
failed, the matter proceeded to arbitration before the arbitrator.
The arbitration
proceedings
[7]
As stated already, the issue for determination by the arbitrator was
whether Freddie’s
dismissal was substantively fair, in the
sense of whether the sanction of dismissal was the appropriate remedy
in the circumstances
of this case. The aspect of procedural fairness
was not in dispute.
[8]
Witnesses for the appellant were Mr Irvin Robson (Manager: Public
Participation Unit)
and Mr Frederick Venter (Professional Officer:
Public Participation Unit). Freddie gave evidence and was represented
by Mr Brendan
Guy, his attorney of record. The appellant was
represented by Mr Ashley Lawrence.
[9]
It was common cause that Robson was in overall charge of the public
participation
unit (the PPU). Both Venter and Freddie worked under
him. The PPU was directly responsible to the Office of the Speaker of
the
appellant’s Council and the Executive Mayor.
The
appellant’s case
[10]
Robson testified that the PPU received a directive from the Office of
the Speaker to account on how
the PPU staff utilised their official
time. As a result of this directive, Robson instructed the staff
concerned, including Venter
and Freddie, to submit reports showing a
detailed breakdown of their projects. A report would need to reflect,
among other things,
the nature of the project, what gave rise to it
and the current progress. According to Robson, Freddie’s report
did not meet
these requirements. Freddie simply forwarded an e-mail
with attachments, without any explanation.
[11]
Robson further testified that Venter had compiled his report in
accordance with the correct format;
and he then called both Venter
and Freddie to a meeting at which he instructed Venter to guide
Freddie in compiling his report
in accordance with the correct
format. This sparked the altercation. Robson testified that Freddie,
in an aggressive and intimidating
manner, confronted him, questioning
why he was expected to take instructions from Venter. During the
altercation, Freddie threatened
Robson, saying: “
I will deal
with you Irvin”
(addressing Robson by his first name).
[12]
Freddie simply refused to work with Venter on the compilation of his
report in accordance with the
correct format. Instead, as Robson put
it, Freddie “
embarked on a bombardment of emails”,
which he copied to certain employees within the appellant’s
organization (including Robson himself), accusing Robson of
management incompetency and of being a dismal failure.
[13]
Given the fact that the gravamen of Freddie’s alleged
misconduct (referred to in counts 1 and
2 of the misconduct charge)
was founded mostly on the said e-mails; and as much as I would be
loath to have this judgment “littered”
with so many
emails, I nevertheless deem it apposite and fair to refer to most of
the e-mails, to the extent relevant:
13.1
Email
dated 10/3/11 at 01:07 pm: addressed to Robson, Mr Trevor
Hollis-Turner (Acting Director: Governance and Interface) and copied

to Mr Johan Appels (the union representative):
[1]
(For
the sake of averting confusion, it should be noted that, in the
e-mail below, the name Freddie does not refer to the third
respondent
but to Venter, as Venter’s first name was ‘Frederick’).
‘
As
per your invitation to Freddie’s office and what you stated to
me can you please give me some[thing] in writing that says
my job is
redundant. Secondly I find it an insult for you to discuss my work
report to with (sic) Freddie. The fact that you are
not happy with my
report has nothing to do with Freddie. I have my own office or you
should have called me in your office and discuss
the matter with me.
In fact you were trying to show Freddie that I am worth nothing to
your (sic) other than your intentions of
making my job redundant.
This
boils down to what I have been saying that Mr Robson is victimizing
me the worse thing is that showing off with my colleagues
whenever he
intends addressing a matter with me. He is belittling me and that
amounts to discrimination.
[Mr]
Apples (sic) please ensure that you take up this matter with
management of Governance and Interface.’
13.2
Email
dated 10/3/11 at 01:28 pm: addressed to Robson, Hollis-Turner and
Appels)
:
[2]
‘
Firstly
let me correct you in this regard may be you thought you were going
to tell her (him, Venter?) that he is acting on Tessa’s

(presumably the former SPO’s) position that never happen (sic),
all you said was that he will be doing some of his and that[‘s]

all, you never made mention of the fact that he is in charge of me.
Secondly
stop belittling me Irwin, I am not your son
.
If my job is redundant do what is required of you as manager.’
13.3
Email
dated 22/3/11 addressed to Robson and copied to Venter and Appels:
[3]
‘
Secondly
stop irritating me, if you want anything from me stop copying
Freddie, he has nothing to do with my work, I don’t
report to
him, he has his own job description I have mine, he can be a
Professional Office while I am an assistant, for me I don’t

recognise him in that position simply because he was appointed in
that position due to his colour if his skin, he has only four
years
of service while I have seventeen years of service and earning more
than me, even with skills, the type of work that I am
doing he can’t
do it, but I can perform all what is doing, so stop insulting me
Irwin. Secondly for your letting of him to
act in that position is
flouting of the council policies being an advocate. What is going to
do after he has acted in the position
other than for you to give a
chance to black people to act in that position per the City of Cape
Town policy and may be you want
to tell me that you don’t have
confidence on me, due to having a wrong colour.
