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[2011] ZALCCT 2
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City of Cape Town v South African Local Government Bargaining Council and Others (C490/2009) [2011] ZALCCT 2; [2011] 5 BLLR 504 (LC) (4 February 2011)
Page
17
of
20
C490/2009
Reportable
and of interest to other Judges
THE LABOUR COURT OF SOUTH AFRICA
(HELD IN CAPE TOWN)
CASE NO:
C490/2009
In the matter between:
CITY OF CAPE TOWN
….............................................................................
APPLICANT
v
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL
…..............................................................
1
ST
RESPONDENT
D WOLLFREY NO
…........................................................................
2
ND
RESPONDENT
SOUTH AFRICAN MUNICIPAL WORKERS
UNION
…...................
3
RD
RESPONDENT
NS NCAMANE
…..............................................................................
4
TH
RESPONDENT
JUDGMENT
AC BASSON, J
This was an application to review and
set aside an award by the 2
nd
respondent (“the
arbitrator”) in terms of which it was found that the dismissal
of the 4
th
respondent – Ms. M N Ncamane
(hereinafter referred to as “the respondent”) was
procedurally fair but substantively
unfair. The arbitrator ordered
the reinstatement of the respondent in her previous position despite
a finding that the respondent
was found guilty for gross dishonesty
in having obtained a false driver’s license some 9 years
earlier.
On 19 August 2010 this court reviewed
and set aside the award and replaced it with an order that the
dismissal was substantively
fair.
The sole basis upon which the
dismissal was found to be substantively unfair was the fact that the
arbitrator was of the view
that although the respondent was guilty
as charged, dismissal was unjustified and unfair. The review of the
applicant was thus
primarily directed against the finding of the
arbitrator in respect of sanction.
The applicant (the City of Cape Town)
argued that the award was one which no reasonable arbitrator could
make in that he (the
arbitrator) had failed to apply his mind to
various important and relevant considerations in aggravation of
sanction.
The award
The arbitrator found that the
respondent was guilty in that she had presented a fake Namibian
driver’s license to the South
African licensing authorities
for conversion to a South African license. The criminal offence of
the respondent (and of four
other employees of the applicant) was
uncouvered after the Scorpions had conducted investigations in
various parts of the public
service into such licensing fraud. The
arbitrator concluded that the respondent was a party to the
fraudulent issuing of a driver’s
license.
The arbitrator further held that,
although the misconduct was committed outside of the workplace,
there is a sufficient nexus
between the employer’s business
and the respondent’s conduct. The arbitrator was also of the
view that, given the
respondent’s senior management position
and the fact that her misconduct involved the subversion of a system
in which the
authorities and public place their trust in her, the
applicant (the City of Cape Town) was entitled to discipline her.
The arbitrator,
however, concluded that, although the applicant had
been warranted in taking disciplinary action against her, it was not
fair
to impose a sanction of
dismissal
on her. In reinstating
her (although not retrospectively), the arbitrator “
permitted
”
the applicant to consider imposing a lesser sanction upon the
respondent.
In respect of sanction the applicant,
inter alia
, argued that this award had presented the
applicant with a problem in that it was now faced with two
conflicting judgments of
the same bargaining council on virtually
the same facts. In the other arbitration an employee was dismissed
and her dismissal
was held to be fair although the said employee was
employed as a cashier and at a more junior level to the respondent.
