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[2018] ZALAC 25
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Malamlela v South African Local Government Bargaining Council (PA4/2017) [2018] ZALAC 25; (2018) 39 ILJ 2454 (LAC) (6 June 2018)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, PORT ELIZABETH
Not reportable
Case no:
PA4/2017
In the matter
between:
ODWA
MALAMLELA
Appellant
and
SOUTH AFRICAN
LOCAL GOVERNMENT
BARGAINING
COUNCIL
First
respondent
ADV
NYAMEKO GQAMANA
N.O.
Second
respondent
NELSON
MANDELA BAY
MUNICIPALITY
Third
respondent
Heard: 22 May
2018
Delivered:
06
June 2018
Summary:
Employee dismissed for insubordination after refusing to accept
transfer to a position within the same directorate consequent
to the
breakdown in the relationship with her two superiors. At arbitration
dismissal found to be substantively fair. On review
the Labour Court
set aside the arbitration award and found dismissal substantively
unfair, with employee reinstated from date following
judgment into
the same or similar position. Appeal against Labour Court’s
failure to order retrospective reinstatement dismissed.
Cross-appeal
against judgment of the Labour Court succeeds on basis that the award
of the arbitrator fell within the ambit of reasonableness
required.
Order of Labour Court set aside and substituted with order that
dismissal of the appellant was substantively fair.
Coram: Waglay
JP, Phatshoane ADJP and Savage AJA
JUDGMENT
SAVAGE AJA
Introduction
[1]
This
appeal and cross-appeal is against the judgment and order of the
Labour Court (Lallie J),
which
set aside
the
arbitration award of the second respondent (the arbitrator) issued
under the auspices of the first respondent,
the
South African Local Government Bargaining Council (SALGBC), and
substituted it with a finding that the dismissal of the appellant,
Ms
Odwa Malamlela (the employee), on 23 July 2012 was substantively
unfair. The third respondent, the Nelson Mandela Bay Municipality
(the employer), was ordered by the Labour Court to reinstate the
appellant into the same position or a similar position with effect
from 3 October 2016.
[2]
T
he
employer sought leave to appeal against the judgment of the Labour
Court and the employee sought leave to cross-appeal against
the date
of reinstatement ordered. The Labour Court refused the employer leave
to appeal but granted the employee leave to cross-appeal.
With leave
to appeal having been granted to the employee, the employer is
entitled, in terms of Rules of this Court, to cross-appeal
against
the judgment.
The
employee sought that the late filing of her notice of appeal be
condoned. The application was not opposed and there is no reason
to
refuse such application.
[3]
The
employee’s appeal is confined to the Labour Court’s
decision not to grant her reinstatement retrospective to the
date of
her dismissal in July 2012. She seeks that the Labour Court’s
order of reinstatement with effect from 3 October 2016
be substituted
with an order of retrospective reinstatement from 23 July 2012. The
employer opposes the appeal on the basis that
in terms of s193(1)(a)
of the Labour Relations Act, 66 of 1995 (the LRA), the Labour Court
or an arbitrator has a discretion and
“
may
”
reinstate an employee “
from
any date not earlier than the date of dismissal
”.
Since the appellant was found to have failed to come before the
arbitrator “
with
clean hands
”,
the discretion was exercised against the appellant.
[4]
The
employer cross-appeals against the judgment on the grounds that the
award fell within the ambit of reasonableness required and
there
existed no basis on which to justify setting aside the award. The
employee opposes the cross-appeal.
Background
[5]
The
employee was employed as an Informal Housing Officer by the employer.
She was dismissed after having been found guilty of insubordination
in deliberately refusing to comply with an instruction issued by the
Director of Social Development, Housing and Administration
that she
moves from the sub-directorate of Informal Settlements to the
Development and Support sub-directorate. Both posts fell
within the
same Directorate and were located in the same building.
[6]
Aggrieved
with her dismissal, the employee referred an unfair dismissal dispute
to the SALGBC for determination. By agreement between
the parties,
the arbitrator was asked to determine the matter on the record of the
disciplinary hearing and no new oral evidence
was led at arbitration.
