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[2017] ZALAC 14
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National Union of Metal Workers of South Africa (NUMSA) obo Motloba v Johnson Controls Automotive SA (Pty) Ltd and Others (PA6/15) [2017] ZALAC 14; [2017] 5 BLLR 483 (LAC); (2017) 38 ILJ 1626 (LAC) (3 February 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, PORT ELIZABETH
Not Reportable
Case no: PA 6/15
In the matter between:
NATIONAL UNION OF METAL WORKERS OF
SOUTH
AFRICA (NUMSA) OBO ABRAM MOTLOBA
Appellant
and
JOHNSON CONTROLS AUTOMOTIVE SA
(PTY) LTD
First Respondent
MOTOR INDUSTRY BARGANING
COUNCIL
Second Respondent
RIAAN DE LANGE
Third Respondent
Heard:
15 September 2016
Delivered:
03 February 2017
Summary:
Summary:
The
appellant employee - dismissed on account of misconduct: physical and
verbal assault of the manager; serious disrespect, impudence
and/or
insolence; and/or threatening and/or intimidating behaviour towards
the manager.
The arbitrator-
assessing the misconduct on the basis of the decision of the
Industrial Court in
FAWU v Harvestime Corporation (Pty) Ltd
(1989) 10 ILJ 497 (IC) as authority for the proposition that a shop
steward when he approaches or negotiates with a senior official
or
management does so on virtually an equal level with the official or
management and the ordinary rules applicable to the normal
employer-employee relationship are then somewhat relaxed. The
Arbitrator - finding that the appellant’s dismissal was
procedurally
fair but substantively unfair.
On review and
cross-review to the Labour Court- The Court finding -
that the arbitrator failed to apply his mind to
the evidence and to
assess the credibility and reliability of witnesses, including the
probabilities. Further finding- that the
arbitrator applied the
incorrect “anything goes” approach enunciated in
Harvestime Corporation
. The Court - concluding that the award
was incapable of being sustained and stood to be reviewed and set
aside
On
appeal to the Labour Appeal Court - The Court reaffirming the
principle formulated in the considerable body of authority that
a
shop steward should fearlessly pursue the interest his/her
constituency and ought to be protected against any form of
victimisation
for doing so. However, this was no licence to resort to
defiance and needless confrontation. Assaults and threats thereof
were
not conducive to harmony or to productive negotiation. It was
unacceptable to hold that when one acts in a representative capacity
“anything goes”.
Finding
- that the incident complained of did not arise during the course of
the negotiations or within the context of the collective
bargaining
process. Further finding- that the arbitrator misconceived the nature
of the enquiry he was enjoined to undertake in
holding that the
incident was in relation to an issue of relevance to industrial
relations. Further finding- that reliance by arbitrator
on
Harvestime
Corporation
was plainly wrong and had correctly been found by the Court
a
quo
as amounting to a gross irregularity - the gross irregularities
committed had a distorting effect on the outcome of the arbitration
and vitiated the award.
The decision of the
Labour Court confirmed on appeal.
The appeal dismissed
with costs.
Coram:
Coppin JA, Landman JA, Phatshoane AJA
JUDGMENT
PHATSHOANE AJA
[1]
This is an appeal by the National Union of Metal Workers of South
Africa (NUMSA) or (the union) on behalf of Mr Abram Motloba,
the
appellant, against the whole of the judgment and order of the Labour
Court (Van Niekerk J) dated 01 July 2015 dismissing its
review
application with costs and upholding with costs the cross-review
filed by Johnson Controls Automotive SA (Pty) Ltd, the
first
respondent; setting aside the award issued under Case No: MICT 10138
by Mr Riaan De Lange, the third respondent, under the
auspices of the
Dispute Resolution Centre (DRC), a division of the Motor Industry
Bargaining Council (MIBCO), the second respondent;
and substituting
same with an order that the dismissal of Mr Abram Motloba was
substantively and procedurally fair. The appeal
is with leave of the
Court
a quo
.
[2]
Mr Abram Motloba (Mr Motloba) had been in the service of Johnson
Controls Automotive SA (Pty) Ltd for a period of nine years.
He was a
shop steward at the workplace on an intermittent basis for a period
of four years including on or about 23 June 2010,
when he had a
discussion with the payroll administrators of Johnson Controls and
did not agree with their interpretation of the
MIBCO’s
collective agreement regulating how the employees on night shift were
to be paid for work performed on a public holiday.
Ms Charlene
Bezuidenhout (Ms Bezuidenhout), the regional payroll manager of
Johnson Controls, informed Mr Motloba that the payment
would be
effected according to the management’s understanding of the
agreement. They agreed to disagree on this aspect and
parted on
amicable terms.
[3]
On the next day, 24 June 2010, some unhappiness emerged from a group
of employees who accused Mr Motloba of having agreed with
Johnson
Controls’ interpretation of the collective agreement on the
method of calculating the public holiday payment. The
dissatisfaction
culminated into a two and half minute incident which led to the
disciplinary charges being preferred against Mr
Motloba, formulated
as follows:
3.1
Physical and verbal assault of Ms Charlene Bezuidenhout on Thursday,
24 June 2010; and/or
3.2
Serious disrespect, impudence and/or insolence towards Ms Charlene
Bezuidenhout on Thursday, 24 June
2010; and/or
3.3
Threatening and/or intimidating behaviour towards Ms Charlene
Bezuidenhout on Thursday, 24 June
2010.
[4]
On the basis of the aforesaid charges Mr Motloba was dismissed from
the services of Johnson Controls on 08 July 2010. In explaining
the
mayhem which precipitated the dismissal, Ms Feroda Faith January, a
service centre supervisor, who testified in the case for
Johnson
Controls, says that Ms Bezuidenhout was at the entrance of her office
when the group of employees accompanied by Mr Motloba
accosted her.