Relevant facts
It appears that the applicant had
submitted documentation to the Kuils River Driving License Testing
Centre on 21/22 June 2000
which indicated that she was the holder of
a Namibian driver’s license. The relevant authorities accepted
the documentation
in good faint and issued the respondent with a
South African credit card type driver’s license. The Namibian
Roads Authority
confirmed that the said license was issued to a
certain A Awala on 6 May 1998 and not to the respondent. The
respondent was thereafter
traced and interviewed. She admitted that
she had never obtained a driver’s license in Namibia and
instead averred that
she was tested in the prescribed manner at the
Kuils River Traffic Department. The E-Natis record system was
accessed and it
was determined that the origin for the issuing of
the respondent’s driver’s license was a conversion of
the driver’s
license that was issued by the Namibian Roads
Authority. There is no authority of the respondent ever having been
tested nor
was there any record of the fact that the respondent had
made an appointment for the driving test. It was also noted that the
respondent had applied for a learner’s license on no fewer
than for occasions and that the learner’s license was
eventually issued to her on 13 December 1999 at Elliot Traffic
Department. The arbitrator referred to the fact that it was found
that the respondent had presented a false Namibian driver’s
license to the Kuils River authority for conversion and that
that
was contrary to section 68 of the National Road Traffic Act, act 93
of 1996. In paragraph [24] of the award the arbitrator
concluded as
follows:
“
For the reasons set out
above, I am satisfied that the City has proven on a balance of
probabilities that Ncamane [the respondent]
was party to the
fraudulent issue of a driver’s license in or about June 2000.”
The following finding by the
arbitrator is also instructive. The arbitrator concluded as follows:
“
[28] It is not disputed that
Ncamane holds a senior management position requiring a high degree of
trust. As head of contract administration
Ncamane is responsible for
managing contracts for the supply of goods and services within the
City. The city’s contention
is that Ncamane has, by her
conduct, rendered herself no longer trustworthy to do her job.
[29] I am persuaded by the
employer’s argument. The conduct in question involves the
dishonest subversion of a system in which
the authorities, and the
public at large, invest their trust and need to be able to invest
their trust. In her workplace Ncamane
has control over a system in
which, similarly, the employer must be able to place its confidence.
An employee who holds such a
potion of trust has a duty to refrain
from conduct (both inside and outside of the workplace) that will
undermine the trust placed
in her.
[30] I am satisfied that on account
of her position at the time the offence became known to the employer
and the nature of the misconduct
the employer had the necessary
jurisdiction to discipline Ncamane.”
The arbitrator, however, as already
pointed out, decided that the sanction of dismissal was too extreme
and for the following
reasons:
The fraud committed was not within
the workplace or in relation to her duties. The employer did not
suffer any loss and direct
prejudice. The arbitrator acknowledged
that although this did not disqualify her from disciplinary
measures, it did have a
bearing on the sanction that may be
imposed.
The applicant did not consider
whether a sanction short of dismissal would have been more
appropriate especially where the misconduct
took place outside of
the workplace. The arbitrator was of the view that where a
disciplinary offense involves conduct away
from the workplace, the
employer should, in fairness “
give even stronger
consideration to whether alternatives short of dismissal would
address its legimate interests”.
The misconduct took place 9 years
again and it cannot be said that it could destroyed the trust
relationship today.
As already pointed out, the
arbitrator held that the sanction of dismissal was unfair. The
respondent was reinstated and the question
of a sanction short of
dismissal was remitted back to the applicant for determination.
The applicant contended that it was
not a reasonable sanction in light of the fact that the relationship
of trust had irretrievably
broken down. More in particular, it was
argued that reinstatement was inappropriate in the following
circumstances:
(i) The respondent did not admit the
conduct with which she was charged.
(ii) The respondent persisted during
the disciplinary hearing and at arbitration with a version of events
which was found to be
untrue.
(iii) The arbitrator found that the
applicant had proven the charge which was one of gross dishonesty.
(iv) The respondent had been employed
in a position which demanded impeccable trust credentials.
Is the award reviewable?
As already pointed out, the review is
principally against the reasonableness of the decision of the
arbitrator to interfere with
the employer’s decision to
dismiss. In essence it was argued on behalf of the applicant that
the arbitrator had failed
to apply his mind to a number of relevant
facts and in the process attached undue weight to various irrelevant
facts. As a result
the arbitrator arrived at a conclusion that is so
unreasonable that no reasonable arbitrator could have come to the
same conclusion
had he applied his mind to the evidence before him
which the arbitrator failed to do.