[7]
From
the record of the proceedings before the arbitrator, the evidence was
that the employee reported to Assistant Director, Ms
Hlela, and then
to Acting Director, Mr Nogampula. Both Ms Hlela and Mr Nogampula
testified as to the serious breakdown in their
relationship with the
employee and the impact that this had on service delivery. Mr
Nogampula stated that:
‘
The
situation was becoming untenable
…[the
employee]
led
a delegation of staff members to stage a sit-in in the office of the
executive director. That created chaos in my department…after
our management meetings where she was
present
she would call her staff members and distort the information that was
discussed in the meeting. So there was no proper communication
with
the entire staff
.’
[8]
Ms
Hlela’s evidence supported that of Mr Nogampula. She put the
problem down to the fact that after she was promoted into
the
position of Assistant Director, a post for which both she and the
employee had applied, the employee would not take instructions
from
Ms Hlela or accept her decisions. The employee lodged an unfair
labour practice dispute regarding the employer’s failure
to
promote her, but the promotion of Ms Hlela was not set aside. Mr
Nogampula said that there was chaos in the sub-directorate
due to the
breakdown in the relationship with the employee. Various attempts
were made to resolve the matter until finally a third-party
service
provider was contracted
inter
alia
to attempt to resolve the conflict. That process was unsuccessful,
and the issues persisted, particularly between the employee
and Ms
Hlela.
[9]
The
employee in evidence accepted that there were problems between
herself, Ms Hlela and Mr Nogampula. She described the working
environment as ‘
very
tense’.
She
stated:
‘
There
were problems in the department between myself and the assistant
director Tembekasi Hlela together then with the acting director
Mr
Nogampula. Problems started after the appointment of Ms Hlela after I
was disputing that appointment. So ever since then it
has been very
tense working environment between the three of us. At one stage in
January in the boardroom on the 17
th
floor 2009 Mr Nogampula called in a staff meeting saying that we
needed to resolve these issues, whatever issues that were there
because I am the link between management and the staff personnel.
In
an attempt from my side in resolving problems of the department I
initiated a meeting with the executive director whereby he
promised
that…he will try and intervene on all problems that are within
the department…The staff also went to the
executive director.
After seeing that the executive director is not assisting with all
the cries that have been within the department
we went to – we
tried to secure meetings with the municipal manager. But to no avail
because
we
were following protocol before we even landed up in the office of the
portfolio councillor…There were meetings, separate
meetings,
between myself and the portfolio councillor and together with the
portfolio councillor with the staff of informal settlement.
The
portfolio councillor is in, I don’t want to say close
relations, but whatever happens with staff matters…the union
is obliged to make a report to him of
how
departments are handling their staff. So hence now the meeting took
place between myself…and the portfolio councillor
since there
was an outcry about my situation in the department…The
portfolio councillor wanted to…settle the matter
in a resolved
and humble way
…’
.
[10]
On
22 April 2010, the employee was called to a meeting, which was
attended by Mr Mali, Mr Nogampula and her union representative,
Mr
Fundani. At this meeting, the employee’s transfer was discussed
and she was informed that she would be transferred to
another
sub-directorate. The same day the employee was given a letter from
the Executive Director, Mr Maqethuka, in which it was
stated:
‘…
You
are hereby officially notified of your transfer to the Development
and Support Sub-Directorate as from Monday, 26 April 2010
on your
current conditions of service and salary.
This
decision is in light of the service delivery challenges that the SDEA
Sub-Directorate faces at the moment, especially with
regards to the
relocation programme. This is therefore purely an operational
decision in response to the poor relations between
yourself, Ms Hlela
and Mr Nogampula that is negatively affecting relocations.
As
per your Union’s request, please find attached hereto the
letter of the Acting Municipal Manager authorising the proposed
transfer. Also attached is a letter from the Portfolio Councillor
supporting the proposed transfer. Please report for duty with
Mr
Brummer on Monday, 26 April 2010 for your new duties to be
performed.