Ms January was inside Ms Bezuidenhout’s office when she heard
some noise outside that office and Mr Motloba
loudly and in an
aggressive tone uttering words, directed at Ms Bezuidenhout, to the
following effect: “Don’t lie to
my people that I agreed
to how they would be paid”.
[5]
Ms January says that she tried to intervene and informed Mr Motloba
that the employees were merely told that he was informed
of how they
would be paid. Mr Motloba ignored her and kept his focus on Ms
Bezuidenhout. He was very close to Ms Bezuidenhout “like
in her
face”, approximately 30 cm away and kept repeating that Ms
Bezuidenhout “must not lie to his people”.
She says that
Mr Motloba did not afford Ms Bezuidenhout the opportunity to defend
herself against the accusation.
[6]
During the exchange referred to in the preceding paragraph Ms January
says she saw Mr Motloba’s finger passing her sight
towards Ms
Bezuidenhout’s direction but did not observe where it landed.
She then heard Ms Bezuidenhout’s retort thereafter
to this
effect: “Excuse me.” Ms January went on to say that Mr
Motloba was disrespectful of Bezuidenhout and deeply
enraged. She
intimated that she thought Mr Motloba “was going to hit”
Ms Bezuidenhout. The crowd dispersed after Mr
Martin Naas, the
factory manager, came to the scene and requested that the issue be
resolved elsewhere.
[7]
Later during the day in question, 24 June 2010, Ms Bezuidenhout
reported to Ms January that she was unhappy with how Mr Motloba
spoke
to her and what had transpired. Ms Bezuidenhout went on to tell her
that Mr Motloba “actually touched her”. Ms
January did
not witness when Mr Motloba touched Ms Bezuidenhout. Later during
that day she saw Ms Bezuidenhout crying.
[8]
Ms Erna Scheepers was the HR manager at the time of the incident. On
that eventful day, in her presence, Ms Bezuidenhout explained
to Mr
Shaun Govender, the plant manager, that there had been a concern
regarding the way in which the overtime was paid and that
there had
been an episode wherein Mr Motloba shouted at her. During this
discussion Ms Bezuidenhout did not mention that Mr Motloba
had made
any physical contact with her. However, Ms Scheepers observed that
the incident had upset Ms Bezuidenhout who appeared
nervous but was
not crying.
[9]
Ms Scheepers was tasked to conduct an investigation into the incident
by the Human Resource Director. She interviewed Ms Bezuidenhout
on
the next day, 25 June 2010, and noticed that she was distraught over
the encounter and cried. Ms Bezuidenhout informed her that
as a
result of the episode she forgot to collect her husband from work. Ms
Scheepers says that since the occurrence of the incident
Ms
Bezuidenhout was still visibly hysterical by the mentioning of it.
Johnson Controls viewed the event as a personal attack on
Ms
Bezuidenhout’s integrity which could not be countenanced.
[10]
Ms Bezuidenhout disputed having approached any of the employees of
Johnson Controls to inform them that Mr Motloba agreed with
Johnson
Controls’ interpretation of the collective agreement with
regard to the payment for work performed on the public
holiday. She
intimated that on 24 June 2010, as she entered her office, she heard
Mr Motloba shouting out her name. He hastily
approached her,
accompanied by the group of employees, and said that she must not
“use his name to lie to his people”.
He was aggressive
and enraged. Mr Motloba was very close to her to a point where she
felt very intimidated. He pointed and prodded
her in the chest with
his finger at which point she exclaimed: “Excuse me”. She
remained unwavering throughout the
cross-examination that Mr Motloba
touched her. She perceived the confrontation as a personal attack on
her and said she could not
defend herself as Mr Motloba did not
afford her the opportunity to do so.
[11]
Ms Bezuidenhout intimated that, following the incident, she became
petrified of people entering her personal space. She had
some
sleepless nights over it; dreamt of it, including Mr Motloba being at
her home. She saw Ms Shelly Corrigan, a counselling
psychologist and
Mr Dennis Stigant, a clinical psychologist. She did not attend any
counselling session because she thought that
she could handle the
situation on her own. Mr Motloba never apologised to her.
[12]
Mr Stigant, called as an expert in the case for Johnson Controls,
diagnosed Ms Bezuidenhout, at the time of his assessment
in January
2011, as suffering from Post-Traumatic Stress Disorder (PTSD), the
probable cause of which was the altercation between
Mr Motloba and Ms
Bezuidenhout. He sets out in his report Ms Bezuidenhout’s
account of the events of 24 June 2010 and how
this impacted on her
physical and mental well-being. His findings indicated that Ms
Bezuidenhout experienced the encounter as severely
traumatic and
still experienced the sequelae thereof in a manner that rendered her
dysfunctional when confronted with thoughts
or subsequent events that
serve as reminders of the episode. He opined that Ms Bezuidenhout
will have difficulty working in close
circumstances with Mr Motloba
in the future because if the condition is not treated it becomes
chronic which can persist for as
long as 30 years.
[13]
Mr Stigant conceded that an exposure to a severe traumatic experience
may not in all cases result in a person suffering from
any
consequences. He further acknowledged that an exposure to a “mundane
event” may in other cases result in a person
suffering from
PTSD.
[14]
Mr Motloba says that on 24 June 2010 he received a telephone call
from Mr Xolani Mzeline, one of the shop stewards, requesting
Mr
Motloba to approach him over a crisis which Mr Motloba created in
respect of the public holiday payment. He was accompanied
by two
union officials to Mr Mzeline, who was with Mr Mxoli, also a union
official, and a group of at least 20 employees. These
employees were
up in arms that Mr Motloba agreed with management on the method of
payment for work performed on the public holiday
whereas the two shop
stewards accused him of taking a decision on behalf of the employees
without their mandate. They explained
to Mr Motloba that the payroll,
in particular Ms Bezuidenhout, referred them to Mr Motloba and said
that he had agreed with Johnson
Controls’ interpretation of the
MIBCO agreement with regard to the public holiday payment. In view of
the fact that he disputed
this allegation the employees requested him
to accompany them to the payroll office to obtain clarification on
the issue. Under
cross-examination he contradicted this statement
saying that he did not invite the group of employees to Ms
Bezuidenhout’s
office they just joined him and the other shop
stewards.