I
will not listen to him at all Irwin.’
[14]
However, Robson did point out that, in terms of a recommendation by a
relevant committee of the appellant,
Freddie had been recommended for
translation to the designation of full PO and, according to Robson,
it was not clear why that
recommendation had not been implemented.
Robson also pointed out that it appeared that Freddie was further
infuriated by the fact
that, after the resignation of a senior PO
(SPO) Robson had, as an interim measure, allocated some of the SPO’s
functions
to be performed by Venter.
[15]
During March 2011, Freddie was absent from work for four days, on
sick leave. It was the appellant’s
policy that on return from
sick leave, an employee should attend an interview known as a “return
to work interview”,
with such employee’s manager. Robson
testified that Freddie refused to attend the interview unless he was
accompanied by
his union representative. Robson explained to him
that, as the interview was only an internal process, the appellant’s
policy
did not allow an outsider to participate. However, Freddie
insisted that his union representative be present at the interview.
Seeing that he was not having things his way, he addressed the email
below (dated 17/3/11 at 12:08 pm) to Robson, which he copied
to
Appels:
[4]
‘
I
was in the office yesterday to submit my sick certificate. I don’t
have a problem for Adv Robson to question the doctor
because for me I
did not feel well as a diabetic and I went to the doctor.
Mr
Robson for any question you can phone the doctor in my medical
certificate because
I don’t have answers for your interview
even when I am back at work, the answers are in my medical
certificate.
This
man [referring to Robson] told me last week that my job is redundant
I have no job at PPU.
Mr
Appels as my union rep please take not (sic) of this, I’m being
dismissed by Mr Robson. …’
[16]
On the same day (17/3/11 at 11:33 am), Robson addressed another
e-mail to Hollis-Turner, discussing
Freddie’s conduct (the
email was copied to Freddie):
‘…
Might
I state that this official [Freddie] if (sic) officially on sick
leave from Monday this week until Today, though he has been
in the
office on at least two occasions to my knowledge. I am awaiting his
official return to work (tomorrow) in order to conduct
the return to
work interview with him. Further to this he has now on at least
three
occasions wilfully refused or failed to provide me with a summary of
work done during the months from November to February of this
year as
has been requested by the office of the Speaker. He continues to
refuse to comply with my instruction in this regard. Every
other
staff member in the unit has done so at least two weeks ago.
As
you are aware I have most recently retracted a verbal warning which I
issued to the staff member concerned for his failure to
attend staff
meetings timeously. This issue was resolved after it was agreed that
(only in respect of this official) he would be
“reminded”
about the need for him attend in advance by other staff. Again, [this
is] an arrangement which applies to
no other official in this unit.
I
would be failing in my functions as a manager of this unit if I were
to arbitrarily waive rules in respect of one staff member,
where all
staff are expected to comply.
Finally
I must inform you that I have signed and approved sick leave for 4
days in respect of this official who has apparently now
been in the
office. I am now obliged to make further enquiries as to the exact
nature and extent of the sick leave which he has
taken, and will
follow this up with the appropriate officials at IR.’
[17]
Before Hollis-Turner could respond to Robson’s e-mail above
(dated 17/3/11 at 11:33 am), it was
Freddie who sent the following
e-mail to Hollis-Turner, 27 minutes later (at 12:00 pm) which was
copied to Robson and Appels:
[5]
‘
Irwin
is continuing with humiliation, whatever you may call and the reason
why I am coming to you is the fact that, I don’t
want you to
say I have never inform (sic) your office about this problem, how
many times have I requested your office to intervene.
The last time I
approached your office I was told that I would be disciplined and all
these problems started in 2008, up until
today no solution has been
found, while victimization by Irwin is the norm in that office.
This
man is abusing me Trevor
.’
[18]
Trevor Hollis-Turner responded to Freddie via an undated e-mail
(presumably still on 17/3/11):
[6]
‘
The
content of your emails are noted with concern.
Upon
your return to work I would suggest that you meet with your Manager
[Robson] in an attempt to resolve your unhappiness. If
after such
meeting, you remain distressed, then I would be prepared to meet with
you and Adv Robson in a further attempt to find
a way forward. I do
not, however, believe that this matter will be resolved by email and
I will accordingly not be responding to
further emails in this regard
until such time as I receive (hopefully positive) feedback following
your meeting with your Manager.’
