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[2018] ZALAC 60
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Nelson Mandela Bay Metropolitan Municipality v Independent Municipal & Allied Trade Union (IMATU) obo Johannes Tshabalala and Others (PA8/2017) [2018] ZALAC 60; [2019] 3 BLLR 239 (LAC); (2019) 40 ILJ 1021 (LAC) (3 December 2018)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: PAS/2017
In
the matter between:
NELSON
MANDELA BAY
METROPOLITAN
MUNICIPALITY
Appellant
and
INDEPENDENT
MUNICIPAL & ALLIED
TRADE
UNION (IMATU) obo
JOHANNES
TSHABALALA
First Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
Second Respondent
NTOMBEKHAYA
SESANI N.O.
Third respondent
Heard:
28 August 2018
Delivered:
03 December 2018
Summary:
The employee was dismissed for having been involved in a physical
altercation with a fellow employee - the Bargaining Council
- finding
that the employee was provoked and acted in self-defence -
consequently holding that the dismissal was substantively
unfair.
On
review - the Labour Court findin9 - that the arbitration award was of
the kind that a reasonable decision-maker could have made
and
consequently dismissing the review application filed by the employer.
On
appeal- The LAC finding - employee's account, of how the altercation
unfolded, vacillated. The employee also gave conflicting
instructions
to his representative which brought his credibility and reliability
into sharp focus.
The
Court finding- that the employer established that the two employees
engaged in a fight in the presence of their subordinates,
the
intensity of which went far beyond mere "horse play".
Having had regard to the facts- finding that the employee was
the
aggressor and could not have been provoked - further finding - that
it was clear-that the two employees were equally to blame.
The
Court held - that in our law every person is expected to control
his/her temper. In addition, there is no obligation on an individual
to accept a challenge. Either employee could have walked away from
the scene. Not only to defuse the situation but also to report
the
event to the employer.
The
Court finding - that the misconduct committed by the employee was
sufficiently serious to warrant a sanction of dismissal regardless
of
his length of service and clean disciplinary record.
The
Court concluding that the commissioner's award could not be said to
be one that a reasonable decision-maker could have reached.
The
appeal upheld - the order of the Court a
quo
set
aside and substituted with an order,
inter alia,
th.at
the dismissal of the employee was substantively and procedurally
fair.
Coram:
Phatshoane ADJP, Sutherland JA and Kathree-Setiloane AJA
JUDGMENT
PHATSHOANE
ADJP
[1]
This is an appeal with leave of this
Court against the whole of the Judgment and order of the Labour Court
(per
Lallie
AJ) delivered on 17 June 2016, dismissing the application to review
and set aside the arbitration award dated 09 July 2012
issued under
Case No: ECD031225 by Commissioner Ntombekhaya Sesani ("the
commissioner"), the third respondent, under
the auspices of the
South African Local Government Bargaining Council ("SALGBC"},
the second respondent.
[2]
Mr Johannes Tshabalala, the first
respondent ("the employee"), entered into employment with
Nelson Mandela Bay Metropolitan
Municipality ("the
Municipality"), the appellant, on 10 November 1988. He and Mr
Thomas Ndleleni were assrstant superintendents
at managerial level
supervising a large number of employees. The employee was engaged in
the Roads Section whereas Mr Ndlele11ii
was employed in the Drain
and Storm Water Section. The operations of
the tW()' sections were complementary
and required these employees to
WQrk together on occasion which they refused to do.
[3]
The employee and Mr Ndleleni had
constantly been at loggerheads. Their longstanding conflictual
relationship polarised workers in
their respective sections into
factions. Accordin to Mr Te.try Holmes, the superintendent in the
Drain and Storm Water Section
and the two employees' immediate
supervisor, the feud had a negative impact on service deliwery. The
Municipality unsuccessfully
attempted to resolve their ongoing
hostlfity to no avail. Mr Jeffrey Sawuli, an operation officer
attached to the Roads, Storm
Water, Infrastructure and Engineering
Department, directed a letter to the two antagonists on 28 June 2011
cautioning them to desist
from their unbecoming conduct and were
further warned not to make contact with each other but only through
their supervisor.
[4]
On 02 August 2011 the employee and Mr
Ndleleni were involved in a violent physical altercaijon which lasted
approximately 15 minutes.