[15]
Mr Motloba and the group met Ms Bezuidenhout at the entrance of her
office. She requested Mr Motloba to send the group of employees
to
their work station. He told her that the employees had the right to
be there because there was confusion on how they would be
paid. He
enquired from Ms Bezuidenhout whether he had agreed on the method of
calculating the payment for the wages or whether
he had agreed to
disagree with payroll. He says that the correct response was not
forthcoming from Ms Bezuidenhout save to persistently
state that the
issue had been explained to him. He says that Ms January intervened
and repeated what Ms Bezuidenhout articulated.
[16]
Mr Motloba says that he enquired from Ms Bezuidenhout why she lied to
the employees that he agreed with management on the method
of
computing the payment of the wages. Although he used hands gestures
during the confrontation he says he did not point at Ms
Bezuidenhout
or prodded her in the chest with his finger. He also denied having
made himself guilty of any intimidation, insolence
or disrespectful
behaviour or used abusive language towards Ms Bezuidenhout or words
suggesting that he would assault her. He did
not shout at Ms
Bezuidenhout but conceded that he spoke in a loud voice because the
group made noise and was addressing all present.
He also conceded
that the argument became heated.
[17]
On the next day, following the heated exchange, Ms Scheepers handed
over to him a letter of suspension from duty with immediate
effect.
He was later subjected to a disciplinary hearing on charges already
highlighted and dismissed. He referred his dismissal
dispute to MIBCO
for conciliation and thereafter, the arbitration.
The arbitration
proceedings
[18]
The basis of the arbitrator’s finding were in the main
predicated on the following passage in
Food
& Allied Workers Union v Harvestime Corporation (Pty) Ltd:
[1]
‘
(A)n
employee, when he approaches or negotiates with a senior official or
management, in his capacity as shop steward, does so on
virtually an
equal level with such senior official or management and the ordinary
rules applicable to the normal employer-employee
relationship are
then somewhat relaxed.’
[19]
The arbitrator determined that Ms Bezuidenhout felt intimidated by
the group of employees who approached her. She had to endure
the
conversation with the visibly upset Mr Motloba and the group of
employees. The arbitrator accepted the evidence of Mr Stigant
that Ms
Bezuidenhout suffered from PTSD and was of the view that the
occurrences of 24 June 2010 subjectively caused her trauma.
[20]
On the charge of physical and verbal assault the arbitrator found
that the evidence tendered by both parties was credible and
reliable
and their versions equally probable. He went on to state:
‘
(I)t seems
as though the distinguishing factor was Mrs Bezuidenhout’s
perception of the situation she had to face. Her perception
of what
was busy happening appears to have been removed from the actual event
as a result of her psychological realm…’
The
arbitrator was of the view that if Mr Motloba touched Ms Bezuidenhout
the mere touching did not constitute assault. He found
that Mr
Motloba was not guilty on the charge because Johnson Controls did not
succeed in proving that Mr Motloba acted intentionally
and
unlawfully.
[21]
The arbitrator was of the view that Johnson Controls’ basis of
the charge of serious disrespect, impudence and/or insolence,
alleged
to have been perpetrated by Mr Motloba against Ms Bezuidenhout, was
unclear. He held that Ms Bezuidenhout was approached
by Mr Motloba
accompanied by a number of shop stewards, including the shop stewards
more senior to him and the group of employees.
They required Ms
Bezuidenhout to explain something that was relevant to industrial
relations in the workplace. The arbitrator was
of the view that Mr
Motloba approached Ms Bezuidenhout in his capacity as a shop steward
and that, under those circumstances, the
principle articulated in
Harvetime Corporation
supra
found application.
[22]
The arbitrator found that Mr Motloba subjectively believed that Ms
Bezuidenhout was a “liar”. He held that Mr Motloba’s
undisputed testimony was to the effect that:
‘
Mrs
Bezuidenhout had informed them (the group of employees) that he
(Motloba) had agreed to her interpretation of the MIBCO agreement
relating to the public holiday payment. Based on these advises he
subjectively believed that she had told them a lie. He believed
his
integrity as a shop-steward was under attack and he reacted in
response thereto. This incident was therefore in relation to
his
duties as a shop-steward. One cannot fault vociferous and determined
shop-steward acting on behalf of his constituency. Obviously
there
are limits to his immunity as developed by the labour jurisprudence.’
[23]
I must immediately point out that the arbitrator was not entirely
correct in holding that Mr Motloba’s evidence was undisputed.
It is important to remember that Ms Bezuidenhout disputed having
informed the group of employees that Mr Motloba agreed to Johnson
Controls’ method of calculating the public holiday payment. Be
that as it may, the arbitrator reasoned that the use of the
word
“liar” in the context of the incident although crass was
not abusive.
[24]
The arbitrator further found that the fact that Ms Bezuidenhout was
approached by a large group of employees did not entail
that Mr
Motloba was disrespectful, impudent or insolent towards Ms
Bezuidenhout. Mr Motloba accompanied these employees on their
request
and there had been other shop stewards senior to Mr Motloba in that
group.
[25]
In relation to the charge pertaining to the threatening and/or
intimidating behaviour, the arbitrator found that there was
no direct
evidence to sustain the guilty verdict. He was of the view that Mr
Motloba did not express any threat of harm or physical
violence
towards Ms Bezuidenhout. He held that Ms Bezuidenhout subjectively
felt intimidated by the contingent and the determined
approach by Mr
Motloba but objectively it could not be said that the latter acted in
an intimidating and threatening manner towards
her and said “He
was merely performing his duties as a shop steward”.
