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[2018] ZALAC 57
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South African Rugby Union v Watson and Others (CA17/2017) [2018] ZALAC 57; (2019) 40 ILJ 1052 (LAC); [2019] 7 BLLR 638 (LAC) (11 October 2018)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case
no: CA17/2017
In
the matter between:
SOUTH
AFRICAN RUGBY UNION
Appellant
and
ANDRE
WATSON
First Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Second Respondent
JOSEPH
WILSON
THEE
Third Respondent
Heard:
04 September 2018
Delivered:
11 October 2018
Summary:
Test for review of arbitration award – employee dismissed after
being found guilty of using abusive language which
misconduct is
common cause by the commissioner and Labour Court- Labour Court
founding however that dismissal not an appropriate
sanction and opted
for a progressive discipline- Court cautioning not to construe the
review test to that of an appeal- Held that:
In my view, applying the
principles which have been developed with regard to review in terms
of s145 of the LRA, the decision to
dismiss employee, given the
findings which were arrived at by both the court
a quo
and the
commissioner on the charges, was unquestionably one that a reasonable
decision-maker could have made on the facts of the
case. The test is
not whether the arbitrator’s award meets the precision that
might be expected from a judgment of the Labour
Court. It is one
thing to argue that such a mistake justifies a different result on
appeal, but a very different approach must
be taken, when in a case
such as the present, the decision of the commissioner is the subject
of a review. Labour Court’s
judgment set aside and appeal
upheld.
Coram: Davis and
Sutherland JJA and Murphy AJA
______________________________________________________________________
JUDGMENT
DAVIS
JA
Introduction
[1]
This case concerns the proper application of the test developed by
the
courts, whereby in terms of s145 of the Labour Relations Act 66
of 1995 (LRA), an award of an arbitrator may be reviewed and set
aside.
[2]
First respondent was employed by appellant as a General Manager:
Executive
Head of Referees as from November 1998. On 13 March 2015,
he received a notice of arbitration whereby he was informed of
appellant’s
intention to request second respondent to conduct
an arbitration in terms of s188 A of the LRA following upon a series
of allegations
made against him. The allegations were eventually
formulated as charges levelled against first respondent as set out as
follows:
‘
1.
Grossly inappropriate and/or
unprofessional and/or unbecoming and/or abusive conduct:
a.
In the first instance, allegedly toward participants at the
High
Performance Referees Camp and, in particular, the Referees, in and
around November 2014 arising from the manner in which you
addressed
such participants, the language that you used and the attitude you
displayed towards them.
b.
In the second instance, when you allegedly addressed Coaches
and
Referees prior to the commencement of the Varsity Cup in 2014,
arising from the manner in which you address the referees and
coaches, the language that you used and the attitude displayed
towards them.
c.
In the third instance, when you alleged uttered words
to the
following effect or similar effect to Mr Rasta Rashivenge –
I’ll fuck you up … I will kill you if you turn your
back on South African … I will destroy you as I am more
powerful than you know’
– on or about 28 August 2014
during discussions between two of you pertaining to contract
negotiations.
2.
As a consequence of the alleged conduct above and, in general, the
manner in
which you manage and/or deal with referees, a breakdown of
your relationship with the majority of referees on the Elite and
National
Panel has allegedly arisen in that they are unwilling to
work with you thereby leading to a situation of possible
incompatibility
on your part arising from such conduct.
3.
Your conduct as alleged has the potential to bring the name and
reputation of
SARU into disrepute.’
[3]
The arbitration was conducted by third respondent who found first
respondent
guilty on charges 1 a, b and c, and, as a consequence of
this finding, determined that dismissal was the appropriate sanction.
First respondent, then approached the court
a quo
to review
and set aside this determination of third respondent.
[4]
Sitting in the court
a quo
, Tlhotlhalemaje J found first
respondent to be guilty of charges 1 a, b, c and 3 as set out in the
charge sheet but ordered that
the appropriate sanction was a final
warning and that first respondent should be reinstated with back pay
being limited to six
months’ salary. With the leave of the
court
a quo,
appellant has approached this Court on appeal.