’
[11]
The
employee did not report to the new sub-directorate, as instructed, on
26 April 2010, 28 April 2010 or 29 April 2010. A letter
dated 29
April 2010 reiterating that she should report to the post as
instructed was not received by the employee. At some point
during the
day on 29 April 2010, the appellant was booked off sick. On her
return to work, she was suspended from duty. In evidence,
the
employee stated that she was not satisfied with the transfer and did
not report to the new sub-directorate -
‘…
.
because
of the advice that I got from my Union was to say that we haven’t
met and we haven’t dealt with those issues.
What is important
is that you need to be accountable for your whereabouts. You are
employed in this Department so you need to remain
in this Department
until there is a decision that has been reached between ourselves and
the Executive Director and the Portfolio
Councillor
.’
[12]
The
employee took the view that she was entitled to act on the view of
the portfolio councillor, Councillor Mfunda, that she could
remain in
her post and that she was entitled not to comply with the instruction
given to her on 22 April 2010 to move to the new
post. Mr Nogampula
stated that he found it “
strange
”
and “
rather
odd
”
that the portfolio councillor as a politician would issue an
“
administrative
instruction
”
to the employee when the Executive Director was responsible for the
administrative functions of the department. Mr Nogampula
stated that
in her move to another sub-directorate nothing was to change in the
employee’s conditions of service, her benefits
or her salary,
but that the move would directly benefit service delivery.
[13]
In
a letter to the employee from the Acting City Manager on 20 May 2010,
she was informed of her suspension from duty. The letter
recorded
that she had been given an opportunity to make representations why
she should not be suspended from duty “
following
allegations that you blatantly refused direct instructions from your
Superiors and that your general attitude towards
your Superiors is
interfering with service delivery and towards the relocation of
residents
”.
The letter continued:
‘
In
your reply you have denied refusing instructions and claimed that
there was no basis to suspend you. You further claimed that
the
relocation of residents is hampered due to political instability and
that you were still awaiting reasons from the Directorate
for the
instruction to report for duty in the Sub-Directorate Development and
Support. You further claimed that you submitted a
grievance against
your Supervisors at Labour Relations. The grievance is however not
yet received by Labour Relations nor by the
Directorate. Your
representative also claimed that the Union agreed to certain
arrangements with the Executive Director to resolve
the poor
relationship between yourself and your Supervisors. This is denied by
the Executive Director…
…
it
is clear that there are bad relations between you and your Superiors
and this is negatively affecting service delivery in the
Sub
Directorate. Since you said that you are not prepared to be
transferred, I have no option but to suspend you with full pay
until
the allegations against you are fully investigated.’
[14]
From
the arbitration award, it is apparent that the arbitrator had regard
to the evidence that the employee was instructed to report
to another
sub-directorate by the Executive Director; that the instruction was
communicated in writing; that the employee received
the instruction;
and that the employee did not report as instructed on 26 April 2010
or at all. Account was taken of the fact that
there was no dispute
that far from a good working relationship, there was a strained
relationship between the employee, on the
one hand, and Ms Hlela and
Mr Nogampula, on the other. It was also not in dispute that there had
been unsuccessful attempts made
to resolve these strained
relationships. The arbitrator had regard to the fact that the
decision to move the employee was made
so as to address the conflict
and that as much was accepted by the employee. The arbitrator did not
accept that the instructions
given to the employee were unlawful and
unreasonable; that she was not consulted prior to the decision to
transfer her; that she
was presented with a
fait
accompli
since the decision to transfer her had already been taken by the
Acting Municipal Manager; and that she was not given an opportunity
to make representations to the employer. Nor was it accepted that the
decision to transfer the employee was overtaken by her discussion
with the Portfolio Councillor on 23 April 2010, who the employee
claimed would contact the Executive Director to address the issue.
The arbitrator did not share the view that it was in order for the
employee not to give effect to the instruction until further
notice
when the employer’s evidence went unchallenged that the
decision to transfer the employee vested in the Executive
Director.
The arbitrator stated that:
‘
Councillors,
as politicians, have no involvement in the day to day administration
of employees in a Municipality. The Municipal
Manager is the
Accounting Officer responsible for the administration of a
municipality
.
