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[2016] ZALAC 61
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Msunduzi Municipality v Hoskins (DA14/15) [2016] ZALAC 61; [2017] 2 BLLR 124 (LAC) ; (2017) 38 ILJ 582 (LAC) (2 September 2016)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Reportable
Case
no: DA14/15
In the matter between:
MSUNDUZI
MUNICIPALITY
Appellant
and
JAMES STEPHEN KRUGER
HOSKINS
Respondent
Heard:
12 May 2016
Delivered:
2 September 2016
Summary: Review of
arbitration award – sanction of dismissal - employee dismissed
for gross insubordination for defying municipal
manager’s
instruction to stop representing fellow employees – employee
not heeding to instruction and putting municipal
manager on terms to
dare taking any action – arbitrator finding that
employee’s conduct amounting to challenging
the authority of
the municipal manager- employee not showing remorse - and dismissal
fair – Labour Court’s finding
that dismissal harsh set
aside – commissioner’s award falling within band of
reasonable outcomes – appeal upheld.
Coram: Tlaletsi AJP,
Ndlovu and Sutherland JJA
JUDGMENT
TLALETSI AJP
[1]
This
is an appeal against the judgment of the Labour Court (Whitcher J)
dated 04 March 2015 in which she reviewed and set aside
an
arbitration award made in the South African Local Government
Bargaining Council (SALGBC) and substituted the award with an order
that the dismissal of the respondent by the appellant was unfair on
the basis that the sanction of dismissal was inappropriate.
The
Labour Court substituted the dismissal award with an order
reinstating the respondent to his employment retrospectively
but
limited to a period of six months. In addition, the court
a
quo
ordered that the respondent be issued with a final written warning.
[2]
The
appeal is with leave of the court
a
quo
.
The appellant also seeks condonation for the late filing of the
notice of appeal, extension of time to file the record and the
reinstatement of the appeal which is deemed to have been withdrawn by
the appellant because of non-compliance with Rule 5 (17).
[1]
The respondent did not file papers in opposition to the appellant’s
condonation application. However, at the hearing of the
matter, his
counsel submitted that the application is opposed on the basis that
the appellant has failed, on its papers, to make
out a case that
would entitle it to the condonation for the late filing of the notice
of appeal as well as the reinstatement of
the appeal.
[3]
The
notice of appeal should have been filed within 15 days from 22 April
2015, being the day on which leave to appeal was granted.
The notice
was however filed on 05 August 2015. The explanation offered by the
appellant for the failure to serve and file the
notice of appeal on
time is contained in the founding affidavit deposed to by its
attorney of record. The explanation is simply
that after the
application for leave to appeal was filed and the respondent having
filed his opposing papers, they awaited the
ruling of the Labour
Court on the application. On 31 July 2015 whilst the appellant’s
attorney was in court on other matters
he was asked by the
respondent’s counsel who was on brief in the court
a
quo,
about progress in the appeal process. He responded that he was
awaiting the ruling of the court
a
quo
.
Counsel advised him that he had learned that leave to appeal had been
granted already. He attended at the Registrar’s office
and
obtained a copy of the ruling as well as a copy of a fax transmission
confirmation report showing that the ruling was faxed
to his office.
He made inquiries at his office and no one, including the lady who is
tasked to receive and distribute faxes, acknowledged
receipt of the
ruling. She was adamant that had she seen the faxed document, she
would have brought it to the attention of the
attorney handling the
matter. She further confirmed that no one phoned her to confirm
receipt of the document as is the general
practice with service by
means of fax.
[4]
It
was then that the appellant’s attorneys rushed to file the
notice of appeal. At the time when the appellant’s attorney
became aware that leave to appeal had been granted, the sixty day
period within which to file the record of the appeal, had already
expired; and the appeal deemed withdrawn by operation of law. It was
therefore necessary for the appellant to apply to the Judge
President
for the reinstatement of the appeal.
[5]
The
principles relating to applications of this nature are now trite and
there is no reason to restate them in this judgment
[2]
.
The delay in filling the notice of appeal is substantial. However,
the explanation for the delay is not controverted and sounds
reasonable. I shall now proceed to consider the merits of the appeal
which play an important role in considering whether condonation
for
the late filing of the notice of appeal and reinstatement of the
appeal should be allowed.