The
factual matrix
[5]
First Respondent commenced employment with appellant in November
1998.
A highly successful referee, indeed the only one to have
refereed two world cup finals. First respondent’s relationship
with
his employer was placed into jeopardy following a series of
incidents which I shall briefly set out in chronological order.
[6]
During August and September 2014, he was involved in contract
negotiations
with one of appellant’s referees, Mr Rasta
Rashivenge. Mr Rashivenge described first respondent’s
management style
as “bombastic, dictatorial, intimidating and
not open to reason”. He considered that he was “set up
for failure
from the system”. He approached Mr Watson to
discuss this treatment. He told the court:
‘
I
asked Mr Watson why does he hate me so much, alright? And then I even
put cold questions as if, does he want to come back because
I’m
black and he stopped me right there because he got infuriated and at
that point Mr Watson said to me “Do you know
I’ll f…
you up and I’ll destroy you if you turn your back on South
African and you do not return or you and
after that I told him I had
a lot of respect for him.’
[7]
I should add that the witness then continued:
‘
I
told him he’s a great person and everything and I shook my head
and I asked him why our relationship has changed and he
says he
doesn’t hate me. Mr Watson then got up and I said lets go
for a walk and then at that point he came and gave
me a hug and he
said he doesn’t hate me.’
[8]
Following this encounter, a referee’s high performance camp
took
place on 27, 28 and 29 November 2014. First respondent addressed
participants at the camp in which he consistently used foul language.
According to a senior referee, Jaco Peyper, at some point during the
camp, a referee asked about the fact that the selectors had
not
attended the camp. First respondent then uttered abusive and foul
language towards the selectors and towards their mothers.
First
respondent continued to swear and then took an empty jar, placed it
in front of him and said words to the following effect:
“This
is a swearing jar, R5,00 for anyone who swears for use in the bar
later.”
[9]
One of the other referees, Marius Jonker testified in similar
fashion:
‘
He
was, he was constantly using the “F” word in front of
these ladies and which was, it wasn’t a once-off, there
were
several counts of this and which was inappropriate in my,
inappropriate, in my view…
Just
because you wouldn’t expect that from a manager who is, who
holds the high esteem of André Watson. He is a well-known
figure and also because we had some overseas visitors and some
overseas lady referees that were, and I could see that they were
uncomfortable. That was my perception of the whole scenario.’
[10]
He did not believe first respondent could change. As he told third
respondent:
‘
There
has been some incidents where the relationship between myself and
André have deteriorated in the sense that André
is not
a kind of guy that accepts that you challenge him. He’s
not the kind of person that apologises easily and he’s
a highly
intelligent individual, but in my own personal experience, I found it
difficult to state my case due to him blasting you
off the path you
know, this, my way of the highway.’
[11]
In January 2015, the Varsity Cup tournament took place. At a meeting
thereafter, video
footage was shown to referees in which first
respondent said, “this is not the way to communicate on the
field and we will
not communicate like that”. He then turned on
one of the referees, Mr Cwengile Jadezweni, and said “I hope
you learnt
your lesson from that”. Mr Jadezweni felt humiliated
as a young referee in front of his colleagues as a result of first
respondent’s
conduct.
[12]
In January 2015, 14 referees and 10 others who fall within the
Referees Department lodged
a written grievance against first
respondent. These included some of the most senior referees in South
Africa. Following this grievance,
Mr Jeremy Chennels, a management
consultant and specialist in labour law, was engaged to conduct an
investigation into the grievances
as set out in the January 2015
letter.
[13]
Mr Chennels dealt with each of the grievances separately. With regard
to the manner in
which Mr Rashivenge was allegedly managed by first
respondent Mr Chennels concluded:
‘
It
is probable that Watson’s style of managing his subordinates
did little to assuage concerns that he did not have their
interests
at heart and that the decision was his alone when in fact it might
well have been from powers above…
[t]he perception
remains that these shortcomings have been exacerbated by Watson’s
lack of empathy, his lack of professional
input, his lack of
communication to his subordinates and what is perceived his lack of
interest in the development of referees
in his stable.’