They were separated with difficulty by
their subordinates, Messrs Monde Meteza, Mkhululi Ziyokwana and
Vuyisile Ngoza. Mr Ziyokwana
explained that he, and indeed the
others, found their two supervisors wrestling but not trading any
blows. He told them that they
were not supposed to fight at the
workplace.
[5]
The employee was notified around 04
November 2011 to attend a disciplinary hearing scheduled to take
place on 18 November 2011 to
answer to a charge that on 02 August
2011 he became involved in a physical altercation with a fellow
employee, Mr Ndleleni, in
contravention of Annexure "A" to
the SAGLBC Disciplinary Code which encapsulates the standard of
conduct expected of
the employees, in particular, Clause 1.2.9, which
provide that the employees should:
"Refrain
from any rude, abusive, insolent, provocative, intimida)ory or
aggressive behaviour toward a fellow employee or member
of the
public.'
[6]
During the employee's disciplinary
hearing he sought to enter into a plea bargain with the Municipality,
by pleading guilty to the
charge in exchange for a sanction of a
final written warning valid for a period of six months, which was
rejected. In the ensuing
disciplinary enquiry he was found
guilty • charged and dismissed on 17 January
2012. Mr Ndleleni was
also dismissed
on
the same basis as the employee.
[6]
Dissatisfied with the outcome of hitt
discipfinary hearing the employee, assisted by his trade union,
Independent Municipal and
Allied Trade Union (IMATU), referred his
alleged unfair dismis$al dispute to the SALGBC for resolution through
conciliation
and arbitration.
[7]
The employee explained, during the
arbitration, that on that eventful day he instructed hi$ team to
remove some steel pipes from
the storage room that was utilised by Mr
Ndleleni. Ndleleni prohibited the team from carrying out the
employee's orders and locked
the storage room with a padlock. The
employee says he repQrted the incident to Mr Holmes who failed to
direct Mr Ndleleni to open
the storage f cility. He then took it upon
himself to break open the lock to enable his ill access. In the
interim Mr Ndleleni
accosted him, challenging him openly, while
uttering offensive epithets. Mr Ndleleni bumped him on his shoulder
causing his spectacles
to fall. As he picked them up Mr Ndleleni
struck him with a fist. He grabbed him to defend himself. He denied
retaliating. He further
disputed that the Municipality made
sufficient attempts to resolve their unending feud.
[8]
The commissioner found, in her
assessment of the evidence, that
"there
was no evidence from [the Municipality] of the [employee} physically
assaulting or being in physical altercation with
Mr Ndleleni."
She further found that the employee
was simply reacting to an act of excessive provocation on the part of
Mr Ndleleni. $he opined,
with reference to the purported provocation
and the nature of the relationship between the duo, that
"any
reasonable person would have reacted in the same manner
[as the employee] did'.
She found
the employee's version, that as a man it was not easy to walk away
from a fight, to be reasonable. She was of the view
that the employee
was defending himself and therefore it would be hard to accept, under
those circumstances, that the altercation
breached the relationship
of trust.
[9]
The commissioner found the
Municipality's efforts, which were aimed at resolving the ongoing
conflict, to have been insufficient.
In her view, the employee's
suggestion, that he be transferred to another section or department,
was reasonable and had been rebuffed
by the Munieipality without any
proper justification.
[10]
Remarkably, the commissioner found that
there was no altercation between the antagonists in the prelude to
her assessment of the
evidence, however, at the end of her
analysis she stated:
"(f)t
is evident from the evidence
above that the {employee} was involved In an altercation
however, the
circumstances that led to such do not fustify his
dismissal."
Having had regard
to the employee's clean disciplinary record and thirty years of
service she was of the view that the sanction
of dismissal was too
harsh and reinstated him into the Municipality's employ.
[11]
The Munacipality launched an application
to review and set aside the arbitration award with the Labour Court
on the grounds,
inter alia,
that
the commissioner misconstrued the important aspects of the evidence;
she failed to apply her mind to the Municipality's version
and
thereby perpetrating a gross irregularity in the conduct of the
arbitration proceedings. It was contended that, had the commissioner
adopted an appropriate and balanced approach
to the evidence, she would have been
compelled to conclude that the Municipality had discharged its onus
of establishing that the dismissal was fair.