[6]
The
facts material to the determination of the appeal are largely common
cause and are set out hereunder. The appellant employed
the
respondent as Human Resources (HR) Support Service Manager. In his
capacity as HR official, the respondent advised other managers
on
employment related issues including guidelines on disciplinary
matters. He was a member of the management team by virtue of
his
position and role at the appellant.
[7]
He
was not a member of a trade union, but had been a member of various
trade unions as he moved up the ranks in the municipality.
In his
capacity as a member of the trade unions, he advised and represented
co-employees who faced disciplinary charges at the
municipality.
[8]
The
respondent continued to advise and represent co-employees in matters
against the appellant when he was no longer a member of
a trade union
but part of the management team. This practice became a source of
concern for the management of the appellant as
it was viewed as a
conflict of interest between his responsibilities as a manager and
his role in representing other employees.
Some of the managers felt
uncomfortable to discuss issues openly in his presence in meetings
fearing that whatever they say will
be used against them by the
respondent.
[9]
The
newly appointed Municipal Manager, Mr Nkosi wrote a letter dated 22
May 2012 instructing the respondent to cease representing
fellow
employees with immediate effect. The letter stated
inter
alia
,
the following:
‘
As a
Manager; Human Resources and Support Services, one of your duties is
to advise and guide Strategic Executive Managers and Process
Managers
on the interpretation, implementation, and compliance with all human
resource and labour legislation, collective agreements
and Council
procedures, practices and guidelines. This would include advice on
disciplinary matters as well.
There is a clear conflict of interest,
if you represent employees facing disciplinary charges against
Council and also performing
same duties. You are also required as one
of your duties to attend regular meetings with SEM and Process
Managers to consider labour
issues and to advise them accordingly.
It would be impossible to perform your
duties in this regard as issues involving same employees are
discussed in these meetings.
I have been advised by your managers
that they find it very difficult to discuss disciplinary matters
during meetings in your presence.
I am mindful of the disciplinary code
which makes reference to ‘a fellow employee’. However,
your position is different
in that you are not an ordinary employee
but one who is supposed to perform management functions and act in
the best interest of
Council.
Further to the above, you are not a
shop steward or a trade union official and you are requested to
recuse yourself on all matters
currently handled by you against
Council with immediate effect. You are also requested to advise the
employees concerned accordingly.
Should you fail to comply with my
instruction, I will have no alternative but to take further steps. I
trust that this will not
be necessary’.
In response to Mr Nkosi’s
letter, the respondent issued a letter dated 30 May 2012, which reads
as follows:
‘…
RE REPRESENTATION IN DISCIPLINARY
ENQUIRIES
Your informant has done well and has
correctly informed you that I represent employees. Will you forward
to me the approved JD which
contains the relevant duties you
mentioned in paragraph 2. If it exists, immediately to legitimize
your instructions as a bona
fide RULE.
If you understand your Employee
Relations sub-unit and the workflow, there is no conflict.
Clearly you are misinformed. Again in
paragraph 5, your faceless, spineless, nameless advisors/managers
need to correctly advise
you that this is the sixth attempt to
silence me.
From Mr Rob Haswell, to Mr Kevin
Perumal, Mr Johan Mettler, Mr Sbu Sithole and the Acting Municipal
Manager- Maseko, with zero success.
In 2011, Mr Maseko sought a legal
opinion from Mr Kas Thaver. Mrs Faith Ndlovu also sought policy
directions from Johan Greyveling
of SALGA. I am aware that, in both
instances, the advice received gave legitimacy [to] me or any other
manager of same status,
to continue my/our representation/advice to
the affected employees.
You are now the 6
th
person
to make an attempt to address the short fallings/failure of the
Msunduzi Municipality to prepare winnable hearings against
the
employees who are currently facing disciplinary action, taken by the
Msunduzi.
The issue you wish to address is not
about the guilt but now the removal of fair representation.
You understand the line manager
control over my post and clearly indemnify a weakness there, and yet
you choose to ignore a procedure
and deal with this on a personal
level.
Well done!
…
…
If this is how you seek to operate
through intimidation, victimization, and threats to take further
steps against me, please proceed
with your threat to take further
steps in this matter, if you dare.
You are an employee of Msunduzi
Municipality, and so am I.
NB: An apology is anticipated in this
matter.