[19]
Freddie reacted on the same day (17/3/11) to Hollis-Turner’s
e-mail above. At 13h32 on that day,
he addressed the following e-mail
to Appels, which he copied to Robson and Hollis-Turner:
[7]
‘
For
your information, just because you were not copied in this e-mail,
Trevor is referring us back to a man who
failed us before and is going to continue to fail us, you can
negotiate and negotiate,
if a person hates, that person will never be
changed by the fact that you are engaged in negotiation with him/her.
For us to go
back to table with this manager is a waste of time
and as my union rep if you share sentiments as per my update whenever
this victimization takes place, the only thing we need to
do, is to
follow whatever process
the city has to
ensure this man fades the consequences of his action/utterances.
The office of the City Manager is aware about this problem. For me
whether this matter can end up in the court of law I am prepared
to
face it. This man is an advocate by profession and he should know
better than anyone of us, that
his
behavior as a manager is not acceptable
.
He even humiliated me so many times in front of his staff. The reason
for him to have an office is to give privacy to his staff
when
dealing with matter affecting them. The meeting he was talking about
in one of the e-mails,
the man came up
to me gun blazing and I never saw him so furious, there is not a
single thing he left in humiliating me
and I kept quiet, I got to his office, then he chased me like a dog
while trying to engage him. If we can look at this from a
constitution perspective, this man being an advocate has violated my
right to dignity, privacy etc, the 2008 ORP, him and the city
have
violated my right to (sic) unfair discrimination (Elimination of
Unfair Discrimination Act of 2000), because in that process,
I
was totally discriminated against
being
an individual who is from a disadvantaged background.
All these issue we must be taken (sic) to those who are relevant in
terms of dealing with them.
Mr
Appels, please forward this e-mail to Mario, the SAMWU Advocate, he
told me to lodge a complaint with him the other day when
I was in his
office.’
[20]
In the meantime, Freddie continued with his failure to comply with
the instruction to submit his report
and to attend the “return
to work interview”. In one of the e-mails (dated 22/3/11 at
14:56),
[8]
Robson reminded
Freddie about the report. Freddie promptly responded - only 10
minutes later (at 15h06):
[9]
‘
I
am not going to say this again unless you are still with the campaign
in terms of humiliating me, and stop irritating me in doing
my work,
you are making me lose my focus, I have given you all my reports
Irwin.’
[21]
It was clear that Freddie was not prepared to accept Venter as
his senior, despite it being common cause that Venter was designated

as full professional officer (PO) whilst Freddie was placed as
assistant PO (APO). This attitude on the part of Freddie is evident

from his e-mail (dated 22/3/11 at 15:39) below which he addressed to
Robson (Again – for the reason stated above - he refers
to
Venter as Freddie):
‘
Secondly
stop irritating me, if you want anything from me
stop
copying Freddie, he has nothing to do with my work, I don’t
report to him
, he has his own job
description I have mine, he can be a Professional Office while I am
an assistant, for me
I don’t
recognise him in that position simply because he was appointed in
that position due to his colour of his skin
,
he has only four years of service while I have seventeen years of
service and earning more than me, even with skills, the type
of work
that I am doing he can’t do it, but I can perform all what is
doing, so stop insulting me Irwin. Secondly for your
letting of him
to act in that position is flouting of the council policies being an
advocate. What is going to do after he has
acted in the position
other than for you to give a chance to black people to act in that
position per the City of Cape Town policy
and may be you want to tell
me that you don’t have confidence on me, due to having a wrong
colour.
I
will not listen to him
at all Irwin.’
[22]
On his insistence not to attend the “return to work interview”
with Robson in the absence
of his union representative, Freddie, on
28 March 2011 (at 09:58 am), sent the following e-mail to Robson, in
which he further
confirmed that he was aware of the respondent’s
policy in this regard.:
‘
Let
me confirm with you that,
I will not
meet with you without my shop steward, I fully understand that it is
the council policy
, but in you (sic)
instance I am of the opinion that it will not be used to serve the
spirit/purpose in which it was developed,
but you (sic) own agenda of
getting rid of me. Remember that,
there
is a complete breakdown of trust between you and me and I doubt very
much, it can be retrievable
. The very
same return to work interview can be used against me, in fact last
week, I made it clear if you want to know more about
my sickness, you
can phone Dr Parker who will give you more details about the status
of my sickness.  I am not a medical doctor
I won’t be able
to answer some of you (sic) question. In the mean time you can sent
(sic) me you (sic) questions so as to
prepare myself for the
interview. …”
[23]
On 15 April 2011, at a staff meeting, Freddie raised an issue around
Venter’s management of a
particular project. This culminated in
a confrontation between him and Robson. According to Robson, the
situation had reached the
end of his tether and he considered Freddie
an ingrate. He said, at that stage, Freddie got up and walked over to
him and pointed
his finger in his (Robson’s) face, saying that
he had “an attitude”. Thereafter Robson approached the
City Manager
and asked that Freddie be suspended with immediate
effect, which was done.