The test of review is now firmly
established in our law. See
Sidumo
& Another v Rustenburg Platinum Mines Ltd & Others
1
where the Court held that the
question be asked by the review court is the following: “
Is
the decision reached by the commissioner one that a reasonable
decision maker could not reach?
”
2
In respect of sanction it is accepted
that it is not the task of the commissioner or the arbitrator to
merely rubberstamp the
sanction imposed by the employer following a
disciplinary hearing. The commissioner or arbitrator should apply
his or her own
sense of fairness in respect of whether or not
dismissal is an appropriate sanction. Although it is the employer
that dismisses,
it is the commissioner who must decide whether or
not the dismissal was fair. See in this regard
Sidumo
(
supra
),
where the Constitutional Court held as follows in regards the
elements of the employer's discretion, and fairness:
“
[79] To sum up. 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.
…
[177] Equally true is that when an
employer determines what is an appropriate sanction in a particular
case, the employer may have
to choose among possible sanctions
ranging from a warning to dismissal. It does not follow that all
transgressions of a particular
rule must attract the same sanction.
The employer must apply his or her mind to the facts and determine
the appropriate response.
It is in this sense that the employer may
be said to have discretion.
[178] But recognizing that the
employer has such discretion does not mean that in determining
whether the sanction imposed by the
employer is fair, the
commissioner must defer to the employer. Nor does it mean that the
commissioner must start with bias in favour
of the employer. What
this means is that the commissioner, as the CCMA submitted, does not
start with a blank page and determine
afresh what the appropriate
sanction is. The commissioner's starting-point is the employer’s
decision to dismiss. The commissioner's
task is not to ask what the
appropriate sanction is but whether the employer's decision to
dismiss is fair.
[179] In answering this question,
which will not always be easy, the commissioner must pass a value
judgment. However objective
the determination of the fairness of a
dismissal might be, it is a determination based upon a value
judgment. Indeed the exercise
of a value judgment is something about
which reasonable people may readily differ.”
From this decision it is clear that
the commissioner or arbitrator is not required to defer to the
decision of the employer. The
arbitrator is, however, also not
called upon to decide afresh what he or she would have done. The
arbitrator must determine what
is fair and base that on a
consideration of all the evidence and the competing interest of the
parties. Ultimately the test is
whether or not the decision reached
by the arbitrator is one that a reasonable decision maker could not
reach. In considering
whether or not
the
decision is reasonable, the reviewing court must be mindful of the
fact that there exists a range of possible reasonable outcomes.
The
reviewing court must also be mindful of the fact that the question
is not whether or not the reviewing court agrees with
the decision
by the commissioner. See
Fidelity
Cash Management Services v CCMA & Others
3
where the Labour Appeal Court said
the following in respect of reviews:
“
[98] It
will often happen that, in assessing the reasonableness or otherwise
of an arbitration award or other decision of a CCMA
commissioner, the
Court feels that it would have arrived at a different decision or
finding to that reached by the commissioner.
When that happens, the
Court will need to remind itself that the task of determining the
fairness or otherwise of such a dismissal
is in terms of the Act
primarily given to the commissioner and that the system would never
work if the Court would interfere with
every decision or arbitration
award of the CCMA simply because it, that is the Court, would have
dealt with the matter differently.
Obviously, this does not in any
way mean that decisions or arbitration awards of the CCMA are
shielded from the legitimate scrutiny
of the Labour Court on review.