[Yours] in the struggle
James Hoskins
CC: DMM: CORPORATE SERVICES
(Acting)
CC: LEGAL SERVICES
CC: PERSONAL MANAGER
SAMWU’
[10]
The
letter was placed on a public notice board and was shown to a number
of employees before it was delivered to the Municipal Manager.
The
respondent continued to represent employees in the disciplinary
inquiries. The Municipal Manager after taking legal advice
delivered
a reply on 16 July 2012. In the letter, the Municipal Manager noted
his great concern at the respondent’s aggressive,
disobedient
and disrespectful approach to the instruction given to him and
further drew his attention to about five disciplinary
hearings and
arbitrations at SALGBC handled by the respondent after an instruction
to stop doing so. The letter further explained
to the respondent the
problems the municipality had with his actions and concluded thus:
‘
I request
that you provide me with a complete schedule of all labour matters in
which you are representing your fellow employees
and further indicate
as to when you have recused yourself from the matters and whom the
new appointee representative is. This must
be delivered to my office
within 48 hours of receipt of this letter.’
[11]
It
is common cause that the respondent did not provide a written
response but continued to represent a fellow employee at a
disciplinary
inquiry. Subsequent to this letter and in view of its
stance on the matter, the appellant charged the employee with gross
insubordination,
gross insolence and gross misconduct. All in all
there were eight charges relating to gross insubordination by
challenging the
authority of the Municipal Manager by refusing to
comply with his instruction to recuse himself from and ceasing to
represent fellow
employees in disciplinary proceedings instituted by
the municipality; three counts of gross misconduct for failing to act
in good
faith, not acting in the best interest of the municipality
and bringing the municipality into disrepute and one charge of gross
insolence by being rude, disrespectful, sarcastic, abusive, insulting
and provocative to the Municipal Manager. He was found guilty
of all
the charges and a sanction of dismissal was imposed.
[12]
Aggrieved
by his dismissal, the respondent referred a dispute of unfair
dismissal to the bargaining council where it was ultimately
arbitrated by an arbitrator acting under the auspices of the council.
At the arbitration, the appellant tendered the evidence of
the
Municipal Manager; Mr GM Buitendach (the HR support manager); Mrs
Faith Ndlovu (the process manager HRM), Mrs Xolile
Hulane
(staff officer and acting personal manager HR) and Mrs Zodwa Khumalo
the HR support services manager, a position similar
to the one
occupied by the respondent. The respondent testified and tendered the
evidence of Ms Poddywell Baxter who was the personal
assistant to the
Municipal Manager at the time. In light of the fact that the appeal
is limited to the sanction imposed by the
Labour Court in the review
application and the fact that the findings of the arbitrator
regarding the guilt of the appellant of
10 counts of misconduct were
not interfered with by the Labour Court, it shall not be necessary to
traverse the entire evidence
tendered at the arbitration proceedings.
[13]
The
Municipal Manager testified,
inter
alia
,
that he was appointed to the appellant on 3 January 2012. When he
joined, there were hostility and several strikes taking place.
He met
the respondent for the first time when they discussed strategies for
dealing with illegal strikes. He soon thereafter learned
that the
respondent was to represent employees in a disciplinary inquiry. He
found this conduct improper as they have held management
discussions
about discipline and strikes. He testified that the letter from the
respondent was a shock to him, displaying insolence
and anger. It
suggested that the instruction he gave was illegitimate as the
respondent specifically requested proof to legitimise
the
instruction. The words “faceless, spineless and nameless”
were insults hurled at his fellow colleagues. The words
“if you
dare” were unacceptable and rude, whereas his letter was not
intended to victimise but intended to merely warn
him about his
conduct, as he was playing a role that created a conflict of
interest. He mentioned that the respondent placed himself
at the same
level as his by stating that he is also an employee as him. He denied
that he had an ‘agenda’ to get rid
of the respondent and
on the contrary, he even tried to settle the matter at the
disciplinary hearing. His attempts were in vain.
[14]
The
Municipal Manager testified further that the respondent, by virtue of
his position had access to confidential information and
strategies
for employment relationships. The employment relationship was
destroyed and if the respondent was to return to the appellant,
it
would undermine the entire spirit of the organisation. His actions
were at war with the administration and showed no remorse.