Further,
if one has regard to the
[employee’s]
evidence
stated above, the real reason for disobeying the instructions was
based on the advice given to her by the Union. Unfortunately,
such
advice was incorrect and the Applicant must suffer the
consequences
…’.
[15]
The
arbitrator, therefore, found that the employee had been consulted by
the third respondent about her transfer at the meeting
of 22 April
2010, as Mr Nogampula testified, and that the third respondent had
proved its case against the employee on the insubordination
charge.
[16]
As
to sanction, the arbitrator determined that in spite of the
employee’s personal circumstances, five years of employment
and
clean disciplinary record, as well as the fact that she had received
advice from her union and the Portfolio Councillor, the
sanction of
dismissal was an appropriate and fair sanction given that she had
“
deliberately
defied and/or ignored
”
the instruction given to her. The arbitrator concluded that:
‘…
fairness
comprehends that regard must be had not only to the position and
interests of the employee, but also those of the employer
in order to
make a balanced and equitable assessment. The
[employee]
should
have lodged a grievance if she was not satisfied with her
transfer…However, the
[employee]
did
not lodge a grievance but continued to defy and/or ignore the
instruction
.’
[17]
The
dismissal of the employee, for these reasons, was found to be
substantively fair and the unfair dismissal dispute was dismissed.
The
proceedings before the Labour Court
[18]
Dissatisfied
with the arbitration award, the employee sought that it be set aside
on review by the Labour Court and substituted
with a finding that her
dismissal was unfair. In her founding affidavit in support of that
application, the employee reiterated
that, after she had received the
instruction to move to a different sub-directorate, she had
approached the Portfolio Councillor
and was under the impression that
he would “
address
”
the situation.
[19]
It
was argued for the employee that the instruction to transfer her was
unlawful and unreasonable and that she had the right to
a fair
administrative process before the decision to transfer her was taken.
Issue was taken with what was submitted to be the
arbitrator’s
failure to have regard to the employee’s state of mind in
finding that she was insubordinate, given the
evidence of her genuine
belief that she was entitled to ignore the instruction on the basis
of the Portfolio Councillor’s
assurance that she could remain
in her post until the matter was sorted out.
[20]
The
Councillor did not testify at the arbitration proceedings and the
employer submitted that on the evidence it was apparent that
the
Councillor did not have the authority to give the employee any
assurance, nor could any intervention on his part have suspended
the
instruction given to her. It was denied that the employer’s
instruction had been unlawful or unreasonable, more so when
there was
no evidence that the employee’s contractual duties would alter
in the new position and no bar on the employer taking
an operational
decision to place the employee in that sub-directorate in the
interests of service delivery. The finding that the
employee’s
conduct had amounted to gross insubordination was reasonable and the
award, it was contended, did not fall to
be set aside on review.
[21]
The
Labour Court found the dismissal of the employee substantively unfair
in that the arbitrator had erred by disregarding the involvement
of
the Councillor when there was evidence that councillors frequently
intervene in such matters. Furthermore, the Court found that
the
employee’s insubordination was not gross; and that the employer
had to shoulder part of the blame because of the manner
in which the
employee was transferred. The arbitrator was found to have failed to
consider the employee’s clean disciplinary
record and possible
progressive discipline. In spite of this, the Court found that the
employee had not come to the arbitration
“
with
clean hands
”
and was herself in large measure to blame for the circumstances that
led to her dismissal.
[22]
The
arbitration award was consequently reviewed and set aside, with the
decision of the arbitrator substituted with an order that
the
dismissal of the employee was substantively unfair and that she
should be reinstated with effect from 3 October 2016 into “
the
same position or a position similar to the one she held on the date
of her dismissal on conditions not less favourable than
those which
governed her employment on dismissal.
”
Retrospective reinstatement was not ordered on the basis of the
Court’s finding that the employee’s hands in
the matter
were not clean.
Submissions
on appeal
[23]
On
appeal, it was submitted for the employee that it was presumably due
to the Labour Court’s finding that the appellant’s
hands
were not clean that retrospective reinstatement was not ordered.