[12]
The Court a
quo
was unpersuaded that the
commissioner erred in finding that the employee had been provoked by
Mr Ndleleni. It found the altercation
of 02 August 2011 to have been
preceded by Mr Ndleleni's conduct of locking up the storage room
thereby making it impossible for
the employee's team to comply with
his instructions.
[13]
The Court further found that the
commissioner's error in finding that the employee did not retaliate
was of no moment because the
employee was not charged with assault
but with having been involved in an altercation with Mr NdlelenL The
Court was of the view
that
"an
employee does not necessarl1y commit misconduct by being involved in
an altercation because
a
victim
of assault may also be involved in an altercation."
The
Court held that the commissioner's finding, that the Municipality did
not adequately resolve the long standiing conflict between
the two
employees, was beyond reproach.
[14]
The Court concluded that the arbitration
award was of the kind that a reasonable decision-maker could have
made and consequently
dismissed the review.
[15]
Before us, the Municipality contended
that the Court
a quo
erred
by not finding that:
15.1
The employee and Mr Ndleleni had engaged in a physical
altercation in which the employee enthusiastically participated
and both had been fairly dismissed;
15.2
The brawl occurred after simmering tensions between the wo
which disrupted the operations of their departments
after which they
were warned to avoid further confrontation. It was argued that the
brawl amounted to a fight which constituted
a breach of the
applicable disciplinary code and carried the potential sanction of
dismissal;
15.3
The commissioner wrongly concluded that
the employee's culpability was diminished because Mr Ndleleni
provoked him and that the
employee was acting in self-defence. These
findings, it was contended, were contradicted by the employee's own
evidence and was
predicated on a misapprehension of the circumstances
in which these defences may be raised in the workplace context.
15.4
The commissioner misconstrued the
evidence in the following respects:
15.4.1
when she held that there was no evidence
that the employee assaulted or was in a physical altercation with Mr
Ndleleni.
15.4.2
when she found that the provocation had
been excessive. She also erred in finding that the evidence by the
employee, that he was
provoked, was unchallenged and in making the
observation that any reasonable person would have reacted as the
employee did and
that "as a man he could not walk away from the
fight."
15.4.3
when she found that the employee was "a
modest and honest employee" whom the Municipality could trust
and rely upon. In
this regard, 'it was argued that the commissioner
failed to make any credibility findings or assess the probabilities
of the employee's
version. he also ignored the deleterious and
intolerable effect the feud had on the employer-employee
relationship.
15.5.4
when she took the Municipality to task for not sufficiently
intervening in the dispute between the two senior employees and
failing to consider the practicability of an award of reinstatement.
[16]
Mr Le Roux, for the employee, argued
that Mr Ndleleni was the aggressor whose actions gave rise to the
sustained attack on the employee
which legally entitled him to defend
himself. He further argued that there was insufficient evidence
before the commissioner suggesting
that the employee ought to have
been found guilty of intimidation or assault.
The fact that the
employee may have hit Mr
Ndleleni, in the course of defending himself, does not change the
character of the incident,
the argument went.
Analysis
[17]
The review largely turned on whether the
commissioner had correctly concluded that the employee was not
involved in a physical altercation
with his co-worker. It should
therefore be determined whether the commissioner misdirect herself or
not.
[18]
The employee's account, of how the
altercation unfolded vacillated. He also gave conflicting
instructions to his representatives,
which brings his credibility and
reliability into sharp focus. To demonstrate this:
18.1
He
pleaded guilty to having been involved in a physical altercation with
Mr Ndleleni at the internal disciplinary hearing.
18.2
At arbitration, in his opening
address, the employee's trade union representative submitted:
"but
my instructions are that especially Mr Tshabalala's plea was that he
doesn't deny that he was
involved in a fight, but what he pleaded guilty to- what he thought
he pleaded guilty to, [was] that he
defended himself and in that
process, by defending himself, that he also hit the other
emplovee.......he thought he is being
attacked and while
forming that intension to defend himself, he thought to defend
himself. is to hit Mr Ndleleni back
and that's what happened."
18.3
In a sworn statement the employee
made on 02 September 2011, approximately a month following the
altercation, he said:
"..Mr
Ndleleni was walking up and down carrying equipment while I was only
standing and observing what was going on. The next
moment Mr Ndleleni
hit me with his left shoulder and I asked him what he was doing. He
said that I could see what happened. Without
saying anything I moved
a
little
backwards and he hit me with his fist in my face to such an extent
that my glasses fell on the ground
but
I immediately hit back.