His own
peers felt a level of distrust and dishonesty on his part and were
unable to work with him. The Municipal Manager testified
further that
the respondent at the disciplinary hearing continued to be abusive
and rude and at some stage mentioned that “
we
will see how long you last”
referring to the Municipal Manager lasting in his position. He also
believes that the respondent was part of the attempts to have
him
removed as the Municipal Manager. He confirmed that it would be
impossible to work with the respondent. He made every effort
to
accommodate the respondent even after the commencement of the
disciplinary hearing, but he refused to correct his conduct.
[15]
Buitendach,
Ndlovu, Hulane, and Khumalo had sight of the letter written by the
respondent. Buitendach, when shown the letter by
the respondent
warned him that he would get into trouble. Respondent told him that
the letter was sent. Hulane who received the
letter from the
respondent for filing in his personal file said to him after reading
the letter that: “
James
are you serious
”.
Khumalo when shown the letter by the respondent in his office was
shocked. They mentioned that their responsibilities which
were
similar to those of the respondent excluded them from representing
employees at disciplinary inquiries.
[16]
The
respondent testified, among others, that he was not grossly
insubordinate because the Constitution of the Republic of South
Africa, 1996, the Labour Relations Act 66 of 1995 (LRA) and the
collective agreement guaranteed the employees’ right to be
represented; that the instruction of the Municipal Manager was
unlawful and in blatant violation of the employees’ rights;
that there was no conflict of interest by representing the employees
as he only assisted in cases that were not in his unit; that
his
impeccable record caused the Municipal Manager to employ two outside
attorneys to preside at the hearings and that it is these
attorneys
who prompted the Municipal Manager to write the letter that
ultimately led to his removal; that the Municipal Manager’s
letter was in the form of a threat and caused gross injustice to him.
He testified that his “forward approach” caused
his
relationship with the Municipal Manager to be unfavourable. Baxter’s
evidence was tendered to support the respondent’s
version that
when he delivered the letter he did not find the Municipal Manager
and that she read the letter and advised the appellant
that the
letter was not professional, very personal and had to rewrite it. He
heeded her advice and modified the letter which he
submitted. This
version was correctly rejected by the arbitrator and his finding is
not being properly challenged since there is
no cross-appeal.
[17]
The
arbitrator rendered a comprehensive award running into 37 pages. He
dealt with the evidence tendered and made some credibility
findings.
He found the respondent not guilty of two charges and guilty of the
rest. The ones on which he was acquitted were the
charge accusing the
respondent of not acting in good faith or in a diligent manner. The
other charge related to bringing the municipality
into disrepute when
it was found by the bargaining council that he could not represent an
employee as he was not a member of a
trade union. It is interesting
to note that the respondent subsequently joined the trade union and
was allowed to represent the
employee in those proceedings.
[18]
Regarding
the sanction, I can do no better than to quote the reasoning of the
arbitrator in its entirety. He addressed the issue
as follows:
‘
Sanction
[78]
Mr Nkosi stated that the applicant’s conduct after his
dismissal was almost in the form
of a threat. This was demonstrative
of the fact that the applicant was bitter and hostile towards the
municipal manager. It was
clear that the employment relationship
between the municipal manager and the Applicant was destroyed. Nkosi
categorically confirmed
that if the Applicant returned to work it
would undermine the ethics and harmony of the workplace. I find that
to have an employee
that is somewhat disruptive and where there is no
harmonious relationship, it impacts on service delivery and creates a
breakdown
in the administration and functionality of the
municipality. There were a number of opportunities given to the
Applicant to correct
his attitude and behaviour. Even after the
commencement of the disciplinary hearing there were efforts of
settlement which was
rejected by the Applicant. The Respondent
expected the Applicant to desist representing employees which he
outright refused.
[79]
In terms of the collective agreement an employee may be dismissed on
the first occasion for gross
insubordination. In this instance I find
that the dismissal was fair and in terms of the policy. There was no
need for progressive
discipline as the insubordination was a serious
transgression. I also have taken cognizance of Nkosi’s evidence
that there
had been a complete breakdown of the employment relation
and it was clear that he could no longer work with the Applicant. To
place
an employee in such an enterprise will merely create further
hurdles as the relationship was destroyed.
[80]
In this matter Nkosi went into grave detail outlining how the
relationship had broken down. Furthermore
the Applicant did not
appear remorseful but rather defensive. Dismissal for insolence and
insubordination is justifiable if the
employee breaches his duty to
show respect. If the insolence is wilful and serious it would amount
to gross insubordination. I
accordingly find that the sanction of
dismissal was justified. The Applicants’ claim is dismissed
with him to pay the wasted
costs of arbitration. I will not grant and
order of legal costs as I do not find that the referral of the matter
was capricious
or frivolous’
.