Since the misconduct committed was not gross and dismissal
was not
warranted, it was argued that the employer should have imposed a
sanction short of dismissal, in which case the employee
would not
have lost any remuneration. Once the Labour Court decided to
substitute its own decision for that of the arbitrator,
it was
duty-bound to award relief consistent with what the arbitrator was
empowered to award when he presided over the matter in
2012. Even if
the arbitrator had decided not to award retrospective reinstatement
in 2012, it was contended that the employee would
nevertheless have
been reinstated from 2012. At worst for the appellant, the Labour
Court should therefore have awarded reinstatement
from the date of
the arbitration award, being 23 July 2012, and the employee should
not have been penalised for the loss of retrospective
remuneration.
[24]
As
to the cross-appeal, the employee contended that on review the
arbitration award did not fall to be set aside on the grounds
advanced by the employer. It was submitted that the instruction given
to the employee was neither lawful nor reasonable and that
there was
no genuine operational reason for the transfer, but rather it was
based on an ulterior motive. Since the employee was
of the view that
the Councillor would get involved in the matter and address the
situation, she considered it in order for her
not to give effect to
the instruction until further notice. In doing so, it was submitted,
she was not insubordinate but her stance
was reasonable and, at worst
for her, even if there was insubordination, it was not gross. Since
only gross insubordination justifies
dismissal for a first
transgression and the employee’s insubordination, if it
existed, was not serious, persistent or deliberate,
dismissal was not
warranted. In addition, as a first offender and the sole breadwinner
in her family with two minor children, an
appropriate sanction, if it
was to be found that she was insubordinate, was one short of
dismissal.
[25]
Counsel
for the employer submitted in respect of its cross-appeal that the
Labour Court erred in setting the arbitration award aside.
Although
the Labour Court clearly disagreed with the arbitrator, this was no
basis on which to interfere with the arbitration award.
Since the
interference of the Councillor would have been improper, the employee
was obliged to comply with a reasonable instruction
given to her by
her employer and the Court’s criticisms of the employer are
unjustified. There was no change to the employee’s
terms and
conditions of employment in the transfer within the same directorate
and a meeting was held to discuss the move, attended
by the
employee’s union representative. The employer was thereafter
entitled to instruct that the move occur in an attempt
to improve
service delivery and defuse personal tensions. The employee, in
response, wilfully refused to comply with the lawful
and reasonable
instruction given to her by her employer. Her insubordination was
gross in that it was persistent, deliberate and
public. With
reference to
Motor
Industry Staff Association & another v Silverton Spraypainters &
Panelbeaters and Others,
[1]
counsel for the employer contended that the sanction of dismissal was
justified when her defiance flowed from conflict with her
immediate
superiors, destroying the trust relationship. It was a mere
speculation whether progressive discipline could have been
applied in
light of the employee’s conduct. Consequently, the employer
sought that its cross-appeal be upheld with costs
and that the order
of the Labour Court be set aside and substituted with an order that
the review application is dismissed.
Evaluation
[26]
The
Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others (Sidumo)
[2]
found that arbitration awards of the Commission for Conciliation
Mediation and Arbitration (CCMA) constitute administrative action,
reviewable not under the Promotion of Administrative Justice Act 3 of
2000 (PAJA) but in terms of s145 of the LRA; and that s145
was
“
suffused
’
by the constitutional standard of reasonableness. In
Herholdt
v Nedbank
Ltd
(
Congress
of South African Trade Unions as Amicus Curiae
),
[3]
the Supreme Court of Appeal stated:
‘
After Sidumo the
position in regard to reviews of CCMA arbitration awards should have
been clear. Reviews could be brought
on the unreasonableness test
laid down by the Constitutional Court and the specific grounds set
out in ss 145(2)(a) and (b) of
the LRA. The
latter had not been extinguished by the Constitutional Court but were
to be ‘suffused’ with the constitutional
standard of
reasonableness. What this meant simply is that a ‘gross
irregularity in the conduct of the arbitration proceedings’
as
envisaged by s 145(2)(a)(ii) of the LRA, was not confined to a
situation where the arbitrator misconceives the nature of the
enquiry, but extended to those instances where the result was
unreasonable in the sense explained in that case.’