[26]
The arbitrator concluded that the dismissal of Mr Motloba was
procedurally fair but substantively unfair in that Johnson Controls
had failed to prove, on the balance of probabilities, the charges it
levelled against him. With regard to the relief, he determined
that
the reinstatement or reemployment of Mr Motloba was impracticable in
that, regard being had to the fact that Ms Bezuidenhout
was the
payroll manager of Johnson Controls, “there will still be a
fair amount of interaction between Ms Bezuidenhout and
Mr Motloba”.
He then ordered that Johnson Controls pays Mr Motloba compensation
equivalent to 12 months’ remuneration.
The
review proceedings before the Labour Court
[27]
Mr Motloba filed an application to review and set aside the
arbitration award on the basis that the arbitrator acted irrationally
in not ordering that he be reinstated to his position pursuant to his
finding that Mr Motloba’s dismissal was substantively
unfair.
Johnson Controls launched what was referred to as a cross-review
against the arbitrator’s conclusion that the dismissal
of Mr
Motloba was substantively unfair.
[28]
The Court
a
quo
had regard to a number of authorities on the fairly established
review threshold.
[2]
It then
concisely set out the grounds of the cross-review and the review. It
firstly disposed of the cross-review as its outcome
could be
dispositive of the main review.
[29]
The Court
a quo
’s analysis of the evidence and argument
on the first charge of physical and verbal assault was as follows. It
found that
the arbitrator failed to properly apply his mind to the
evidence in finding that the probabilities were evenly balanced. The
same
applied to the arbitrator’s finding on the credibility and
reliability of the witness. The Court
a quo
held that it was
not open to the arbitrator, having found that Ms Bezuidenhout was a
credible and reliable witness and her evidence
probable, to conclude
that her “perception of what was busy happening appeared to
have been removed from the actual event.”
It held:
‘
To extent
that this suggest that Bezuidenhout’s perception of what
happened during the incident, as relayed by her in her
evidence, was
removed from reality, it would necessarily follow that she was not a
credible witness, and that her evidence was
unreliable and
improbable.’
[30]
The Judge
a quo
held that the arbitrator also failed to have
regard to the evidence which demonstrated that Ms Bezuidenhout feared
for her safety
due to Mr Motloba’s conduct. It reasoned that,
in concluding that Johnson Controls failed to establish that there
was an
intention to assault, the arbitrator ignored the unchallenged
evidence of Ms January to the effect that she had heard Ms
Bezuidenhout
exclaiming “Excuse me” shortly after
witnessing Mr Motloba pointing his finger in Ms Bezuidenhout’s
direction
and Ms Bezuidenhout’s evidence to the effect that Mr
Motloba had pointed his finger at her and that she retorted: “Excuse
me”, as a direct result of Mr Motloba’s finger having
made physical contact with her.
[31]
The Judge was further of the view that the arbitrator ignored the
evidence which indicated that shortly after the incident,
Ms
Bezuidenhout told both Ms January and Scheepers about the physical
contact by Mr Motloba. He also ignored the evidence by both
Ms
January and Ms Bezuidenhout that Mr Motloba was aggressive and angry
on account of the accusation by members of the union that
he had
agreed to Johnson Controls’ method of computing the public
holiday payment. The Judge held that Mr Motloba’s
evidence was
to the effect that he never pointed his finger at Ms Bezuidenhout. In
finding that there was no evidence of intent
to assault, the Judge
found, the arbitrator afforded Mr Motloba the benefit of a defence to
which he gave no evidence. It further
found that the arbitrator had
committed a reviewable irregularity in that he failed to assess the
credibility and reliability of
witnesses including the probabilities.
[32]
With regard to the second charge of serious disrespect, impudence
and/or insolence and the third charge of threatening and/or
intimidating behaviour the Court
a
quo
observed that the arbitrator correctly recognised that in certain
circumstances the shop stewards enjoy a degree of immunity from
discipline which is by no means absolute. The Court had regard to
several decisions of the Labour Court and this Court on the test
to
be applied when striking a balance between the right of the shop
stewards to exercise their functions as the representatives
of the
union and the right of the employers to discipline the shop stewards
when exercising their duties as shop stewards for acts
of
misconduct.
[3]
[33]
The Court
a quo
held that to the extent that the arbitrator
applied the incorrect “anything goes” approach, suggested
in
Harvestime Corporation supra
, he committed a gross
irregularity. The Court reasoned that the approach adopted by the
arbitrator led to his conclusion that Mr
Motloba had not committed
any physical and verbal assault on Ms Bezuidenhout or any serious
disrespect, impudence or insolence
or exhibited any threatening and
intimidating behaviour towards her. The Judge was of the view that
the arbitrator ought to have
applied the principle enunciated in the
judgments of this Court, which I revert to later, by recognising the
status enjoyed by
the shop stewards but rejecting the “anything
goes” approach.
[34]
The Court
a quo
concluded that the only reasonable conclusion
to be made on the facts was that Mr Motloba committed the acts of
misconduct for
which he was charged. It further held that Mr
Motloba’s behaviour was entirely unnecessary. There was no need
for him to
shout and be aggressive towards Ms Bezuidenhout
approximately 30 cm away from her. There was equally no need for him
to prod her
in the chest with his finger.
[35]
The Court
a quo
was critical of the union and Mr Motloba
insofar as they sought to paint the entire incident as an innocuous
exchange. Ms Bezuidenhout
broke into tears and had been affected by
Mr Motloba’s tirade to the extent that she was diagnosed as
suffering from PTSD.
In the final analysis, the Labour Court held
that the arbitrator’s award was incapable of being sustained
and stood to be
reviewed and set aside.
[36]
On the above conspectus, it became
brutum fulmen
for the Court
a quo
to consider the merits of the review application.