[19]
The
arbitrator dismissed the respondent’s application and ordered
him to pay the wasted costs of the arbitration determined
in the
amount of R11 500-00.
[20]
The
respondent applied for the review of the arbitration award. He
challenged the arbitrator’s findings that he was guilty
of the
specified charges, the finding that his dismissal was both
procedurally and substantively fair, the sanction of dismissal
and
the award of costs of the arbitration against him. He contended that
the decision reached by the arbitrator was a decision
that a
reasonable decision-maker could not reach.
[21]
The
Labour Court confirmed the arbitrator’s findings as to the
lawfulness and reasonableness of the instruction; that it was
not
intended to provoke the respondent and was not disrespectful. The
learned Judge found that the respondent was guilty and that
he
“committed a serious offence which highly impinged on his duty
to be respectful to his superior, the head of his employer
institution”.
[22]
The
Labour Court, however, concluded thus:
‘
However,
even on the strict review test, I am of the view that if the
arbitrator had properly applied his mind to the material before
him
and truly thought about it, he would have found that the sanction of
dismissal was harsh in the circumstances of this case.
These
circumstances include the fact that the applicant was over 50 years
old, there were no evidence of past similar misconduct,
the applicant
had been in the employ of the respondent for over 25 years (basically
all of his life) and his age militated against
prospects of future
employment. Moreover there was no evidence that the respondent had
lead evidence that reinstatement was not
practical. The applicant
further did not work directly under the manager- in other words there
was no evidence that he works closely
with him and receives his daily
instructions from the manager. In these circumstances I believe that
a reasonable arbitrator would
have found that such an employee
deserves a second chance, albeit with a serious sanction imposed
against him, such as a final
written warning or punitive suspension.
In determining the extent of the retrospective part of the
reinstatement order, I have
taken into consideration that
considerable time has passed but the reasons for this is the fault of
the applicant. If he had pleaded
guilty, apologised and not persisted
with consuming hearings, this case may not have arisen.
In all these
circumstances, I find that the sanction of dismissal was not
reasonable based on the material before the arbitrator
and I thus
substitute the award with a reinstatement order. However, for the
reasons set out above, I order that it be retrospective
only for (6)
months
.’
[23]
The
issue to be considered on appeal is whether the Labour Court
misdirected itself in finding that the sanction of dismissal in
the
circumstances of this case was a decision that a reasonable
arbitrator could not reach. Mr Pillemer SC, who appeared on behalf
of
the appellant contended that the Labour Court erred in its approach
as to the applicable test on review. The Labour Court, it
was
contended, merely considered whether the sanction imposed was harsh
as opposed to considering whether the arbitrator (in finding
that the
dismissal was fair on the basis of a value judgment of the arbitrator
based on the evidence before her ) had come to a
decision which a
reasonable arbitrator could have come.
[24]
Mr
Moodley, who appeared on behalf of the respondent, submitted,
somewhat unusually, that despite there being no cross-appeal, this
Court should nevertheless reassess the Labour Court’s finding
that the instruction of the Municipal Manager was lawful and
reasonable. He further urged us to assess the fact that the
arbitrator failed to take into account Schedule 8 of the LRA as she
was required to do by law and that this failure led to the arbitrator
reaching a decision which a reasonable decision-maker could
not
reach. Counsel further supported the reasoning of the Labour Court
that the dismissal was harsh given the respondent’s
previous
disciplinary record, his age, his prospects of future employment, the
fact that he would rarely be required to deal directly
with the
Municipal Manager who is three management levels above him, and the
fact that his insolence took the form of a single
rude letter.
[25]
It
is not open to this Court to reconsider the correctness or otherwise
of the finding by the court
a
quo
that the instruction given by the Municipal Manager were reasonable
and lawful in the absence of a cross-appeal. There is no explanation
why a cross-appeal was not noted especially that counsel who appeared
on behalf of the respondent in this Court is the same counsel
who
appeared for him at the arbitration proceedings and in the court
quo
.