[99] In my view Sidumo attempts to
strike a balance between, two extremes, namely, between, on the one
hand, interfering too much
or two easily with decisions or
arbitration awards of the CCMA and, on the other refraining too much
from interfering with CCMA’s
awards or decisions. That is not a
balance that is easy to strike. Indeed, articulating it may be
difficult in itself but applying
it in a particular case may tend to
even be more difficult. In support of the statement that Sidumo seeks
to strike the aforesaid
balance, it may be said that, while on the
one hand, Sidumo does not allow that a CCMA arbitration award or
decision be set said
simply because the Court would have arrived at a
different decision to that of the commissioner, it also does not
require that
a CCMA commissioner’s arbitration award or
decision be grossly unreasonable before it can be interfered with on
review –
it only requires it to be unreasonable. This
demonstrates the balance that is sought to be made. The Court will
need to remind
itself that it is dealing with the matter on review
and the test on review is not whether or not the dismissal is fair or
unfair
but whether or not the commissioner’s decision one way
or another is one that a reasonable decision-maker could not reach
in
all of the circumstances.”
Off-duty misconduct
The respondent argued,
inter
alia, that the award is
not reviewable and that it was reasonable to have arrived at the
decision the arbitrator arrived at where
the misconduct took place
outside of the workplace. It was argued that the finding of the
arbitrator that the misconduct that
occurred outside of the
workplace had no direct impact upon the applicant and therefore
militated against the sanction of dismissal,
was reasonable. The
respondent further argued that misconduct against a third party is
not qualitatively the same as misconduct
directed against one’s
own employer particularly in light of the fact that the respondent
did not attempt to deceive her
own employer particularly as the use
of a driver’s license was not part of her duties. It was
further submitted that the
arbitrator properly considered the role
of an alternative sanction, short of dismissal and properly took
into account that the
misconduct took place nine years ago. The
Court was referred to,
inter
alia, Hoechst (Pty) Ltd v Chemical Workers Industrial Union &
Another
.
4
In respect of the latter case it
should, however, be pointed out that the court (in that matter) held
on the facts that there
was not sufficient evidence to conclude that
the misconduct had the potential of disrupting the future operations
of the employer.
5
The court has also held in various
cases that off-duty misconduct can constitute a valid reason for
dismissal. See,
inter alia,
Custance v SA Local Government Bargaining Council & Others
6
where the Court held that off-duty
racism impacted on the workplace.
7
Appropriate sanction where
dishonesty is an element of the misconduct
The important question to be
considered in this matter is whether or not the arbitrator arrived
at a reasonable decision when
he arrived at the decision that
dismissal was not an appropriate sanction in the circumstances of
this case.
In evaluating the reasonableness of
sanction it must, in my view, be borne in mind that the respondent
had fraudulently obtained
a South African driver’s license by
representing to the licensing authority that she had a valid
Namibian driver’s
license. As such her actions entailed a high
degree of dishonesty and also an element of corruption insofar as
she could not
have obtained her Namibian license without some
complicity on the part of the relevant issuing authority. The
respondent had
been using this fraudulently obtained driver’s
license on an ongoing basis for 9 years until 2008 when her fraud
was uncovered.
Had she not been caught out she probably would have
continued to use this license.
Her actions should further be viewed
against the fact that the respondent occupied a position in the
workplace which requires
her to be honest. The question which needs
to be answered is whether or not her conduct impacted on her
employment relationship
in such a way that her actions resulted in
the breakdown of the trust relationship between her and her
employer.
Trust
is considered to be an important element of the employment
relationship whether or not the employee is employed in private
business or within the public sector. Pillay, JA stated the
following in this regard in
Miyambo
v CCMA
&
others
:
8
“
[13]
It is appropriate to pause and reflect on the role that trust plays
in the employment relationship. Business risk is predominantly
based
on the trustworthiness of company employees. The accumulation of
individual breaches of trust has significant economic repercussions.
A successful business enterprise operates on the basis of trust. In
De Beers Consolidated Mines Ltd v CCMA & others
[2000]
9 BLLR 995
(
LAC)
at paragraph [22], the court, per Conradie JA, held the following
regarding risk management:
“
Dismissal is
not an expression of moral outrage; much less is it an act of
vengeance. It is, or should be, a sensible operational
response to
risk management in the particular enterprise. That is why supermarket
shelf packers who steal small items are routinely
dismissed. Their
dismissal has little to do with society’s moral opprobrium of a
minor theft; it has everything to do with
the operational
requirements of the employer’s enterprise.”