Consequently, it dismissed same with costs and upheld the
cross-review with costs.
It further substituted the award of the
arbitrator with an order that the “The dismissal of the
applicant (Mr Motloba) was
substantively and procedurally fair”.
The
grounds of appeal
[37]
The grounds of appeal were presented in the form of argument. In
summary:
37.1 It
was contended that the Court
a quo
failed to appreciate that
the arbitrator preferred the version of Mr Motloba to that of Ms
Bezuidenhout because, as found by the
arbitrator, her version was
less credible and reliable due to her subjective state of mind. It
was argued that the basis for this
contention was foreshadowed in the
arbitrator’s finding that the distinguishing factor was that Ms
Bezuidenhout’s version
was removed from reality. Mr Niehaus,
for the union and Mr Motloba, further argued that, insofar as the
arbitrator accepted that
Ms Bezuidenhout was a credible and reliable
witness, he made a mistake which was not reviewable in that the error
did not have
a distorting effect on the actual outcome of the
arbitration award. Mr Niehaus went on to argue that the outcome of
the award fell
within the range of reasonable outcomes a reasonable
decision-maker could have reached in the prevailing circumstances.
37.2 It
was argued that on any proper and reasonable consideration of the
evidence Mr Motloba’s version
that he did not touch Ms
Bezuidenhout was more probable than that of Ms Bezuidenhout,
alternatively, such a finding was reasonable
and no basis existed to
upset the award on review. It was further contended that Johnson
Controls’ version was destructive
of the allegation of assault
in that Ms Bezuidenhout’s testimony was to the effect that Mr
Motloba had done no more than
touch her and that Ms January conceded
that if that happened it was not done with the intention to assault
Ms Bezuidenhout.
37.3 Mr
Niehaus further argued that the Court
a quo
had no regard to
the important parts of the evidence (inclusive of concessions)
alternatively did not afford the evidence sufficient
weight or failed
to appreciate that the evidence rendered the award one that the
reasonable decision-maker could make.
37.4 Mr
Niehaus contended that the Court
a quo
incorrectly reasoned
that Ms Bezuidenhout had claimed that she had feared for her safety.
Such a claim, he argued, was made
ex post facto
in the context
of her specific psychiatric condition and relevant to the prospects
of Mr Motloba returning to work. In any event,
it was argued, had
such a claim been made in the context of the actual incident it would
have been inconsistent with Ms Bezuidenhout’s
conduct and
statements at the time.
37.5
The Court
a quo
incorrectly accepted the evidence by Ms
January that she overheard Ms Bezuidenhout exclaiming “Excuse
me” as corroboration
that there had been physical contact
despite the fact that it was highly improbable that Ms January would
not have witnessed the
physical contact had it occurred in front of
her as alleged by Johnson Controls and Ms Bezuidenhout.
37.6 It
was argued that the Court
a quo
placed emphasis on the fact
that shortly after the incident Ms Bezuidenhout had claimed that Mr
Motloba touched her whereas the
claim was influenced by Ms January’s
emotional comment to the effect that she thought that Mr Motloba
would “hit”
Ms Bezuidenhout. Mr Niehaus contended that
the statement was inconsistent with Ms January’s evidence that
Mr Motloba never
intended to strike Ms Bezuidenhout. He further
argued that the Court
a quo
incorrectly found that “shortly
after the incident” Ms Bezuidenhout had told Ms Scheepers about
the physical contact
by Mr Motloba when Ms Scheepers’ evidence
was that Ms Bezuidenhout made no reference to this during the meeting
she had with
Ms Scheepers and Mr Govender.
37.7 It
was argued that the Court
a quo
incorrectly inferred that the
probabilities favoured an interpretation that Mr Motloba made
physical contact with Ms Bezuidenhout
because Mr Motloba had been
aggressive and angry. That even if it should be accepted, on the
probabilities, that Mr Motloba made
physical contact, he was
genuinely not aware of it given the prevailing circumstances and the
context.
37.8 Mr
Niehaus contended that Johnson Controls did not make out a
prima
facie
case of assault against Mr Motloba which required an answer
from him.
37.9 Mr
Niehaus further argued that the Court fundamentally erred in having
substituted the award of the arbitrator
as opposed to finding that
the award remained one a reasonable decision-maker could have made.
He contended that the Court
a quo
had failed to draw a proper
distinction between an appeal and a review.
37.10 In respect of
the second and the third charges, it was argued that the Court
a
quo
incorrectly found that the arbitrator had adopted the
“anything goes” approach whereas the arbitrator
specifically
stated that there were limits to the leeway afforded to
the shop stewards, on the manner in which they conducted themselves,
during
the interactive meetings between the union and management.
37.11 It was
contended that it was incorrect for the Court
a quo
to hold
that Ms Bezuidenhout’s psychiatric condition was unlikely to
have arisen had she been confronted with a benign incident.
Mr
Niehaus further argued that the Court
a quo
ignored Mr
Stigant’s evidence that some people may be exposed to major
trauma and suffer no PTSD (post-traumatic stress disorder)
whereas
others may be exposed to mundane incidents and develop such a
condition. The condition may also be triggered by a perception
of a
threat without exposure to the actual threat. Mr Niehaus submitted
that Ms Bezuidenhout developed PTSD due to her failure
to seek
treatment for what was initially an insignificant stress related
condition.
37.12 Mr Niehaus
further contended that the Court
a quo
failed to have regard
to the evidence by Ms Scheepers and Ms Bezuidenhout that the incident
was different from the previous incidents,
which did not result in
charges being preferred against Mr Motloba, because Johnson Controls
and Ms Bezuidenhout regarded it as
a personal attack on Ms
Bezuidenhout’s integrity. It was further argued that the Court
a quo
ought to have found that the event was blown out of
proportion due to Johnson Controls and Ms Bezuidenhout’s
over-sensitivity
in respect of the personal element connected
thereto.