Be that as it may, there is nothing unlawful or unreasonable about
the Municipal Manager’s instruction to the respondent,
who as
part of management, is not expected to represent employees against
disciplinary actions taken by management. The reasons
why the conduct
of the respondent was found to be unacceptable were conveyed to the
respondent and are in my view valid. The respondent
who is not even a
union representative or official has no right to be a representative.
It is, after all, the employee who is charged
with misconduct that
can legitimately complain that he/she is denied representation by a
representative of his/her choice. That
the respondent was bent on
acting against his employer is made clear by
inter
alia
,
his evidence that his record against his employer was impeccable such
that external attorneys had to be appointed by the municipality
to
match him. Instead of acknowledging the wrongfulness of his conduct,
he is boastful about his “impeccable” record
of winning
cases against his employer and co-managers.
[26]
It
cannot be disputed that the respondent was found guilty of serious
instances of insubordination and insolence. His insubordination
was a
direct challenge to the authority of the Municipal Manager. He
without any doubt intended to seriously undermine the authority
of
the Municipal Manager and in so doing humiliated him. By posting the
letter on the notice board, he wanted his feelings about
the
Municipal Manager known by other employees and any other person who
reads the letter. The publication, also, has a potential
to influence
the reader not to respect the head of the institution. To further
aggravate the situation, he distributed copies of
the letter to other
employees of the municipality and a union which he was not even a
member of. This act could only have been
intended to make the
Municipal Manager lose the respect of his subordinates and the trade
union.
[27]
The
contents of the letter are in my view a reflection of one of the most
classical examples of gross disobedience that one can
find. The
respondent made it clear that he was not going to obey the
instruction and even dared the Municipal Manager to take further
steps he had warned would be taken should he continue with his
conduct. He warns him that he is due to fail against him like his
predecessors he named in the letter. He further refers to his fellow
employees as faceless, spineless and nameless advisors.
[28]
In
line with his resolve, the respondent continued to represent the
employees in blatant disregard of the instruction. When the
Municipal
Manager issued a further instruction, he chose not to respond to the
letter and ignored its contents by continuing to
represent the
employees. The respondent had an opportunity to reflect on his
decision to refuse to obey the instruction; and on
the contents of
his letter to the Municipal Manager. He squandered the opportunity to
repent when warned by the Municipal Manager;
and to heed the advice
by his colleagues. His further conduct towards the Municipal Manager
at the arbitration showed a lack of
remorse. For his counsel to now
submit from the bar that the respondent is remorseful, is nothing
else but to regret what he has
done because of the situation he now
finds himself in. He dared the Municipal Manager and he took up the
dare. Put differently,
the respondent got what he called for.
[29]
In
my view, the arbitrator correctly applied his mind to all the
material that was placed before him. He took into account the
seriousness of the insubordination, the respondent’s blatant
well-publicised challenge to the authority of the Municipal Manager,
that he showed no remorse when he appeared at the arbitration and
found the dismissal to be an appropriate sanction. The fact that
the
arbitrator did not make specific reference to Schedule 8 of the LRA
does not detract from the fact that factors relevant to
sanction were
in this matter taken into account. The arbitrator considered
progressive discipline and found that given,
inter
alia
,
the seriousness of the transgression, lack of remorse and instead
being defensive, the complete breakdown in the employment
relationship
between the respondent and the Municipal Manager, as
well as the responsibility of the municipality to deliver services,
it would
not be practicable to restore the employment relationship. I
also find no merit in the submission made on behalf of the appellant
that the respondent was three management levels below the Municipal
Manager and as such contact between the two in the course of
the
daily operations of the municipality would be either non-existent or
minimal Contact between the two will not be avoidable
because the
respondent is part of the management team led by the Municipal
Manager. Furthermore, since it is the respondent who
published his
gross insubordination and insolence to be known by all and sundry
towards him, it would send a wrong message to the
entire staff to
hide the respondent from the Municipal Manager or create a no-go zone
or an enclave for him in order to keep the
respondent in employment.
[30]
The
proper test to be applied in a review of an arbitration award on
sanction is whether the decision of the arbitrator about the
fairness
of the sanction imposed by the employer is a decision that a
reasonable arbitrator could not reach
[3]
.