This court has also viewed dishonesty
in a serious light and has come to the conclusion in most instances
that it results in a
breakdown of the trust relationship between the
parties. In
Hoch v Mustek
Electronics (Pty) Ltd
9
the court held the dismissal of an
employee to be fair where she had misrepresented her qualifications
to her employer. The court
held that this was sufficient to warrant
dismissal notwithstanding the fact that she had a long service
record and was honest
in her work and notwithstanding the fact that
she had misrepresented qualifications that were irrelevant to her
position as a
debtor’s clerk.
10
In
Toyota
SA Motors (Pty) Ltd v Radebe & Others
11
the LAC went as far as to hold that
certain acts of misconduct were so serious that no mitigating factor
could save the employee
from dismissal. One example would be where
the employee is guilty of gross dishonesty which the Court defined
as follows:
“…
when it is said
that the first respondent was guilty of gross dishonesty, that must
mean dishonesty of such a degree (if one can
speak of degrees of
dishonesty) as to be completely indefensible on any ground.”
12
In coming to a conclusion that the
dishonesty was gross the court took into account the employee had
shown no remorse for his misconduct
and that he had persisted in
lying to his employer in the legal proceedings that followed.
13
In various other decisions the courts
have similarly held that dismissal is appropriate in circumstances
where the misconduct
involved elements of dishonesty. See,
inter
alia
,
Kalilk
v Truworths (Gateway) & Others
14
where the employee removed a make-up
tester from a store without permission. In
Hullett
Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry &
Others
15
the employee was found guilty of
unauthorized removal of scrap metal from the premises. In both of
these cases the court was of
the view that there was no scope for
the application of mitigating factors. In
Shoprite
Checkers (Pty) Ltd v CCMA & Others
16
that mitigating factors such as
length of service or the relatively insignificant value of items
pilfered would not hold sway
in assessing sanction. Once dishonesty
is established, it is deleterious of the trust relationship. In
De
Beers Consolidated Mines Ltd v CCMA & Others
17
the LAC did, however, hold that
mitigating factors could justify a sanction short of dismissal even
where dishonesty was established.
Conradie JA in a minority
judgment, however, held that where an employee shows no remorse,
that would be a factor in coming to
a conclusion that the trust
relationship cannot be mended:
“
This brings me to remorse.
It would in my view be difficult for an employer to re-employ an
employee who has shown no remorse. Acknowledgment
of wrongdoing is
the first step towards rehabilitation. In the absence of a
recommitment to the employer’s workplace values,
an employee
cannot hope to re-establish the trust which he himself has broken.
Where, as in this case, an employee, over and above
having committed
an act of dishonesty, falsely denies having done so, an employer
would, particularly where a high degree of trust
is reposed in an
employee, be legitimately entitled to say to itself that the risk of
continuing to employ the offender is unacceptably
great.”
18
The majority, however, held on the
specific facts of that case that, although the employees had
dishonestly claimed overtime for
working on a public holiday, their
misconduct could not be categorized as serious. In this case the
arbitrator was allowed to take
into account long service in deciding
whether or not to impose a sanction short of dismissal.
In
Toyota
SA
Motors
(Pty) Ltd v Radebe and others
19
Zondo AJP (as he
then was), however, held that certain acts of misconduct such as
gross dishonesty warrants dismissal despite
the fact that that
employee has along service record with the employer:
“
Although
a long period of service of an employee will usually be a mitigating
factor where such employee is guilty of misconduct,
the point must be
made that 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. To my mind one such clear act of
misconduct is gross dishonesty
.”
In
Hulett
Aluminium (Pty)
Ltd v Bargaining Council for the Metal Industry
&
Others
20
the company had a
policy allowing its employees to purchase scrap products from it.