[24]
On 2 June 2011, Freddie sent to Robson an e-mail in which he labelled
Robson a racist and comparing
him to Verwoerd. This e-mail seemed to
have served as a final straw to Robson:
You
can fool everybody in that office, pretending as if you care about
black people, I have been with you for a long time Irwin,
I know you
back and front, you are a racist of the highest order, the way I look
at
you are even more than
Verwoerd
.
I
was born at the height of apartheid, you cannot fool me about racism.
You are a racist Irwin, if you have
never been told who you are, today you are getting it from me
.
I am telling you your true colours and I am wondering as to how did
you chose to be an advocate
, while at
the same time being a party to oppression by the imperialists, it’s
just contradictions, maybe you should attempt
to practice your
profession, so that you know exactly what it means. (my emphasis)
(Bold for emphasis)
[25]
Robson testified that he did not feel that he could ever work with
Freddie again. He further stated
that there was evidence to the
effect that Freddie was disciplined previously for insubordination
whilst working in the Solid Waste
department. Accordingly, Robson
testified, Freddie’s employment relationship with the appellant
was then non-existent.
[26]
In his testimony at the arbitration hearing, Venter confirmed the
evidence of Robson that Freddie did
not comply with Robson’s
repeated instructions to submit the report in the desired format.
However, he said that he managed
to explain to Freddie what was
required in the report. He said their meeting was amicable and he had
thought that Freddie would
comply and submit the report, which
however he did not. Venter further confirmed the incident when
Freddie, in an angry and aggressive
manner, pointed his finger on
Robson’s face during a staff meeting on 15 April 2011.
Freddie’s
case
[27]
In his evidence, Freddie pointed out that he commenced employment
with the appellant on 22 November
1993 as a general worker in the
Solid Waste department where he worked on [refuse] trucks and
sweeping streets. In the following
year, he was appointed as a clerk
in the Solid Waste department. He occupied that position for nine
years before being appointed
to the PPU. In the meantime, he was
furthering his studies and in 2011 he obtained a B-Tech degree in
Public Relations.
[28]
He conceded that in about the year 2000, he was issued with a written
warning, whilst in the Solid
Waste department, after he was involved
in an argument with a colleague whom he said had called him a
“kaffir”. He
said, in reaction, that he had made
derogatory utterances towards the said colleague. As a result, they
were both disciplined by
the appellant for misconduct.
[29]
He confirmed his unhappiness about the appellant’s failure to
place him properly as a full professional
officer. He felt that it
showed a lack of acknowledgement by the appellant that he was the
first person in the public participation
unit responsible for
training new people in the Unit. He pointed out that after the
implementation of the so-called Organizational
Realignment and Parity
(ORP) process in 2008, he had expected that his designation and
salary would be properly adjusted, but it
did not happen. His
designation as APO did not change whilst all other staff members were
placed higher. He had objected to the
placement and felt frustrated
because he said the reasons advanced for non-adjustment were
unreasonable.
[30]
Freddie further testified that one day he arrived late for a meeting
and Robson chased him out of the
office. He said he explained to
Robson that he had delayed because he was attending to community
members and had forgotten about
the meeting. He said Robson did not
want to listen to him but, instead, ridiculed him in front of his
colleagues and chased him
out of his office. He felt that Robson did
not respect him precisely because he was Black. This happened despite
the fact that
he was the most sacrificing employee in the unit. He
also introduced the issue about being given old office furnisher
compared
to his colleagues; and further that he was the only official
in the unit who was required to use a printer that was not located
in
his office.
[31]
Freddie stated that when he thought the situation was getting worse,
he then resorted to writing e-mails
to Mr Hollis-Turner who, however,
referred him back to Robson. When he consulted with his union, it was
suggested that he should
meet with Robson. An invitation was extended
to Robson for their meeting, but Robson declined it.
[32]
He conceded, however, that for him to compare Robson to Verwoed was
uncalled for. He said this was
out of frustration as he worked in a
hostile environment.
[33]
On the report issue, his version was that the appellant erred in not
supplying to the arbitration hearing
the report that he had submitted
to Robson. He confirmed that Venter gave him his report as a guide
and he took it to his office.
However, a short while later Venter
returned and requested his report. He did not regard his conduct in
this regard as insubordination,
but rather at best, as failing to
comply with the format.