[14]
With respect to first respondent’s conduct at the High
Performance Camp, Chennels
concluded:
‘
All
23 grievants asserted in different degrees that they had believed as
depicted in Watson’s “I won’t change
my management
style, I won’t change the way I speak to you” rant at the
November camp that Watson would not and could
not change his
fundamental style and approach to others’.
[15]
Mr Chennels then concluded in respect of the allegation of
intimidation:
‘
There
appears to be a palpable lack of cohesion and shared vision amongst
the referee body and it is at face value, a highly dysfunctional
unit. It is probable that besides Watson’s management
shortcomings, elements of the dissatisfaction amongst referees
can be
attributed to organisational governance issues which are not of
Watson’s making. However, his overall style has done
little to
mitigate these frustrations.’
[16]
As a result of these findings, Mr Chennels recommended that a
disciplinary hearing be initiated,
in particular, to determine
whether first respondent’s overall management style and
relationship with his subordinates accorded
with the values of the
organisation which had employed him. He also needed to answer the
allegation that he had directly threatened
Mr Rashivenge through his
abusive language.
[17]
The arbitration before third respondent took place in April, May and
June 2015. After evaluating
the evidence led before him, third
respondent found, on the probabilities, that first respondent had
insulted the selectors and
their mothers in an egregious fashion and
that he was guilty on charge 1 a. He also found, with regard to
charge 1 b that first
respondent had made the remarks as charged
during the meeting with varsity coaches and referees and was guilty
as charged. With
regard to charge 1 c, third respondent held that he
did not believe that “Rasta would fabricate his version and
incriminate
Watson falsely specially in the light that I believe that
they had a good relationship.”
[18]
Third respondent then dealt with the remaining issue, namely the
appropriate sanction for
these contraventions. He posed the question
as to whether the trust relationship between the employer and
employee had broken down
and whether incompatible circumstances had
arisen. In his award, he expressly took account of appellant’s
disciplinary code
and procedure of 01 October 2010, in particular,
the provision for progressive disciplinary measures in relation to
individual
misconduct.
[19]
He evaluated first respondent’s behaviour including, taking
account that at the end
of their encounter first respondent had
hugged Mr Rashivenge, he concluded: “I am not convinced that
the trust and confidence
can be restored which he himself had
broken”.
[20]
After analysing whether first respondent’s conduct may
constitute possible incompatibility
which he defined as an inability
on the part of an employee to work “in harmony or culture with
fellow employees”,
third respondent held, on the basis of the
trust and confidence between the parties which had broken down and
given that the conduct
of which first respondent had been found
guilty, that these were of a sufficiently serious nature to justify
the conclusion that
first respondent’s employment should be
terminated with immediate effect.
The
judgment of the court
a quo
[21]
Significantly, Tlhotlhalemaje J agreed with third respondent’s
findings in respect
of charges 1 a, b and c. In this regard, the
learned judge said the following:
‘
There
can be no doubt that the conduct complained of, especially in regard
to the events at both the open and closed sessions of
the High
Performance Camp should be viewed as grossly inappropriate,
unprofessional and unbecoming. Even if the spewing of
obscenities was part of “rugby culture” as alleged by
Watson, the nature of the crude language used by him in the presence
of foreign guest was inexcusable, and the consequences thereof,
without the need for any other evidence, was to bring SARU’s
name into disrepute, bearing in mind that the event was hosted by
it.’
[22]
The learned judge then turned to the question of whether the
complaints as consolidated
and proved by third respondent were of
such a nature that it could be justifiably concluded that the
relationship between the referees
and first respondent had broken
down leading to a finding of incompatibility. He accepted that first
respondent’s management
style was “vulgar, autocratic,
demeaning, unprofessional and to some extent abusive”. He
further accepted “without
reservation that Watson’s
general demeanour in dealing with the referees was unprofessional,
uncouth and borders on the despicable
as demonstrated by the events
of the High Performance Camp and as further attested to by Jonker.”