The employee did not comply with the specific
procedure and
dispatched a sealed box containing company property.
At
para 42
Molahlehi
J held as follows:
“…
the
presence of dishonesty tilts the scales to an extent that even the
strongest mitigating factors, like long service and a clean
record of
discipline are likely to have minimal impact on the sanction to be
imposed. In other words whatever the amount of mitigation,
the
relationship is unlikely to be restored once dishonesty has been
established in particular in a case where the employee shows
no
remorse. The reason for this is that there is a high premium placed
on honesty because conduct that involves corruption by the
employees
damages the trust relationship which underpins the essence of the
employment relationship.”
The LAC in
Miyambo
(
supra
)
referred to various decisions of the Labour and Labour Appeal Court
(
Shoprite Checkers
(
supra
);
Toyota SA Motors
(
supra
)
and
Hulett Alliminium
(
supra
)
and held that it is clear from those judgments that the courts place
a high premium on honesty in the workplace. The court also
took into
account that the employee showed no remorse for what he did (the
employee had stolen scrap metal). The court also referred
to
Rustenburg
Platinum Mines Ltd (Rustenburg Section) v NUM & Others
21
where the LAC
endorsed the sanction of dismissal where the employee was found
guilty of misconduct in that she had taken cooked
meatballs. She was
subsequently dismissed. In that case the court concluded that
Miyambo had undoubtedly breached the relationship
of trust built up
over many years of honest service and concluded that the dismissal
was fair.
It would appear from a reading of
Sidumo
,
that the Constitutional Court accepted that where dishonesty is not
an element of the misconduct dismissal may not be an appropriate
sanction and that progressive discipline may be appropriate.
22
Was dismissal an appropriate
sanction in the present matter?
In the present matter the respondent
made herself guilty of dishonesty conduct. From the cases cited, it
appears that dishonest
conduct does go to the heard of the
employment relationship and is destructive of it. Where misconduct
involving dishonesty is
considered to be gross or serious, there may
not be scope for mitigating factors. The converse also applies.
Where misconduct
involves an element of dishonest conduct which is
not gross or serious, mitigating factors may (and in fact should) be
considered
in determining a sanction short of dismissal. Whether or
not the dishonest conduct is not relevant to the employee’s
duties
is not necessarily decisive: The focus is on the effect of
the conduct on the trust relationship between the parties. The fact
that an employee shows remorse for his or her actions and takes
responsibility for his or her actions may militate depending
on the
circumstances against imposing the sanction of dismissal. The
converse also applies, dismissal may be an appropriate sanction
where the employee commits an act of dishonestly, falsely denies
having done so and then shows no remorse whatsoever for having
done
so.
In the present case the respondent
was grossly dishonest. In procuring her driver’s license she
also committed an act of
corruption. She deceived the State in order
to obtain a false driver’s license. Her misconduct also
constitutes a criminal
offence. What makes matters worse is the fact
that she persisted with driving with a false driver’s license
for a period
of 9 years. Had she not been caught out she undoubtedly
would have continued using the fraudulently obtained driver’s
license.
It is also important to point out that the respondent had
persisted with her lying not only in the course of the
investigations
but also at her disciplinary hearing and in her sworn
testimony before the arbitrator. There is no cross review in these
proceedings.
The respondent therefore clearly accepts the findings
of the arbitrator. She merely submitted that her criminal offence
was “
very technical
” in nature.
I am of the view that the applicant
as an organ of state is entitled to expect of an employee,
especially where the employee is,
as was the case in the present
matter, employed in a position of trust. The respondent was
entrusted with dealing with public
funds and the applicant is, in my
view, entitled to require her to be beyond reproach. The
respondent’s fraud was characterized
by a high degree of
dishonesty and corruption. She was prepared to deceive the State for
her own ends and then benefit from her
conduct on an ongoing basis.
