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[2017] ZALAC 65
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Glencore Holdings (Pty) Ltd and Another v Sibeko and Others (JA16/2016, 2013/JR2189) [2017] ZALAC 65; [2018] 1 BLLR 1 (LAC); (2018) 39 ILJ 138 (LAC) (1 November 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JA16/2016
LC
Case no 2013/JR2189
In
the matter between:
GLENCORE
HOLDINGS (PTY) LTD
First Appellant
XSTRATA
COAL SOUTH
AFRICA
Second Appellant
AND
GEGI
JOSEPH
SIBEKO
First Respondent
WILFRED
NOKA NKGOENG N.O.
Second Respondent
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
Third Respondent
Heard:
15 August 2017
Delivered:
01 November 2017
Summary:
Appropriate relief in terms of section 193 of the LRA –
arbitrator finding employee’s dismissal substantively
unfair
but declined to order primary remedy of reinstatement. Held that
behaviour post-dismissal should not be taken into account
to infer
breakdown in the trust relation justifying departing from the primary
remedy further that the functional role performed
by the employee
within the employer’s organisation was not adversely impacted
by his conduct during the arbitration proceedings
thus rendering
reinstatement impracticable. Labour Court’s judgment setting
aside award upheld - appeal dismissed with costs.
Coram:
Waglay JP, Coppin and Sutherland JJA
JUDGMENT
SUTHERLAND
JA
Introduction
[1]
The
controversy in this matter originates from the decision of an
arbitrator who, having held that the dismissal of the first
respondent
(Sibeko) was substantively unfair, refused to order
reinstatement as desired by Sibeko. The arbitrator concluded that
Sibeko had
behaved badly during the arbitration proceedings and that
this behaviour demonstrated a breakdown in the employment
relationship
to such a degree that reinstatement was an inappropriate
remedy. On review, Hardie AJ set the decision aside and substituted
an
order of reinstatement. The appeal lies against the substitution
of remedy. The proper interpretation of section 193 of the Labour
Relations Act 66 of 1995 (LRA) is implicated in the award and in the
review court’s judgment.
The
Assessment of the critical facts
[2]
Sibeko was
employed as a dozer driver. The occupation was hazardous and it was
required of him to wear protective safety gear. Among
the required
gear was protective ear muffs. An altercation took place in the
course of which Sibeko refused to wear the usual muffs.
He was
charged with misconduct in which employer managed to compile the
elements of refusing to comply with a reasonable instruction,
of
insubordination and of dishonesty. His dismissal followed. The
arbitrator concluded that the employer had not proven misconduct.
That conclusion has not been challenged.
[3]
Sibeko
wanted reinstatement. Consequently, the provisions of section 193(2)
of the LRA applied. That section reads thus:
‘
The Labour Court or the
arbitrator must require the employer to reinstate or re-employ the
employee unless-
(a)
the employee does not wish to be reinstated or re-employed;
(b)
the circumstances surrounding the dismissal are such that a continued
employment relationship
would be intolerable;
(c)
it is not reasonably practicable for the employer to reinstate or
re-employ the employee;
or
(d)
the dismissal is unfair only because the employer did not follow a
fair procedure.’
[4]
In this
case, (a) and (d) were inapplicable.
[5]
The review
court succinctly captured the critical portion of the award at [4]-
[5] thus:
‘
[4] …. the
Commissioner found that the Applicant’s dismissal was
procedurally fair. …. the Commissioner
found that the
dismissal was substantively unfair because the First Respondent had
failed to discharge the onus on a balance of
probabilities, that the
Applicant was guilty of the misconduct levelled against him.
Thereafter, the Commissioner turned
to deal with the appropriate
remedy. His reasoning, in this regard, is contained in
paragraphs 72-74 of the award.
It reads as follows:
“
72.
I now turn to the appropriate remedy. The Applicant sought for
retrospective reinstatement. Section
[193] of the [LRA] provides
reinstatement as a primary remedy in case of the dismissal that was
found to be substantially unfair.
However, in this case I am inclined
to deviate from the primary remedy based on the following reasons:
73.
The manner in which the Applicant conducted himself throughout the
proceedings leaves much
to be desired. If he was not the only witness
to his case, and for the purposes of finalising this matter, I could
have shown him
the door. He accused the Respondent’s
representative of bribing witnesses but could not substantiate his
allegation. He further
accused not only the representative but the
whole HR personnel in attendance to the proceedings of talking to
each other through
legs. This was later extended to me as a
Commissioner. I had to stop the proceedings on numerous occasions due
to his unbecoming
conduct. He said in his own words that this was
just the beginning of a bigger battle between him and the
Respondent.