37.13 It was argued
that had the Court
a quo
properly considered the evidence it
would not have dismissed the union and Mr Motloba’s contention
that the incident was
relatively minor, “the proverbial storm
in a teacup”.
The analysis of the
grounds of appeal
[38]
Following the decision of the Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[4]
on the review test this Court provided further guidance on the test
in its number of decisions. In
Head
of Department of Education v Mofokeng and Others,
[5]
this Court provided the following useful exposition on the test which
needs to be quoted
in
extenso
:
‘
[30] The
failure by an arbitrator to apply his or her mind to issues which are
material to the determination of a case will usually
be an
irregularity. However, the Supreme Court of Appeal (the SCA) in
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
[(2013) 34
ILJ
2795 (SCA)]and this court in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration & others
[(2014) 35
ILJ
943 (LAC)]; have held that before such an irregularity will result in
the setting aside of the award, it must in addition reveal
a
misconception of the true enquiry or result in an unreasonable
outcome.
[31] The determination of whether a
decision is unreasonable in its result is an exercise inherently
dependent on variable considerations
and circumstantial factors. A
finding of unreasonableness usually implies that some other ground is
present, either latently or
comprising manifest unlawfulness.
Accordingly, the process of judicial review on grounds of
unreasonableness often entails examination
of inter-related questions
of rationality, lawfulness and proportionality, pertaining to the
purpose, basis, reasoning or effect
of the decision, corresponding to
the scrutiny envisioned in the distinctive review grounds developed
casuistically at common law,
now codified and mostly specified in s 6
of the Promotion of Administrative Justice Act (PAJA); such as
failing to apply the mind,
taking into account irrelevant
considerations, ignoring relevant considerations, acting for an
ulterior purpose, in bad faith,
arbitrarily or capriciously, etc. The
court must nonetheless still consider whether, apart from the flawed
reasons of or any irregularity
by the arbitrator, the result could be
reasonably reached in the light of the issues and the evidence.
Moreover, judges of the Labour Court should keep in mind that it
is not only the reasonableness of the outcome which is subject to
scrutiny. As the SCA held in
Herholdt
, the
arbitrator must not misconceive the enquiry or undertake the enquiry
in a misconceived manner. There must be a fair trial
of the issues.
[32] However, sight may not be lost of
the intention of the legislature to restrict the scope of review when
it enacted s 145 of
the LRA, confining review to 'defects' as defined
in s 145(2) being misconduct, gross irregularity, exceeding powers
and improperly
obtaining the award. Review is not permissible on the
same grounds that apply under PAJA. Mere errors of fact or law may
not be
enough to vitiate the award. Something more is required. To
repeat: flaws in the reasoning of the arbitrator, evidenced in the
failure to apply the mind, reliance on irrelevant considerations or
the ignoring of material factors etc must be assessed with the
purpose of establishing whether the arbitrator has undertaken the
wrong enquiry, undertaken the enquiry in the wrong manner or
arrived
at an unreasonable result. Lapses in lawfulness, latent or patent
irregularities and instances of dialectical unreasonableness
should
be of such an order (singularly or cumulatively) as to result in a
misconceived enquiry or a decision which no reasonable
decision maker
could reach on all the material that was before him or her.
[33]
Irregularities or errors in
relation to the facts or issues, therefore, may or may not produce an
unreasonable outcome or provide
a compelling indication that the
arbitrator misconceived the enquiry. In the final analysis, it will
depend on the materiality
of the error or irregularity and its
relation to the result. Whether the irregularity or error is material
must be assessed and
determined with reference to the distorting
effect it may or may not have had upon the arbitrator's conception of
the enquiry,
the delimitation of the issues to be determined and the
ultimate outcome. If but for an error or irregularity a different
outcome
would have resulted, it will ex hypothesi be material to the
determination of the dispute. A material error of this order would
point to at least a prima facie unreasonable result.
The
reviewing judge must then have regard to the general nature of the
decision in issue; the range of relevant factors informing
the
decision; the nature of the competing interests impacted upon by the
decision; and then ask whether a reasonable equilibrium
has been
struck in accordance with the objects of the LRA.
Provided the
right question was asked and answered by the arbitrator, a wrong
answer will not necessarily be unreasonable. By the
same token, an
irregularity or error material to the determination of the dispute
may constitute a misconception of the nature
of the enquiry so as to
lead to no fair trial of the issues, with the result that the award
may be set aside on that ground alone.
The arbitrator however must be
shown to have diverted from the correct path in the conduct of the
arbitration and as a result failed
to address the question raised for
determination.’ (My emphasis)
[39]
The question which arises for consideration in this appeal is whether
Mr Motloba committed the three disciplinary offences
with which he
was charged viz: physical and verbal assault; serious disrespect,
impudence and/or insolence; and lastly threatening
and/or
intimidating behaviour. Inextricably linked to this question is
whether these charges were spuriously devised and actuated
by the
impact of the incident of 24 June 2010 on Ms Bezuidenhout
psychological wellbeing. The parties’ versions were
diametrically
opposed on the question whether Mr Motloba misconducted
himself as alleged.
[40]
On the first charge of physical and verbal assault, Johnson Controls
presented direct evidence by Ms Bezuidenhout that Mr Motloba
pointed
and prodded her in the chest with his finger to which she exclaimed
“Excuse me”. Her evidence was corroborated
by that of Ms
January who testified that Mr Motloba shouted at Ms Bezuidenhout. He
was at close quarters when he did so, approximately
30 cm “in
her face” and quite aggressive and enraged. Ms January also saw
Mr Motloba’s finger moving in the direction
of Ms Bezuidenhout
and heard her exclaim “Excuse me”. In my view, it matters
not that Ms January did not observe the
actual physical contact
regard being had to the fact that the incident took place in the
duration of two and half minutes and there
had been some commotion.