The respondent showed no remorse for her actions. The fact that
there was no direct loss to the
applicant is irrelevant. Also
irrelevant is the fact that the respondent was only found out after
nine years. The fact that she
was only found out after nine years
certainly cannot be a mitigating factor as was held by the
arbitrator. The fact remains that
the respondent benefited from her
(criminal) conduct on an ongoing basis.
In the event the award is reviewed
and set aside and replaced with a finding that the dismissal was
substantively fair. I can
find no reason why costs should not be
awarded against the third and fourth respondents jointly and
severally, the one paying
the other to be absolved.
AC BASSON, J
DATE OF ORDER:
19
Augustus 2010
DATE OF REASONS:
4
February 2011
FOR THE APPLICANT:
Adv
GA Leslie. Instructed by Webber Wentzel
FOR
THE RESPONDENT:
Adv J Whyte. Instructed by Cheadle, Thompson
& Haysom
1
(2007)
28
ILJ
2405
(CC).
2
Ibid
at paragraph [110].
3
[2008]
3 BLLR 197
(LAC).
4
(1993)
14
ILJ
1449 (LAC).
5
Ibid
at 1460:
“
Second
respondent was guilty of unauthorized possession of a co-worker's
radio-tape deck. The nature of the finding was such that
second
respondent’s reliability as an employee was not put into
doubt. Furthermore, the finding did not affect the nature
of the
work performed by second respondent and his capacity to perform such
work. Neither the size of appellant nor the nature
of the work done
by appellant nor its position in the market necessitated any
disciplinary steps being taken against second respondent.
As far as
the impact which the misconduct had on appellant's normal operations
and on its capacity to perform and carry out its
functions
insufficient evidence was led to establish that second respondent's
misconduct had a deleterious affect thereon. Such
evidence as was
presented merely indicated that a few employees (of which only three
could be named) expressed concern about
the safety of their property
on this premises. The evidence does not suggest a disruption or
potential disruption of the appellant's
operations.”
6
(2003)
24 ILJ 1387 (LC).
7
“
[29]
In Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp &
others (2002) 23 ILJ 863 (LAC);
[2002] 6 BLLR 493
(LAC), the court
found that calling a person a 'kaffir' was a dismissible offence. Mr
Chetty submitted that the circumstances
are distinguishable in this
case. I accept that Kapp's conduct was more gross. However, in both
cases the derogatory terms used
manifest a deep-rooted racism which
has no place in a democratic society. Whether the word was uttered
on or off duty was immaterial
as it is the attitude that persists
which, when on duty, affects the employment relationship. “
8
[2010]
10
BLLR
1017
(LAC).
9
(2000)
21
ILJ
365 (LC).
10
Ibid
at 371F-G.
11
(2000)
21
ILJ
340 (LAC) at 344D-G.
12
Ibid
at 346G-H
.
13
Ibid
at 345F-G
14
(2007)
28 ILJ 2769 (LC).
15
(2008)
29 ILJ 1180 (LC).
16
(2008)
29 ILJ 2581 (LAC).
17
(2000)
21 ILJ 1051 (LAC).
18
Ibid
at 1059D-E.
19
[2000]
3 BLLR 243
(LAC) at paragraph [15].
20
[2007] ZALC 93
;
[2008]
3
BLLR
241
(LC).
21
[2001]
3
BLLR
305
(LAC).
22
“
[117]
The absence of dishonesty is a significant factor in favour of the
application of progressive discipline rather than dismissal.
So too,
is the fact that no losses were suffered. That Mr Sidumo did not own
up to his misconduct and his denial that he received
training are
factors that count against him. His years of clean and lengthy
service were certainly a significant factor. There
is no indication
that the principle of progressive discipline will not assist to
adjust Mr Sidumo's attitude and efficiency.
In my view, the
commissioner carefully and thoroughly considered the different
elements of the code and properly applied his
mind to the question
of the appropriateness of the sanction.”