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[2013] ZALCD 25
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Toyota SA Motors (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (D 600/11) [2013] ZALCD 25 (12 September 2013)
REPUBLIC
OF SOUTH AFRICA
LABOUR
COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Reportable
Case No: D600/11
In the matter between
TOYOTA SA MOTORS (PTY)
LTD
..................................................................
Applicant
and
CCMA
..................................................................................................
First
Respondent
COMM. A DEYZEL
.........................................................................
Second
Respondent
UASA
..................................................................................................
Third
Respondent
MARIE PRETORIUS
........................................................................
Fourth
Respondent
Heard: 27 May 2013
Delivered: 12
September 2013.
Summary:
Review of an award – Sufficiency of evidence -
whether
the second respondent applied his mind properly to all material
evidence led by the parties at the arbitration hearing and
whether
the award he issued was one that a reasonable decision maker could
have come to – passing on of email with offensive
material –
award reviewed, set aside and substituted
.
___________________________________________________________________
JUDGMENT
CELE, J
Introduction
[1]
The second respondent’s arbitration award dated 4 July 2011
issued in this matter under the auspices of the first respondent
is
the subject of this review application brought in terms of section
145 (2) of the Act
1
.
The award re-instated the fourth respondent to the employment of the
applicant. She opposed the review application, duly assisted
by the
third respondent, being a registered trade union.
Factual Background
[2] The fourth
respondent, Ms Pretorius was in the employment of the applicant and
had 16 years of service when her employment came
to an end. She was
in the position of a Senior Manager with no previous disciplinary
record. She worked with a number of employees
and for purposes of
this application they included the following:
Graham Allardice Project
Manager 36 years of service;
Marie Pretorius
Departmental Manager 16 years of service;
Quinton Oosthuizen
Production Coordinator 5 years of service;
Kenneth Aitken Manager
20 years of service;
Heinrich Beneke
Principal Engineer 20 years of service;
Benny Olivier Manager 15
years of service.
[3] During the period
around March to April 2010, Ms Pretorius and all of her colleagues
hereinabove mentioned and hereafter referred
to as employees, were
among recipients of an e-mail which they then forwarded on to other
persons. The e-mail inter alia contained
an article that was
published in a newspaper. On some of the e-mails the subject of the
e-mail was indicated as “The future
South Africa” and on
others “The future SA- not pleasant reading.” Some of the
e-mails had been prefixed by the
following comments above the
article:
‘
Written by an ex
Safrican and published in a UK newspaper.
Let us hope he has it
wrong.
There are lots of
articles doing the rounds, this is by FAR the best.
I have always tried to
understand why Africa has not prospered with all the mineral wealth
and available labour.
This is without doubt the
most plausible explanation for me.
Rgds
Graham’
[4] After the applicant
became aware of the circulation of the e-mail it decided to subject
Ms Pretorius, a Mr Hugh Norman and the
six employees to an internal
disciplinary hearing where they faced a misconduct which it described
as:
‘
It
is alleged that you have distributed an offensive email, using the
company’s computer/email facilities’
[5] The decision to
charge them was premised on the policy held by the applicant
governing the use of its e-mail system. The policy
was couched in the
following terms:
‘
Employees
must not send or forward email communications that contain offensive,
discriminatory, harassing or inappropriate content
which include but
not limited to ‘racist, sexual, offensive, degrading,
derogatory or discriminatory content’.
[6] The applicant also
had a disciplinary code and procedure (DCP) which prescribed certain
disciplinary actions or sanctions for
certain transgressions. In the
case of first transgressions the prescribed sanctions were that:
Category 2 offence -
counseling,
Category 3 offence -
final written warning
Category 4 offence -
dismissal
[7] The misuse of company
e-mail and/or internet facilities was a category 2 offence, while
negligence was a category 3 offence
and gross negligence a category 4
offence. The circulation and/or distribution of racially offensive
language and/or material were
listed as a category 4 offences.
Paragraph 1.3 of the DCP provides inter alia that:
‘
Before
a hearing is constituted, facts surrounding the alleged misconduct
have to be properly investigated by the direct supervisor
or delegate
(who should act as the initiator on behalf of the company in the
disciplinary process) to ensure justifiable evidence,
which warrants
the constitution of a hearing’.