[34]
The one-on-one meeting with Robson on 15 April 2011 had started in a
cordial fashion. However, Robson
subsequently started to confront him
as to why he was doing so little work. His response was that Robson
should ask himself because
he was the one responsible for allocating
work. Robson then remarked that he (Freddie) was pathetic and a
destruction to the unit.
He said an argument ensued and Robson ended
up pointing a finger at him and he pointed his finger back.
[35]
Freddie further testified that he did not consider that his
relationship with the appellant was destroyed.
However, he conceded
that his relationship with certain individuals in the appellant’s
employ was probably broken down, but
that was not the case with the
appellant. On hindsight, he conceded that he should probably have
done things differently as people
learnt from their mistakes. He took
responsibility for his actions where he made certain bad comments. He
felt he had legitimate
issues but only that he adopted a wrong
approach.
[36]
He further said that despite his broken relationship with Robson he
could still work with him. He was
then prepared to submit to Robson’s
authority. He denied the suggestion that he did not show any remorse
at the arbitration
hearing. He said his remorse was genuine and he
had since been guided by certain people in that regard. He accepted
that comparing
Robson with Verwoed was wrong and uncalled for.
However, he pointed out that, had there been earlier intervention by
the appellant,
the confrontation would not have escalated.
The arbitrator’s
findings
[37]
In his analysis of the evidence, the arbitrator pointed out that
Venter had conceded that he had given
Freddie limited access to his
(Venter’s) report and that this supported Freddie’s
version as regards his allegation
that he did not receive adequate
support from Robson and Venter in relation to compiling the report.
In this regard, Venter testified
that he feared that Freddie would
plagiarise his (Venter) report. The arbitrator found it difficult to
sustain this argument because
each report required details relating
to an individual’s specific project. There was therefore no
chance that Freddie could
plagiarise Venter’s project since
they had different projects. If anything, Freddie would probably only
be able to “plagiarise”
Venter’s format of the
report which, in any event, was what Robson wanted to be done. Venter
had also not consulted with
Robson on that issue, which he could and
should have done.
[38]
However, the arbitrator further found that Freddie gave contradictory
evidence on the issue of the
report. Whilst Freddie alleged that he
was not assisted by Venter, he also stated that he actually submitted
a report which was
compliant with the requirements and that he did so
after he had discussed it with Venter. Indeed, it meant that if the
report was
compliant, it was because Venter had assisted him. The
arbitrator further found no substance in Freddie’s contention
that
the appellant failed to submit his report at the arbitration
hearing. The arbitrator held that it was incumbent on Freddie to have

done so, not to the appellant.
[39]
In an attempt to justify his accusations that Robson was a racist,
Freddie referred to issues
such as Robson having allegedly humiliated
him in front of the staff; that he was discriminated against by the
appellant in relation
to his placement; that he was required to use a
different printer and that he was the recipient of the old furniture.
However,
the arbitrator found that all these accusations were either
unfounded or unsubstantiated. Significantly, the arbitrator found
that
there was no evidence of racism or racist attitude on the part
of Robson towards Freddie. This was only Freddie’s subjective

view, not supported by facts. As a matter of fact, Freddie admitted
that the e-mails he sent (to his superiors) were uncalled for
and had
a bad taste; and that he accepted responsibility for his actions.
Accordingly, the arbitrator found that the appellant’s
version
was more probable than that of Freddie.
[40]
However, the Arbitrator noted that Freddie acknowledged his mistakes
after receiving advice from
his attorney and other people. The
arbitrator further believed that Freddie showed genuine remorse for
his conduct at the arbitration
hearing and that he had since
understood that he was subservient to the authority of the employer.
[41]
The arbitrator also considered that Freddie had long years of service
with the appellant. He
had started work with the appellant as a
cleaner in the Solid Waste department. He furthered his studies until
he obtained a B
Tech degree whilst in the appellant’s employ.
This, according to the arbitrator, showed that Freddie enjoyed some
measure
of satisfaction in being of service to the appellant.
[42]
On the issue of whether the employment relationship between Freddie
and the appellant had irretrievably
broken down, the arbitrator felt
that there were never any constructive attempts by the parties to try
to resolve their dispute.
On this basis, the arbitrator held that
dismissal was not an appropriate sanction. Hence, the arbitrator
concluded that Freddie’s
dismissal was substantively unfair and
ordered his reinstatement.
[43]
The appellant was not satisfied with the outcome of the arbitration
process and thus took the matter
up on review with the Labour Court,
in terms of section 145 of the Labour Relations Act.
[10]
The Labour Court
[44]
In its grounds of review, the appellant submitted that the
arbitrator’s award constituted a decision
which no reasonable
decision-maker could make, given the material presented to the
arbitrator. The arbitrator failed to apply his
mind to the factual
and legal issues before him. It was further submitted that the
arbitrator’s finding that the employment
relationship between
the appellant and Freddie had not broken down irretrievably reflected
a disregard of the evidence adduced
at the arbitration hearing.