[27]
The
Court concluded that:
‘
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in s 145(2)(a) of
the LRA. For a defect in the conduct of the proceedings
to amount to
a gross irregularity as contemplated by s 145(2)(a)(ii), the
arbitrator must have misconceived the nature of
the inquiry or
arrived at an unreasonable result. A result will only be unreasonable
if it is one that a reasonable arbitrator
could not reach on all the
material that was before the arbitrator. Material errors of fact, as
well as the weight and relevance
to be attached to particular facts,
are not in and of themselves sufficient for an award to be set aside,
but are only of any consequence
if their effect is to render the
outcome unreasonable.
’
[4]
[28]
The
contract of employment between employer and employee is one to be
interpreted subject to the constitutional right to fair labour
practices and the legislation which gives effect to that right.
[5]
An appropriate degree of mutual trust, respect and courtesy is to be
shown by both employer and employee towards the other in the
context
of an employment relationship.
[6]
Our courts have traditionally viewed respect and obedience as implied
duties of an employee under the employment contract,
[7]
with the outdated reliance on obedience intended to refer to the
employee’s duty to act in good faith and adhere to the lawful
and reasonable instructions of the employer.
[8]
[29]
Insubordination
involves a persistent, wilful and serious challenge to, or defiance
of the employer's authority; a “calculated
challenge” to
the employer’s authority, which is deliberate or
intentional.
[9]
.
An employee’s wilful flouting of, or refusal to accept the
reasonable and lawful instruction of the employer constitutes
misconduct because it poses a deliberate and serious challenge to the
employer’s authority,
[10]
with
the sanction of dismissal reserved for instances of gross
insubordination.
[11]
[30]
The
respondent is a municipality established in terms of the
Local
Government: Municipal Structures Act,
117
of 1998
.
The Code of Conduct annexed to its disciplinary procedure requires
employees to “(o)
bey
all lawful and reasonable instructions given by a person having the
authority to do so
”
and recognises that an employee may be dismissed for gross
insubordination on the first occasion.
[31]
The
Court found that “
the
applicant refused to carry out the third respondent’s
instructions”
but
that her misconduct was “
not
gross in that it was influenced by the manner in which her transfer
was handled”,
the
lack of details she had been given about the new position and that
she “
reasonably
believed that
[the
Portfolio Councillor]
Mfunda
would intervene and assist her”
.
Although it was contended on appeal for the employee that her
transfer had been unlawful in that it had not been preceded by
consultation, the Labour Court did not determine this to be so and no
appeal lies against the Court’s failure to find as much.
[32]
The
Labour Court in arriving at the findings that it did overlooked the
fact that it was sitting as a review court, in circumstances
in which
the evidence before the arbitrator showed clearly that, on the
employee’s own version, there was breakdown in her
relationship
with her two superiors, that the working environment was “
very
tense”
,
that service delivery was affected and that repeated efforts had been
made to resolve the problems without success. T
he
arbitrator had regard to the fact that the employee refused to comply
with
the instruction on the basis of advice from the union and her
consultation with the Portfolio Councillor, when the unchallenged
evidence was that the decision to transfer an employee vested in the
Executive Director and that councillors, as politicians, have
no
involvement in day to day employee relations in the municipality.
[33]
The
arbitrator found that the employee had been consulted by the third
respondent about her transfer at the meeting of 22 April
2010, as Mr
Nogampula testified, and that the third respondent had proved its
case against the employee on the insubordination
charge given that
her refusal to comply with the instruction given was clearly wilful,
deliberate, persistent and serious.
[34]
This
finding was supported by the evidence before the arbitrator which
indicated that the employee had refused to respect the authority
of
her superiors over an extended period; and, after failed attempts to
resolve the personal difficulties which existed, the employee
refused
to accept a transfer as an attempt to resolve these difficulties.