74.
Given the above, it is my conclusion that the employer/employee trust
relationship has been
broken irretrievably. It is in this context
that I believe six months’ compensation would be appropriate
remedy as opposed
to reinstatement.”’
[6]
It is plain
that this passage from the award contains the entire rationale for
the arbitrator’s decision. It can be taken
as an accurate
description of the factual happenings during the proceedings. Broken
down into its components, it seems that Sibeko
was habitually
disruptive and three outstanding deeds are invoked. First, there were
allegations of bribery, secondly, allegations
that the employer’s
representatives were giving one another and the arbitrator cues
during the hearing, and thirdly, a declaration
that a battle between
the employer and Sibeko has only just begun.
[7]
From the
record, it appears that Sibeko made the bribery remark in response to
a taunt about his union representative withdrawing
from the case
which, so it was insinuated, the union had no confidence in his case
and explained why he was alone and abandoned
in the arbitration. It
is equally plain that the riposte from Sibeko was triggered by the
sense he felt of a need to rebut this
adverse inference. It was
emotive reaction not a seriously considered contention. At another
stage, Sibeko became incensed by the
various people in the
proceedings who, it seems, were seated around a table in relatively
confined space, ostensibly giving each
other a kick under the table
which he inferred was a mode of signalling to one another. The
arbitrator too was kicked in this manner.
When he protested, the
obvious denials and explanations were offered, but also the
employer’s representatives laughed at
his complaint. Within
this context, Sibeko said that “this is the start of a battle”,
a remark which was obviously
an expostulation of an embarrassed
person who felt beleaguered, rather than a considered declaration of
war.
[8]
As the text
of the award, as cited, made no reference to the exact
jurisprudential basis, as contained in section 193(2), upon which
the
arbitrator relied to “deviate” from the primary remedy.
Hardie AJ thereupon fairly considered whether in terms
of either
section 193(2)(b) or (c), the only possible grounds, such a
conclusion by the arbitrator could be justifiable as one
to which a
reasonable arbitrator could reach on the given material.
[9]
Hardie AJ,
at [12] of the review judgment, concluded that (b) was ruled out
because, on the authority of the minority concurring
judgment of
Zondo JP in
Maepe
v CCMA
(2008)
29 ILJ 2189 (LAC) (
Maepe
)
at [14] that the ambit of (b), owing to the phrase “circumstances
surrounding the dismissal…” was limited to
events up to
the point of dismissal but not afterwards, such as arbitration
proceedings.
[1]
[10]
The
applicability of (c) was then considered by Hardie AJ. That
subsection does not include any phraseology which might inhibit
an
assessment of all and every consideration, whenever it might have
occurred. In
Maepe,
the LAC had upheld a review court which had concluded that an
aggrieved applicant who was a CCMA commissioner, who had been,
qua
employee
of the CCMA, found not guilty of sexual harassment, but who had
nevertheless lied in both his disciplinary enquiry and
at the
arbitration could not be reinstated because it would be
“impracticable” to do so, within the meaning of (c).
this
conclusion was reached having regard to an inherent requirement of
the role of a CCMA Commissioner; ie unimpeachable integrity;
it
simply would not do to have a proven liar adjudicating cases under
the auspices of the CCMA.
[11]
Hardie AJ,
at [22] of the review judgment, correctly understood that (c) was
relevant to the core operational requirements of an
employer, a
proposition made clear in
Maepe
.
He concluded that Sibeko’s conduct, even if deserving of
reproach could not be construed to inhibit his reinstatement as
a
dozer driver, and thus his reinstatement was not, as imagined by the
arbitrator, “impracticable” in the sense meant
in (c).
This conclusion is unquestionably correct because the role performed
by Sibeko as a dozer driver did not embrace a dimension
that a
display of bad manners in the arbitration proceedings would render a
reinstatement inappropriate. The true issue is not
that Sibeko was
justified in his outbursts, or that there is a degree of mitigation
in the given circumstances for his poor manners,
but rather that the
functional
role
performed by a dozer driver within the employer’s organisation,
including the functional rapport or lack therefore with his
superiors, was not adversely impacted by such conduct, within the
meaning of (c)
[12]
What Hardie
AJ had to say about Sibeko’s controversial behaviour is, in our
view, insightful, both as regards this matter
and about Labour
Litigation in general, and bears repetition with our endorsement:
‘
[16]
Arbitrations
under the auspices of the Fourth Respondent are litigious proceedings
and thus adversarial in nature. During
the course of such
proceedings, it is not uncommon for parties to behave irrationally.