We kept _on
hitting each other
until Messrs Mateza, Ziyokwana and Ngoza intervened and
separated us."
[19]
Despite his guilty plea, his sworn
statement, and opening remarks by his representative, when presenting
his evidence at arbitration,
the employee tried very hard to deny
that he traded any blows with Mr Ndleleni. They merely
"clinched
together''
because
"each
one did not want to be hit by the other one."
He
did not disavow what is set out in his sworn statement that he
"immediately hit back."
Instead he said what is contained in
his statement was consistent with his evidence in-chief. Under
cross-examination he made
a complete about-turn
by
recanting what he said in his sworn
statement. He claimed that the security department that took his
statement recorded it incorrectly:
"I
didn't say we hit each other...'
[20]
As already alluded to, the Court
a
quo
reasoned that it was unimportant
that the commissioner erred insofar as she found that the employee
did not hit Mr Ndleleni because,
in any event, the employee was not
charged with assault but with having been involved in an altercation.
[21]
In
an internal disciplinary enquiry a charge need not be meticulously
drawn up as in a criminal court. As Le Roux & Van Niekerk
say in
their work
The
South African Law of Unfair Dismissal
[1]
:
'Here
the rule appears to be that, provided a disciplinary rule has been
contravened, that the employee knew that such conduct could
be the
subject of disciplinary proceedings, and that he was not
significantly prejudiced by the incorrect characterization,
discipline appropriate w the offence found to have been
committed may be imposed.'
(My emphasis)
[22]
it was sufficient for the employer to
establish that the employee and Mr Ndleleni had engaged in a fight in
the presence of their
subordinates, the intensity of which went far
beyond mere ''horse play." This it did. Regardless
of how
one labels it, the evidence overwhelmingly
shows that there was a fight or an intense physical altercation
between
the employee and Mr Ndleleni. What then remains to be
considered is whether the employee was provoked which may ameliorate
the
sanction and/or acted in self-defence to which if established
would exonerate him.
[23]
It was not in dispute that, as a
consequence of the animosity towards each other, the employee and Mr
Ndleleni used separate storage
rooms. They had been warned to
communicate with each other only through their supervisor. Clearly
acting contrary to the authority
of his immediate supervisor, the
employee had the audacity to break open the padlock on the door of Mr
Ndleleni's storage room
to give his team access to the facility and
remove some steel pipes. According to Mr Holmes the pipes were
ordinary scrap material
and it was not urgent or essent that they be
removed. To my mind, the employee's belligerent attitude described
above must have
ignited the furore of 02 August 2011 and the events
that subsequently followed. He knew that, because of their intense
animosity,
Mr Ndleleni would not take kindly to his action. He was
therefore the aggressor and could not have been provoked.
[24]
The commissioner was plainly wrong in
finding that the employee's involvement in the fight was excused by
provocation. Even more
inexplicable is her finding that the
provocation had been excessive whereas it is clear that the two
employees were equally to
blame. It bears reminding that the employee
did not raise provocation as a defence. That defence was an
ex
post facto
attempt at justification
for his misdemeanour.
[25]
On the basis of the aforegoing analysis
the Court
a quo
erred
in finding that the altercation had been precipitated by Mr
Ndleleni's conduct in locking up the storage room and thereby
making
it impossible for the employee's team to comply with the employee's
instruction.
[26]
The
emloyees
further argument that he acted in
self-defence cannot avail him. The commissioner's conclusion
that:
"Any reasonable
person would have reacted in the manner [the employee]
did
and that "as a
man
he could not walk away from the "fight",
goes
against the grain of conduct expected of an employee. In our
law every person is expected to control his/her
temper.
In addition, there is no obligation on an individual to accept a
challenge. Either employee could have walked
away from
the scene. Not only to defuse the situation but also to report the
event to Mr Holmes.
[27]
By questioning the adequacy of the
Municipality's efforts at resolving or mediating the enduring
conflict between the employee and
Mr Ndleleni, as a further excuse
for what transpired on 02 August 2011, it is clear that the
commissioner did not bring her mind
to bear on the following aspects
of the evidence:
27.1
First, Holmes explained that, at the
behest of the Municipality, there were several unsuccessful
conciliatory meetings between the
two employees over the years in
respect of their feud.
27.2
Second, the two employees were referred
to the Employee Assistant Practitioner (EAP) to assist them in
reconciling their differences.