What is more is that, later on that eventful day, Ms Bezuidenhout
relayed to Ms January what had transpired
and confirmed that Mr
Motloba assaulted her by prodding her in the chest with his finger.
She also gave the same consistent account
to Ms Scheepers on the next
day. It can hardly be argued that Ms Bezuidenhout’s allegations
against Mr Motloba grew over
a period of time and were purely
motivated by anger and misplaced feeling of humiliation as the union
and Mr Motloba seek to project.
[41]
The Court
a quo
’s finding that the arbitrator failed to
properly apply his mind to the evidence in concluding that the
probabilities were
evenly balanced and that the evidence presented by
both parties was credible and reliable is unassailable. The
arbitrator’s
conclusion that Ms Bezuidenhout’s
“perception of what was busy happening appeared to have been
removed from the actual
event” is at odds with his finding that
she was a credible and reliable witness.
[42]
Mr Motloba conceded that the exchange was heated. When it was put to
him that he was exceedingly angry and shouted he prevaricated
but
said that he was upset. On his own admission, Mr Motloba spoke in a
loud voice because he says he was addressing the group
of employees.
On the probabilities, Mr Motloba shouted at Ms Bezuidenhout; he was
aggressive and enraged on account of the accusation
made by the group
of employees that he had agreed with Johnson Controls’
interpretation of the collective agreement without
their mandate. It
is also probable that, in a fit of anger, Mr Motloba pointed and
poked Ms Bezuidenhout with his finger as a display
of his aggression.
His level of aggression was such that Ms January thought that he
would strike at Ms Bezuidenhout. He had the
intention to act as he
did. Mr Motloba’s downright denial that he did not point at Ms
Bezuidenhout or poked her with his
finger must be rejected. The Court
a quo
cannot be faulted in having found that the arbitrator
afforded Mr Motloba the benefit of a defence to which he gave no
evidence
when he concluded that there was no evidence of intent to
assault on the part of Mr Motloba. It also correctly concluded that
the
probabilities favoured the interpretation that Mr Motloba made
physical contact with Ms Bezuidenhout.
[43]
With regard to the second charge of serious disrespect, impudence
and/or insolence, Mr Niehaus contended that there had been
no
swearing or use of abusive language during the interaction between Mr
Motloba and Ms Bezuidenhout. He further argued that the
operational
management regarded the matter as fairly normal. In addition, he
contended that the disciplinary action taken against
Mr Motloba had
its genesis in the perceived personal attack on Ms Bezuidenhout’s
integrity by Mr Motloba which went no further
than Mr Motloba saying
to her “don’t use my name to lie to my people”.
[44]
There is no evidence in support of the argument that Johnson Controls
regarded the incident as normal. On the contrary, it
will be
remembered that Ms Scheepers’ testimony was to the effect that
Johnson Controls viewed the encounter as a personal
attack on Ms
Bezuidenhout’s integrity which could not be countenanced. Mr
Motloba’s outbursts were completely unacceptable
and devoid of
any respect. Mr Partington, for Johnson Controls, argued that the
conduct displayed by Mr Motloba was in truth reminiscent
of the kind
of belligerence and militancy that has no place in industrial
relations. I agree.
[45]
The utterance of the words to the effect that “don’t use
my name to lie to my people” should not be viewed
in isolation.
It must be seen in light that Mr Motloba was extremely aggressive and
enraged. The accusation that Ms Bezuidenhout
had “lied”
to the group of employees was unjustified. Mr Motloba failed to place
the evidence from any of these employees
to prove that Ms
Bezuidenhout had “lied” to them. Mr Motloba’s
argument that Ms Bezuidenhout created the conflictual
situation by
communicating in an irresponsible manner with the employees cannot
avail him.
[46]
Insofar as the third charge is concerned, there was sufficient
evidence which showed that Mr Motloba threatened and intimidated
Ms
Bezuidenhout. As already highlighted, he invaded Ms Bezuidenhout’s
personal space and shouted at her at a relatively short
distance of
approximately 30 cm. He also pointed and poked her with his finger.
[47]
As already alluded to, in arriving at the conclusion that the
dismissal of decision of the Industrial Court in
FAWU
v Harvestime Corporation (Pty) Ltd
[6]
where the Court held that in instances where a shop steward
approaches or negotiates with a senior official or management he/she
does so on virtually an equal level with such senior official or
management and the ordinary rules applicable to the normal
employer-employee
relationship are somewhat relaxed.
[48]
The principle formulated in the considerable body of authority both
in the Labour Court and in this Court
[7]
is that a shop steward should fearlessly pursue the interest of
his/her constituency and ought to be protected against any form
of
victimisation for doing so. However, this is no licence to resort to
defiance and needless confrontation. A shop steward remains
an
employee, from whom his employer is entitled to expect conduct that
is appropriate to that relationship.
[8]
The fact that the bargaining meetings often degenerate does not mean
that one should jettison the principle that, as in the workplace
also, at the negotiations table the employer and the employee should
treat each other with the respect they both deserve. Assaults
and
threats thereof are not conducive to harmony or to productive
negotiation. It is unacceptable to hold that when one acts in
a
representative capacity “anything goes”.
[9]
[49]
In my view, the incident complained of in this case did not arise
during the course of the negotiations or within the context
of the
collective bargaining process. It simply erupted out of the
accusations levelled against Mr Motloba by his constituency
that he
agreed with Johnson Control’s interpretation of the collective
agreement. I am of the view that the arbitrator misconceived
the
nature of the enquiry he was enjoined to undertake in holding that
the heated exchange was in relation to an issue of relevance
to
industrial relations and that Mr Motloba approached Ms Bezuidenhout
in his capacity as a shop steward.