[45]
The Court
a quo
took into account factors which the Court
obviously regarded as strong mitigating circumstances in favour of
Freddie as to have
rendered his dismissal substantively unfair. These
included the following: Freddie’s length of service; his
display of remorse;
the fact that his written warning pertained to an
incident where Freddie had used derogatory and disrespectful remarks
to a colleague
after he had been called a “kaffir”; the
fact that the appellant was a large entity which could accommodate
Freddie
elsewhere where he would not work with people like Robson and
Venter; and that Freddie had already served a three month suspension

in respect of the misconduct in count 3.
[46]
On this basis, the Court
a quo
found that the arbitrator’s
conclusion that Freddie’s dismissal was substantively unfair
and that he must be reinstated
was “well-reasoned” and
did not constitute a decision which a reasonable decision-maker could
not reach on the available
evidence. The Court noted, however, that
given the serious nature of the misconduct of which Freddie was
guilty, he was not entitled
to full back-pay and that his
retrospective reinstatement must be subject to a final written
warning operative for a period of
12 months calculated from the date
that Freddie resumed his duties.
[47]
It is against this judgment and order of the Court
a quo
that
the appellant now appeals to this Court.
The
appeal
[48]
The grounds of appeal can be summarised as follows:
1.
The Court
a quo
erred in assuming that Robson is a white man.
There was nothing before the Court indicating that he was white;
there could not
be as he is coloured. The fact that Robson is
coloured would have been apparent to the arbitrator as Robson
testified before him
at the arbitration.
2.
The Court
a quo
erred in not finding that Third Respondent’s
allegations of racism constitute a fair ground for dismissal.
3
The Court
a quo
erred in finding that the arbitrator
“properly” dealt with the remorse shown by Freddie at the
arbitration hearing.
In this regard, the Court
a quo
did not
consider the argument and evidence indicating that Freddie’s
remorse was qualified; shown long after he was dismissed;
shown only
on the advice of others; and appeared to be no more than a tactical
concession for the benefit of the arbitrator.
4
The Court
a quo
erred in its finding that the appellant’s
scale of operations was a reason for holding that the employment
relationship had
not broken down irretrievably, in that Freddie could
be employed in a different department.
5
The Court
a quo
also disregarded the fact that the arbitrator
reinstated Freddie into the position from which he had been
dismissed, while at the
same time the arbitrator acknowledging that
such reinstatement could be “problematic.”
Evaluation
[49]
It is settled law that, in order to pass muster of judicial review
for reasonableness under section
145 of the LRA, an arbitration award
must be one falling within the range of decisions which a reasonable
decision-maker could
have made in the circumstances.
[11]
The Supreme Court of Appeal, in
Herholdt
v Nedbank (Cosatu as amicus curiae),
[12]
restated the
Sidumo
test in the following terms:
‘…
[W]hile
the evidence must necessarily be scrutinised to determine whether the
outcome was reasonable, the reviewing court must always
be alert to
remind itself that it must avoid “judicial overzealousness in
setting aside administrative decisions that do
not coincide with the
judge’s own opinions”. ...A result will only be
unreasonable if it is one that a reasonable arbitrator
could not
reach on all the material that was before the arbitrator. Material
errors of fact as well as the weight and relevance
to be attached to
particular facts, are not in and of themselves sufficient for an
award to be set aside, but are only of any consequence
if their
effect is to render the outcome unreasonable.’
[13]
[Footnote omitted]
[50]
With the advent of our constitutional democracy, the racial attitudes
and practice of discrimination
amongst persons on the basis of race,
colour, culture or creed is something that ought now to belong in the
past. However, it cannot
be denied that it constitutes the saddest
part of the history of this country. Sadly, it remained a common
cause feature in our
society. Significantly, our Courts have
expressed strong views against racism, particularly in the workplace.
In
Crown
Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp and Others
[14]
Zondo JP stated the following:
‘
Within
the context of labour and employment disputes this Court and the
Labour Court will deal with acts of racism very firmly.
This will
show not only this Court’s and the Labour Court’s
absolute rejection of racism but it will also show our
revulsion at
acts of racism in general and acts of racism in the workplace
particularly.  This approach will also contribute
to the fight
for the elimination of racism in general and racism in the workplace
in particular and will help to promote the constitutional
values
which form the foundation of our society.’
[15]
Sustaining Zondo
JP’s approach in the same case (above), Nicholson JA, said the
following:
‘
It
was never contended that the use of the racist epithets in question
should not be visited by the sanction of dismissal. Racism
is a
plague and a cancer in our society which must be rooted out. The use
by workers of racial insults in the workplace is anathema
to sound
industrial relations and a severe and degrading attack on the dignity
of the employee in question. The Judge President
has dealt
comprehensively with this matter in his judgment and I wholeheartedly
endorse everything that he says in this regard.’