[23]
However, with reference to appellant’s own disciplinary code
and procedure, Tlhotlhalemaje
J found that a process of progressive
discipline, should have been implemented in an attempt to correct
first respondent’s
behaviour, particularly to determine whether
first respondent could respond positively to such measures. On the
basis of this evidence,
it was not “reasonable for the
arbitrator to conclude that Watson was incapable of changing when he
had not been afforded
an opportunity to do so.” Hence dismissal
was not the appropriate sanction. The learned judge found that third
respondent
had conflated the issue of incompatibility with that of
ordinary misconduct and accordingly, the sanction imposed was not one
that
a reasonable decision-maker could have made in the light of the
evidence placed before him.
Evaluation
[24]
The court
a quo
correctly determined that the key issue
was whether the decision of third respondent to find that first
respondent should be dismissed
was one which a reasonable
decision-maker could make in the light of the evidence presented. The
merits of the charges levelled
against first respondent were not in
dispute in that it was common cause between the third respondent and
the court
a quo
that first respondent had correctly been found
guilty of charges 1 a, b and c.
[25]
The test to
be applied in this kind of dispute is the one which was set out in
Heroldt
v Nedbank (COSATU as amicus curiae) (Heroldt).
[1]
In their joint judgment, Cachalia and Wallis JJA gave welcome
additional content to the Constitutional Court’s decision
in
Sidumo v
Rutenburg Platinum Mines Ltd
2008 (2) SA 24
(CC) in respect of a review brought in terms of s145
of the LRA. A review of an award issued by second respondent is
permissible
if the arbitrator has misconceived the nature of the
enquiry or arrived at an unreasonable result. A result will be
considered
to be unreasonable, if it is one that a reasonable
arbitrator could not reach on all the material presented to him or
her. A material
error of fact as well as the weight and relevance to
be given to any particular fact is not in and of itself a
justification for
an award to be set aside on review. (para 25)
[26]
This
approach was followed by Waglay JP in
Gold
Fields Mining South Africa (Pty) Ltd v CCMA (Gold Field):
[2]
‘
Where
the arbitrator fails to have regard to the material facts it is
likely that he or she will fail to arrive at a reasonable
decision.
Where the arbitrator fails to follow proper process he or she may
produce an unreasonable outcome. But again, this is
considered on the
totality of the evidence not on a fragmented piecemeal analysis. As
soon as it is done in a piecemeal fashion,
the evaluation of the
decision arrived at by the arbitrator assumes the form of an appeal.
A fragmented analysis rather than a
broad based evaluation of the
totality of the evidence defeats review as a process. It
follows that an argument to the failure
to have regard to material
facts have potential result in a wrong decision has no place in
review applications. Failure to have
regard to material facts must
actually defeat the constitution imperative that the award must be
rational and reasonable –
there is no room for conjecture and
guess work.’
[27]
In my view, contrary to the
dicta
in
Gold Field, supra,
the judgment of the court
a quo
unfortunately fell foul of the
established test for review and thus, to a considerable extent,
conflated the concept of an appeal
with that of a review. The court
a
quo
had found “even if the spewing of obscenities was part
of rugby culture as alleged by Watson, the nature of the crude
language
used by him in the presence of foreign guest was inexcusable
and the consequences thereof without the need for any other evidence
was to bring SARU name into disrepute bearing in mind that the event
was hosted by it.” It had also found that “Watson’s
general demeanour in dealing with the referees was unprofessional,
uncouth and bordered on the despicable.”
[28]
Why, it might then be asked would a decision to dismiss be regarded
as one that a reasonable
decision-maker could not make? To put it
differently why would such a decision fall foul of the test as set
out in
Heroldt
and
Gold Fields supra
? Two answers were
proffered by first respondent’s counsel, namely the one offered
by the court
a quo,
namely the need for progressive discipline
and secondly the conflation by third respondent of the concepts of
incompatibility and
misconduct.