The simple answer to this question in the circumstances of this case
is that the decision is reasonable. The decision is indeed
justified
by the material placed on record. It was therefore not open to the
court
a
quo
to consider whether the sanction was harsh and impose a sanction that
in its opinion is not harsh. It is the call of the arbitrator
and not
that of the Labour Court to assess the fairness of the sanction of
the employer. The court
a
quo
further misdirected itself by finding that the arbitrator should have
found that the respondent deserved a second chance without
advancing
any reason why a second chance would be appropriate in the
circumstances. As pointed out already, the respondent was
given an
opportunity to reflect on his conduct. He instead proceeded to do
precisely what he was warned not to do. He would have
continued to do
so even if given a further chance as he was not open to any
persuasion. The arbitrator, in my view, complied with
what was
required of him to do, in order to meet the standard set by the
Constitutional Court, namely:
‘
In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or she
will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee’s
challenge to the
dismissal. There are other factors that will require consideration.
For example, the harm caused by the employee’s
conduct, whether
additional training and instruction may result in the employee not
repeating the misconduct, the effect of dismissal
on the employee and
his or her long-service record. This is not an exhaustive list.
To sum up. In
terms of the LRA, a commissioner has to determine whether a dismissal
is fair or not. A commissioner is not given
the power to consider
afresh what he or she would do, but simply to decide whether what the
employer did was fair. In arriving
at a decision a commissioner is
not required to defer to the decision of the employer. What is
required is that he or she must
consider all relevant
circumstances
’
[4]
.
[31]
For
the above reasons, there was no reason to interfere with the award.
The appeal should succeed and the order of the Labour Court
falls to
be set aside. It would be in accordance with the requirements of the
law and fairness that no order as to costs should
be made. The appeal
was initially set down for hearing on Tuesday 10 May 2016. On this
day, there was no appearance by either the
appellant’s official
or its legal representatives. Several enquiries had to be made for
the whereabouts of the appellant’s
attorney and counsel. The
matter had to be postponed to Thursday 12 May 2016 to accommodate the
appellant. The request for the
postponement was conveyed to us by the
appellant’s attorney in chambers. He only came to this Court as
a result of a telephone
call by the respondent’s legal
representative. As he was not in a position to argue the appeal, he
requested that the matter
be postponed and tendered wasted costs for
that day. It is therefore only fair that wasted costs for that day be
borne by the appellant.
[32]
In
the result the following order is made:
a)
The application for condonation for the late filing of the notice of
appeal as well
as the record of the appeal is granted and the appeal
is reinstated.
b)
The appeal is upheld and the order of the Labour Court is set aside
and replaced with
the following:
“
The
application for review is dismissed with no order as to costs.”
c
)
There is no order as to
costs on appeal save for the wasted costs of 10 May 2016 which
are to
be paid by the appellant.
_________________
Tlaletsi
AJP
Ndlovu
et
Sutherland JJA concur in the judgment of Tlaletsi AJP.
APPEARANCES:
FOR THE APPELLANT:
Mr M Pillemer SC
Instructed
by Mdledle Incorporated.
FOR
THE RESPONDENT:
Mr S Moodley
Instructed by Premrajh
and Associates.
[1]
Rules for
Regulating the Conduct of the Proceedings of the Labour Appeal
Court.
[2]
See
Kerradam
Properties (Pty) Ltd t/a Cabanga Conference Centre v Matthee
(JA 72/2010)
[2012] ZALAC 19
(22 June 2012);
Sasol
Infrachem v Sefafe and Others
(JA58/12)
[2014] ZALAC 54
;
[2015] 2 BLLR 115
(LAC); (2015) 36 ILJ
655 (LAC) (21 October 2014);
Shaikh
v South African Post Office Ltd and Others
(DA 4/09)
[2013] ZALAC 18
(19 July 2013) at para 25;
MEC
of the Western Cape Provincial Government Health Department v
Coetzee and Others
(CA3/2011)
[2015] ZALAC 35
;
[2015] 11 BLLR 1108
(LAC) ; (2015) 36
ILJ 3010 (LAC) (24 August 2015);
South
African Post Office Ltd v Commission for Conciliation Mediation and
Arbitration and Others
(JA
56/06)
[2011] ZALAC 16
;
[2012] 1 BLLR 30
(LAC); (2011) 32 ILJ 2442
(LAC) (3 August 2011).
[3]
Sidumo and
Another v Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097
(CC) at para 110.
[4]
Ibid paras 78-79.
Fidelity
Cash Management Service v CCMA and Others
[2008] 3 BLLR 197
(LAC) at paras 94-95.