[16]
[51]
Not long ago, the Labour Court in
SACWU
and Another v NCP Chlorchem (Pty) Ltd and Others,
[17]
remarked, correctly so in my view, as follows:
‘
To
accuse a person of being racist or to say to a person that he is
displaying a racist attitude is racially offensive. I am equally

satisfied that these words, objectively viewed, can be regarded as
insulting and abusive ….. [It is difficult] to imagine
under
what circumstances an employee who without just cause or a reasonable
basis therefor, and accordingly unjustifiably, accuses
another
employee of being a racist, or that he or she was displaying a racist
attitude, would easily escape dismissal.’
[18]
[52]
The factual basis on which the appellant relied in relation to the
acts of misconduct referred
to in counts 1 and 3 of the misconduct
charge are largely common cause. The fact that Freddie was guilty of
the misconduct charged
was also not in dispute. The issue is whether
his dismissal was an appropriate sanction and, therefore,
substantively fair, given
the particular circumstances of this case.
In my view, the appellant’s case against Freddie in relation to
both counts 1
and 3 is well-founded.
[53]
Concerning the several offensive emails generally
: The
deliberate and sustained refusal or failure by Freddie to carry out a
lawful and reasonable instruction given to him by Robson,
to submit a
report in terms of the required format, rendered him guilty of
insubordination. This was a public display of insubordination
in that
Freddie always sought to ensure that every such offensive or racist
e-mail addressed to Robson would be copied for the
information of
other people, such as Appels, Hollis-Turner and Venter. Indeed, his
conduct constituted gross insubordination. A
reasonable portion of
this appeal record is virtually filled or littered with Freddie’s
offensive and abusive e-mails, mostly
directed at Robson.
[54]
Concerning
the Verwoerd racist slur e-mail
:
The former South African Prime Minister Dr Hendrik Frederick Verwoerd
is notoriously known, from the perspective of the Black
majority
[19]
in this country, as the architect of apartheid. It is also common
knowledge that during the apartheid era, the willy-nilly use
of a
variety of offensive racial slurs by certain racist white
supremacists against Black people (whether it be African, Coloured
or
Indian) in this country was the order of the day; and this was done
without impunity. Some of these racial slurs were within
public
knowledge in the workplace and I do not intend to list them here.
They would better slide into oblivion as a social taboo.
[55]
However, it seems to me, given the painful and shameful atrocities
perpetrated against the Black
people in this country during the
so-called Verwoerdian period, one should expect to see all
right-minded and peace-loving people
not to dare to be even perceived
as associating themselves with anything to do with Verwoerd and his
lieutenants, as well as his
similarly-minded successors. Therefore,
for Freddie to describe Robson, without any justifiable cause, as
being “
even
[worse] than Verwoerd”
was an offensive racial insult, absolutely unacceptable for any
employee to use against any other employee in the workplace,
irrespective
of whether the accuser is white or black. Besides, it
ought to be recalled that the use of racist language against a person
or
class of persons also constitutes hate speech and is prohibited
and outlawed under the Constitution and the law.
[20]
[56]
In the present instance, there was not the slightest shred of
evidence that Robson exhibited a racist
attitude toward Freddie or
did anything to Freddie which could justifiably be described as
racist. In fact, the opposite conduct
on the part of Robson was
evident. There was unchallenged evidence that Robson was empathetic
toward Freddie for not having been
appropriately translated in his
rank or designation. This was not the attitude of a racist person.
Further, in Freddie’s
e-mails, it appears as if he was dealing
with a white man whereas Robson was in fact a Coloured man. It is
common knowledge that
Coloured people were also oppressed under
apartheid, albeit to a lesser degree than African people.
Significantly, Venter was the
only white man in the Public
Participation Unit, headed by Robson, who was coloured. In my
consideration of the matter, I am unable
to justify the basis on
which an employee who conducts himself/herself toward his/her
employer in the manner that Freddie did here
can escape dismissal.
[57]
The aggravating features of this case far outweighed whatever
mitigating factors in favour of
Freddie. For instance, it has always
been said that where the insubordination was gross, to the extent
that it was persistent,
deliberate and public, a sanction of
dismissal would normally be justified. In
Slagment
(Pty) Ltd v Building Construction & Allied Workers Union and
Others,
[21]
two employees had persistently refused, without just cause, to carry
out lawful instructions given to them by their newly appointed

manager under whose supervision they were placed. Before holding that
the employees’ dismissals were “not substantively
unfair”
but that they were “fully justified”, the Appellate
Division (per Nicholas AJA) remarked as follows:
‘
The
employees had been guilty of sustained disobedience. They had
deliberately set themselves on a collision course with management.