[29]
As noted, third respondent had taken account of the appellant’s
disciplinary code
of conduct and concluded that, given the
seriousness of first respondent’s conduct, this was not a case
where progressive
discipline could be justified, particularly in the
light of first respondent’s insistence, until proceedings
before third
respondent, that he could not change together with the
absence of genuine remorse. As Mr Chennels indicated in his report,
first
respondent had most grudgingly conceded that he might need to
change his ways but he had hardly embraced the need for serious
behavioural
change.
[30]
First respondent’s counsel submitted that the facts of this
case required that first
respondent’s alleged incompatibility
demanded a careful assessment of his alleged incompatibility within
the established
principles pertaining to concept of incompatibility.
In this regard, reference was made to
Jabari v Telkom SA (Pty) Ltd
[2006] 27 ILJ 1854 LC at paras 3-5:
‘
[3]
An employer is entitled, where the conduct of an employee creates
disharmony, to-
(a)
evaluate the nature and seriousness of the problem, address same, and
assist the employee to overcome his personal difficulties, and,
(b)
effect remedial action, and if unsuccessful, to place the employee in
a position suitable to his qualifications and experience.
[4]
In order to prove incompatibility, independent corroborative evidence
in substantiation
is required to show that an employee’s
intolerable conduct was primarily the cause of the disharmony.
[5]
In determining the applicant’s alleged incompatibility, it is
appropriate to
enquire whether the fault for the disharmony is
attributable to the applicant’s conduct in that, he was unable
to fit within
the respondent’s ‘corporate culture’
despite attempts by colleagues and the respondent, to accommodate him
and
to remedy the situation or that his conduct was unacceptable or
unreasonable.’
[31]
In the present case, the conduct of which first respondent was found
guilty by the court
a quo
had the potential to bring the name
and reputation of appellant into disrepute as set out in charge 3.
Furthermore, there was substantial
evidence that the conduct of first
respondent had caused significant problems insofar as his
relationship with the other referees
was concerned. By way of
example, in a string of e-mails generated by a senior referee, Mr
Mark Lawrence, on 05 February 2015 the
following is said “there
was NO trust and that we couldn’t reconcile with AW (first
respondent) and that the cause
of action was ‘probably a
hearing that will occur within the next two to three weeks or AW
resigns.”
[32]
The point of this evidence is the following: whether the third
respondent accurately applied
the law of incompatibility is not
critical to the ultimate conclusion. The question for determination
is the following: given the
findings that first respondent’s
behaviour was of an extremely serious magnitude and utterly
unacceptable not only to his
employer, but also to his colleagues,
could it be said that, on this evidence, a reasonable decision-maker
could not conclude that
a dismissal was an appropriate sanction for
the conduct so approved? This is not an appeal; hence a court must be
careful not to
substitute its own preference for a reasoned but
different finding.
[33]
In my view, applying the principles which have been developed with
regard to review in
terms of s145 of the LRA, the decision to dismiss
first respondent, given the findings which were arrived at by both
the court
a quo
and the third respondent on the charges, was
unquestionably one that a reasonable decision-maker could have made
on the facts of
the case. The test is not whether the arbitrator’s
award meets the precision that might be expected from a judgment of
the
Labour Court. It is one thing to argue that such a mistake
justifies a different result on appeal, but a very different approach
must be taken, when in a case such as the present, the decision of
third respondent is the subject of a review.
[34]
For these reasons, the appeal is upheld and the order of the court
a
quo
is set aside and replaced with the following:
‘
The
review application is dismissed
.’
___________________
D Davis
Judge
of Appeal
I
agree
_________________
R Sutherland
Judge
of Appeal
I
agree
________________
J Murphy
Acting
Judge of Appeal
APPEARANCES:
FOR THE APPELLANT:
Instructed by
FOR
THE FIRST RESPONDENT:
[1]
2013 (6) SA 224 (SCA).
[2]
(2014) 35 ILJ 943 (LAC) at para 21.