This
refusal went to the heart of the employment relationship
and posed a deliberate and serious challenge to the employer’s
authority and its ability, in the public interest, to advance
service
delivery. The employer was not obliged to leave in place a
dysfunctional situation which impacted directly on its operational
imperatives, as the employee would have had. Furthermore, the
employee’s approach was impractical insofar as she sought to
have a political appointee intervene on her behalf in her employment
dispute and conducted herself on the basis that she was entitled
to
take instructions from such political appointee and not her employer.
In the circumstances, the arbitrator’s finding that
the
employee was not entitled to act on an apparent instruction received
from the Portfolio Councillor as a politician, and that
her conduct
was sufficiently serious and insubordinate to make her dismissal
fair, were findings which were reasonable having regard
to the
evidence before him.
[35]
It
is as well to be reminded of what was stated in
Sidumo
‘
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.’
[12]
[36]
The
arbitrator’s finding that the employee had committed serious
misconduct, having regard to the evidence and all relevant
circumstances before him, cannot be said to amount to a decision that
was one that a reasonable arbitrator in the circumstances
could not
reach. That arbitration award was one which fell within the bounds of
reasonableness required and the Labour Court’s
conclusion to
the contrary cannot stand.
[37]
It
follows that the cross-appeal must succeed and that the appeal must
fail. Having regard to considerations of law and fairness,
an order
of costs against the employee is not warranted.
Order
[38]
For
these reasons, the following order is made:
1.
The
appeal is dismissed.
2.
The
cross-appeal succeeds.
3.
The
order of the Labour Court is substituted as follows:
‘
The
application is dismissed
.’
________________
Savage AJA
Waglay JP and
Phatshoane ADJP agree.
APPEARANCES
:
FOR THE
APPELLANT: P Le Roux
Instructed by
Kaplan Blumberg Attorneys
FOR THE THIRD
RESPONDENT: J G Grogan
Instructed by
Gray Moodliar Attorneys
[1]
(2013)
34 ILJ 1440 (LAC); and
SA
Municipal Workers Union and Others v Ethekwini Municipality and
Others
[2016] 12 BLLR 1208 (LAC).
[2]
[2007]
12 BLLR 1097
(CC) at para 110.
[3]
2013
(6) SA 224
(SCA);
[2013] 11 BLLR 1074
(SCA); (2013) 34 ILJ 2795
(SCA) at para 14.
[4]
At
para 25.
[5]
Section
23 of the Constitution.
[6]
NUMSA
obo Mkhwanazi v Ellies Holdings (Pty) Ltd
(2012)
33 ILJ 516 (BCA);
Motor
Industry Staff Association and Another v Silverton Spraypainters and
Panelbeaters (Pty) Ltd
(2013) 34 ILJ 1440 (LAC) at para 47.
[7]
Mqhayi
v Van Leer SA (Pty) Ltd
1984
(5) ILJ 179 (IC) at 182A-D.
[8]
National
Union of Public Service & Allied Workers obo Mani and Others v
National Lotteries Board
2014
(3) SA 544
(CC);
2014 (6) BCLR 663
(CC);
[2014] 7 BLLR 621
(CC);
(2014) 35 ILJ 1885 (CC) at para 57 (minority judgment of Froneman
J).
[9]
National
Union of Public Service & Allied Workers and Others v National
Lotteries Board
2014
(3) SA 544
(CC) at para 213, minority judgment per Dambuza AJ;
Lynx
Geosystems SA v CCMA and Others
(2010)
JOL 26424
(LC);
Transport
and General Worker Union and Another v Interstate Bus Lines (Pty)
Ltd
(1988)
9 ILJ 877 (IC) at 880-1.
[10]
National
Trading Co v Hiazo
(1994)
15 ILJ 1304 (LAC);
[1994]
12 BLLR 53
(LAC) at 1308H-J;
Commercial
Catering & Allied Workers Union of SA and Another v Wooltru Ltd
t/a Woolworths (Randburg)
(1989) 10 ILJ 311 (IC) at 314H-J.
[11]
At
para 22.
[12]
At
para 79.