They were insubordinate and insulting. Their conduct was such as to
render a continuance of relationship of employer and employee

impossible.’
[22]
[58]
Indeed, even the fact of long service in employment does not always
spare an employee, who committed
a gross misconduct, from dismissal.
This Court, in
Toyota
SA Motors (Pty) Ltd v Radebe and Others,
[23]
stated the following:
‘
...Although
a long period of service of an employee will usually be a mitigating
factor where such employee is guilty of misconduct,
the point must be
made that there are certain acts of misconduct which are of such a
serious nature that no length of service can
save an employee who is
guilty of them from dismissal. To my mind one such clear act of
misconduct is gross dishonesty…’
[24]
[59]
It was argued on behalf of Freddie that he showed remorse for his
misconduct. I do not believe so.
The facts of the case do not bear
testimony thereto. It is significant to note that even after his
dismissal, he still wrote offensive
e-mails about Robson. In any
event, any remorse, genuine or otherwise, is only a factor to be
considered together with other factors
on sanction; and has never
been decisive in terms of saving an employee, who is guilty of gross
misconduct, from dismissal.
[25]
[60]
In
Mutual
Construction Company Tvl (Pty) Ltd v Ntombela NO
and
Others
,
[26]
this Court said the following:
‘…
It
was also significant that the third respondent elected not to own up
to his misdemeanour. In other words, he showed a complete
lack of
remorse or contrition for what he did. Instead, he attempted to shift
the blame to the site manager whom the third respondent
apparently
induced to signing the falsified time sheet. He had only 2
½
ye
ars
of service with the appellant. Even if he had a much longer service
that would not (and should not) have spared him in the circumstances

of this case
.’
[27]
[61]
Accordingly, the arbitrator’s award, to the extent that it
found Freddie’s dismissal to
be substantively unfair, is not a
decision which a reasonable decision-maker could have made, in light
of the evidentiary material
presented to the arbitrator. The award
therefore falls to be reviewed and set aside. For this reason, there
is no basis on which
the judgment and order of the Court
a quo
can stand. The appeal must succeed.
[62]
In the result, the following order is made:
1.
The appeal succeeds with no order as to costs.
2.
The order of the Court
a quo
is set aside and replaced with
the following order:
“
1.
The review application is granted with no order as to costs.
2.
The arbitration award is reviewed and set aside and substituted with
the order that the dismissal of the applicant (Freddie)
was
substantively fair.”
Ndlovu
JA
Tlaletsi
DJP and Davis JA concur in the judgment of Ndlovu JA.
APPEARANCES:
FOR THE
APPELLANT: Advocate C Bosch
Instructed By
Brandon Conradie Halton Cheadle
FOR THE
RESPONDENTS: Mr Brandon Guy
Instructed
by Guy & Associates
[1]
Record,
vol 4 at 288.
[2]
Record,
vol 4 at 289.
[3]
Record,
vol 4 at 300.
[4]
Record,
vol 4 at 294.
[5]
Record,
vol 4 at 293.
[6]
Record, vol 4 at 296.
Based
on the subsequent prompt response to this email by Freddie (on
17/3/11), it is clear that this Hollis-Turner’s email
was also
sent on 17/3/11 before 01:32 pm).
[7]
Record,
vol 4 at 296.
[8]
Record,
vol 4 at 300.
[9]
Record,
vol 4 at 300.
[10]
Act
66 of 1995.
[11]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405 (CC) at para 110 (
Sidumo
).
[12]
2013
(6) SA 224 (SCA).
[13]
At
paras 13 and 25.
[14]
[2002]
6 BLLR 493 (LAC).
[15]
At
para 38.
[16]
At
para 63.
[17]
(2007) 28 ILJ 1308 (LC) at para 31;
[2007]
JOL 19526 (LC)
[18]
At
paras 12 and31.
[19]
The
word “Black” is used in the wider context as to include
Coloureds and Indians.
[20]
Section
16(2)(c) of the Constitution of the Republic of South Africa, 1996
.
See
also
section 10
of the
Promotion of Equality and Prevention of
Unfair Discrimination Act 4 of 2000
against hate speech.
[21]
(1994) 15 ILJ 979 (A).
[22]
At 989H-I.
[23]
[2000] 3BLLR 243 (LAC).
[24]
At
para 15.
[25]
Absa
Bank Limited v Naidu and Others
[2015] 1 BLLR 1
(LAC); (2015) 36 ILJ 602 (LAC).
[26]
[2010]
5 BLLR 513
(LAC).
[27]
At para 37.