Even
assuming that the heated exchange was in the course of negotiations
Mr Motloba’s conduct flies in the face of the ample
authority
referred to in the preceding paragraph. A vociferous and determined
shop-steward should act in the best interest of his/her
constituency
and not in a manner that is improper and unbefitting of the office
he/she holds. Reliance by arbitrator on
Harvestime
Corporation
in this matrix was plainly wrong and had been correctly found by the
Court
a
quo
as amounting to a gross irregularity.
[50]
There can be no question that the whole workplace feud had a damaging
effect on Ms Bezuidenhout’s psychological wellbeing.
She became
petrified of people entering her personal space; she had sleepless
nights over it; and dreamt of it. The Court
a quo
correctly
found that Mr Motloba did not dispute that “in consequence of
the incident, Bezuidenhout broke down in tears and
that she was
affected by Motloba’s tirade to the extent that she was
diagnosed as suffering from post-traumatic stress syndrome.”
Mr
Niehaus contended that there was no evidence that Ms Bezuidenhout
broke down in tears at the time of the incident. I do not
read the
judgment of the Court
a quo
to be saying that she broke down
in tears at the time of the incident. There was clearly evidence, by
Ms January, to the effect
that later on the day in question,
following the discussion she had with Ms Bezuidenhout in which the
latter expressed her unhappiness
with Mr Motloba’s outburst,
she saw her crying. She also cried on the next day when she was
interviewed by Scheepers concerning
the acts.
[51]
Mr Niehaus’s submission that Mr Stigant had no means of stating
that the PTSD Ms Bezuidenhout was suffering from related
to the
incident is irreconcilable with Mr Stigant’s evidence that the
PTSD was the direct result of the episode. To my mind,
the fact that
Ms Bezuidenhout did not undergo treatment for her condition cannot
avail Mr Motloba as a defence. It is also of no
moment that Mr
Stigant’s assessment was conducted six months following the
event.
[52]
I am not swayed that, on the objective consideration of all the
facts, Johnson Controls’ response to the episode was
completely
disproportionate and patently unfair. The argument that the charges
were trumped-up and actuated by the impact of the
incident of 24 June
2010 on Ms Bezuidenhout psychological wellbeing is unpersuasive.
[53]
A simple apology may have resolved the issues. Instead, an obstinate
trivialization of incident and the denial that the event
was
inappropriate pervades the record. The misconduct for which Mr
Motloba was charged was serious. He showed no contrition. Although
he
intimated that he learned from this experience as a leader not to
permit his constituency to approach matters in the manner
that they
did, he denied that he made a mistake in approaching Ms Bezuidenhout
with the group of approximately 20 employees. I
am satisfied that the
sanction of dismissal meted out was appropriate in the circumstances
of this case.
[54]
To sum up, the Court
a quo
was right in holding that the
arbitrator committed a gross irregularity by failing to properly
apply his mind to the evidence and
to the extent that he applied the
incorrect “anything goes” approach propounded in
Harvestime Corporation.
These irregularities had a distorting
effect on the outcome of the arbitration and vitiate the award. It
follows that the appeal
must fail.
[55]
I am satisfied that it is in accordance with the requirements of law
and fairness that NUMSA, the appellant, be ordered to
pay the costs
of this appeal. Resultantly, I make the following order:
Order
1.
The
appeal is dismissed with costs.
____________________________
MV Phatshoane
Acting
Judge of the Labour Appeal Court
Coppin JA and Landman JA
concur in the judgment of Phatshoane AJA
APPEARANCES:
FOR THE APPELLANT:
Mr Niehaus
Instructed
by Minnaar Niehaus Attorneys
FOR THE FIRST
RESPONDENT:
Adv J Partington
Instructed by Chris Baker
& Associates
[1]
(1989) 10 ILJ 497
(IC).
[2]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007)
28 ILJ 2405 (CC);
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration and Others
(2014)
35 ILJ 943 (LAC)
;
Head of Department of Education v Mofokeng and Others
(2015)
36 ILJ 2802 (LAC).
[3]
National Union
of Mineworkers and Others v Black Mountain Mining (Pty) Ltd
(2010) 31 ILJ 387 (LC) at 398 para 42;
Adcock
Ingram Critical Care v CCMA and Others
(2001) 22 ILJ 1799 (LAC) at 1803-1804 para 15;
SA
Clothing & Textile Workers Union and Another v Ninian &
Lester (Pty) Ltd
(1995) 16 ILJ 1041 (LAC);
Mondi
Paper Co Ltd v Paper Printing Wood & Allied Workers Union and
Another
(1994) 15 ILJ 778 (LAC);
Banking
Insurance Finance & Allied Workers Union and Another v Mutual &
Federal Insurance Co Ltd
(2006) 27 ILJ 600 (LAC) at 608-609 paras 19-21
[4]
2008 (2) SA 24
(CC); (2007) 28
ILJ
2405 (CC) at 2439 para 110 the Court pronounced: “To
summarise,
Carephone
held that s 145 of the LRA was suffused by the then constitutional
standard that the outcome of an administrative decision should
be
justifiable in relation to the reasons given for it. The better
approach is that s 145 is now suffused by the constitutional
standard of reasonableness. That standard is the one explained in
Bato
Star
:
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?
Applying it will give effect not only to the constitutional right to
fair labour practices, but also to the right to administrative
action which is lawful, reasonable and procedurally fair.”
[5]
(2015) 36 ILJ 2802
(LAC) at 2811-2813 paras 30-33.
[6]
(Pty) Ltd
(1989) 10 ILJ 497 (IC).
[7]
The authority is
cited in the judgment of the Court
a
quo
and appears at footnote 3 above.
[8]
Mondi Paper Co
Ltd v PPWAWU and Another
(1994)
15 ILJ 778 (LAC) at 780.
[9]
Adcock Ingram
Critical Care v Commission for Conciliation, Mediation &
Arbitration and Others
(2001) 22 ILJ 1799 (LAC) at 1803 -1804 para 15.