27.3
Third, Mr Sawuli testified that the two
employees had been counselled on several occasions by the
superintendent, Human Resources,
and by himself.
27.4
Fourth, apparent from the employer's
letter dated 28 June 2011 the employee was informed,
inter
alia,
that the canflictuaf
relationship could no longer be tolerated.
27.5
Fifth, he was warned and was thus was
acutely aware that a further incident would lead to a formal
disciplinary action being taken
against him.
[28]
Mr Sawuli also expJained, albeit
tersely, that the two employees could not be moved to other sections
because the operations of
their sections were very technical in
nature. What further conceivable action could the Municipality
possibly take to accommodate
tl'le two employees. I am persuaded that
in holding that the employee ought to have been moved to an entirely
new section or department
of the Municipality the commissioner
imposed an unreasonable obligation on the employer.
[29]
Although the Municipality submitted that
the review was not directed at the sanction due to its subjective
nature, it contended
that the commissioner erred by not considering
whether the employment relationship had not been rendered intolerable
at the time
of the dismissal and whether an award of reinstatement
was practicable.
[30]
The employee had been in the service of the Municipality for over 30
years with a clean disciplinary record. In
Toyota
SA Motors (Pty) Ltd v Radebe
&
others,
[2]
this
Court made a point that, although a long period of service of an
employee will usually be a mitigating factor where such employee
is
guilty of misconduct, there are certain acts of misconduct which are
of such a serious nature that no length of service can
save an
employee who is guilty of them from dismissal.
[31]
Clause 2.7 of Annexure "A" of the SALGBC Disciplinary
Procedure and Code Collective Agreement provides: ':As
a
guideline, an employee may be dismissed on the first occasion for,
inter alia, intimidation, fighting and/or assault.
[32]
The commissioner's finding that the employee was "a
modest
and honest employee, whom the [Municipality] could trust'
is not
borne out by the evidence. This finding ignores that the fray was in
full view of the two employees' subordinates whom they
were supposed
to lead by being exemplary. The finding does not take into account
the longstanding feud between the two and the
disruptive effect that
their conduct had on the operations of the Municipality through the
years. In my view, the misconduct committed
by the employee was
sufficiently serious to warrant a sanction of dismissal. His length
of service and clean disciplinary record
cannot, in the premises,
save him from dismissal.
[33]
On this analysis, the commissioner's award cannot be said to be one
that a reasonable decis1on-maker could have reached. The
Court
a
quo
erred in finding to the contrary. The corollary of this is
that its order falls to be set aside.
[34]
Regard being had to the requirements of law and fairness I am not
swayed that the cost should follow the result of the proceedings
in
the Court
a quo
and in this appeal. The arbitration award and
the judgment of the Court a
quo
may have motivated the
employee to resist the review and the appeal. In the result, I make
the following order.
Order
1.
The
appeal is upheld with no order as to costs.
2.
The order of the Court a
quo
is set aside and substituted with
the following:
"1.
The review application filed by Nelson Mandela Bay Metropolitan
Municipality, the applicant, is hereby granted;
2.
The arbitration award dated 09
July 2012 issued under Case No: ECD031225 by Commissioner
Ntombekhaya.·
Sesani
the
second respondent, under the auspices of the South African Local
Government Bargaining Council ("SALGBC'J, the first respondent,
is reviewed and set aside;
3.
The dismissal of Mr Johannes
Tshabalala, the third respondent, by Nelson Mandela Bay Metropolitan
Municipality was substantively
and procedurally fair;
4.
Mr Johannes Tshabalala's unfair
dismissal claim is dismissed;
5.
No order is made
ss
to costs."
MV
Phatshoane
Acting
Deputy Judge President - The Labour Appeal Court
Surtherland
and Kathree Setiloane JJA concur in the judgment of Phatshoane ADJP
APPEARANCES:
FOR
THE APPELLANT: Adv Pattington
Instructed
by Gray Moodlier Attorneys
FOR
THE FIRST
AND
SECOND RESPONDENT: Adv FE Le Roux
Instructed
by Kaplan Blumberg Attorneys
[1]
PAK le Roux & Andre van Niekerk
The
SA Law of Unfair Dismissal
(Juta
& Co 1994) at 102.
[2]
(2000) 21
/U
340
(LAC) at 344 paras 15-16