Such irrationality can manifest in
the show of emotions, a
personal attack on an opponent, wild and unsubstantiated allegations,
paranoia and defensiveness. Indeed,
even seasoned legal
practitioners in the course of the fray are known to vent. More
so, lay litigants caught up in litigious
proceedings. From a
reading of the opening statements made by the Applicant and the First
Respondent before the Commissioner
in the arbitration, it was
apparent that both parties came out all guns blazing in promoting
their cases. The First Respondent
stated that they would like
to prove that the Applicant was a “habitual liar” whilst
the Applicant ventured that all
the allegations in the disciplinary
process were a conspiracy against him. Accusations of
conspiracies and lies abound in
litigious proceedings and alas in
these ones, the Commissioner found that there was neither a
conspiracy to get rid of the Applicant
nor that he was a habitual
liar rather that the First Respondent had simply failed to discharge
the onus of proof, on a balance
of probabilities, that the Applicant
had committed the acts of misconduct complained of.
[17] It
is apparent from the transcript of the arbitration proceedings before
the Commissioner that both the Applicant and
the First Respondent’s
witnesses became emotional at times. This happens in the heat
of the fray. It is the Commissioner’s
task to guide the
process back to rationality in the pursuit of resolving the issues in
dispute.
[18] It
is not uncommon for unrepresented employees to irrationally feel that
they are up against it, particularly, when they
are faced with
multiple employer witnesses who they believe are conspiring against
them. At one stage, during the arbitration
proceedings, the
Applicant raised an objection that the First Respondent’s
witnesses were assisting each other under the
table by kicking each
other and passing notes to each other while giving evidence.
Further, that they were laughing at him
and that the
Commissioner was doing nothing to stop this, with the result that it
was the Applicant’s view that the First
Respondent would “win
the award”. His perception was that not only were they
kicking each under the table but
that the Commissioner himself was
also kicking certain of the First Respondent’s witnesses that
way. The Commissioner
acknowledged that when one of the
witnesses sitting next to him had moved her leg and he had stretched
his, there had been an inadvertent
touch, and that there was nothing
sinister in this. This precipitated the Applicant challenging
the Commissioner as to his
objectivity and the perception that he was
biased towards the First Respondent. It was in this context
that the Applicant
mentioned variously that that arbitration process
was the start of the battle and that, ultimately, the case would be
decided by
Judges and that he would have the last laugh. This
exchange between the Commissioner and the Applicant became heated.
The
Commissioner indicated that because of his conduct, the Applicant
should address him as to why costs should not be awarded against
him
for his disrespect of the Commissioner. At no stage, during the
arbitration, did the Commissioner indicate that as a
result of the
Applicant’s conduct, he would exercise his powers in terms of
Section 193(2) not to reinstate him and nor were
costs ordered
against the Applicant by the Commissioner in the award.
[19] Under
cross-examination, the Applicant alleged that the representative, who
represented him, during his disciplinary enquiry,
had been bribed by
the First Respondent. He alleged that he could substantiate
this allegation but was not given an opportunity
to do so
.’
[13]
Consequently,
it is plain that Hardie AJ was correct to conclude that the award was
indeed one to which a reasonable arbitrator
could not have come and
the appeal must be dismissed.
Conclusion
[14]
The appeal
must fail on the facts, and the judgment
a
quo
upheld.
The
costs
[15]
Both
parties contended that a costs order should be made. Accordingly,
costs must follow the result.
The
Order
The
appeal is dismissed with costs.
____________________
Sutherland
JA
Sutherland
JA (with whom Waglay JP and Coppin JA concur)
APPEARANCES:
FOR
THE APPELLANT:
Adv D Cithi,
Instructed by Mervyn
Taback Inc
FOR
THE RESPONDENT:
Adv L Oken, pro bono.
[1]
Zondo
JP stated
[14]
….The situation envisaged in para (b) is where 'the
circumstances surrounding the dismissal are such that a continued
employment relationship would be intolerable'. It is possible that
insofar as the giving of false evidence under oath may have
occurred
in the disciplinary enquiry before the dismissal, it could be said
that it is one of the circumstances surrounding the
dismissal,
particularly where it was one of the factors that were taken into
account in making the decision to dismiss.
However,
it does not appear to me that the same can be said of a situation
where the giving of false evidence only occurs in the
arbitration or
at the trial subsequent to the dismissal
.
Paragraph (c) envisages a situation where 'it is not reasonably
practicable for the employer to reinstate or re-employ the
employee'. ….” (Emphasis supplied)