[8] Paragraph 4 of the
DCP determines the following:
‘
It
is a prerequisite that a proper investigation be done before
suspending an employee and/or a disciplinary hearing is constituted’.
.........................
Only
after the conclusion of
a proper investigation
will the facts
determine whether a disciplinary hearing is necessary.” “In
order to establish whether an offence has
been committed, the
following process must be followed:
Investigate
and establish
the facts’
.
[9] The content of the
article in the e-mail was of six pages, as supplied by counsel for
the applicant to the heads of argument
furnished for this
application. The second respondent made an extract from the article
and I think it suffices for purposes of
this application. Such
extract reads:
‘
I
expect, like me, you are aware that there has never been a prosperous
black led country, but perhaps just blamed their “bad
luck”
or whatever for that uncontradictable fact….(sic)
There
are those who say “No we have such a strong economy, such
sophisticated infrastructure, such a talent pool, that we
can never
sink.”
My
belief is that they have not considered the root cause of Africa’s
failure. A cause that is not spoken about as it is fearfully
politically incorrect, and probably illegal to speak about…
The
cause is the deficiencies of the “black mentality” for
want of a better word…
Unfortunately,
racist or not, that is proven and a fact. Google it and you will find
that for over 70 years, in test after test,
done by dozens of
university professors and Nobel laureates plus USA government
studies, Jews are the most intelligent of humans
followed by East
Asians. Then come westerners then, trailing by a large margin, people
of African descent…
I.Q.
measurement measures different facets of intelligence and mental
competence. Sadly it is in the absolutely vital sphere of
cognitive
ability that blacks score worst. This means they score abysmally in
things like forward planning and anticipating the
consequences of
their actions…
Why
the lecture on I.Q.?
Well
for a start you must understand that our ruling party are (sic) voted
into power by a largely moronic plebiscite. I use the
word moronic
intentionally. If the cut off point for moronic is an I.Q. of 70,
half of the voting population would be classified
as such
Only
one in 40 black SAns achieves the average I.Q. of his white fellow
citizens
Simply
put, they are bloody stupid, and they rule us. Furthermore Zoooooma
says they will rule us until the scored coming. I believe
him.
This
explains why the ANC have such idiots in their positions of power and
influence, the likes of Zuma, Malema, Khompela and Cele.
They are,
unfortunately the best they have. Well they are the best blacks they
have. All the critical positions are held by Indians,
coloureds or
whites, something I am grateful for
The
black/white polarization is growing. Whites are gatvol at the waste,
corruption and stupidity of the black elite. Blacks are
demanding, as
their right, the wealth of the whites by means of redistribution of
assets. No matter that they have not worked for
those assets, they
claim them as spoils of war
You
have a few years left to enjoy hat is left of the glorious SA
lifestyle…
Enjoy
it while you can, and enjoy it in the Cape where the population mix
is more favourable, but be aware that change is inevitable.
Your
children must get a world class education, because they will not be
adults in SA. Get assets stashed offshore, you and your
children will
need them there’.
[10] The disciplinary
enquiry was chaired by Advocate M. Poseman. Mr Norman pleaded guilty
and he was given a final written warning.
Despite pleading not guilty
the employees were found guilty and were dismissed from the
applicant’s employment. The employees
lodged an internal appeal
against their dismissal which was chaired by a TOKISO panelist, Ms J.
Moodley. Ms
Pretorius changed her plea from not
guilty to guilty although she continued to maintain that she had not
read the e-mail prior to
sending it out. However, all
seven
employees were not successful with the appeal.
[11] Paragraphs 24 and 25
of the award, which appear not to be in dispute, contain what the
second respondent understood to be common
cause facts and disputed
material and read:
‘
24 The
respondent’s e-mail usage policy was formally admitted in the
applicants’ written argument. It was further formally
admitted
that the applicants were aware of the e-mail usage policy. The
applicant did not dispute that each one of them used the
respondent’s
e-mail facilities to distribute the e-mail referred to in paragraphs
16 to 18 above. All of them agreed that
the e-mail was offensive but
“not all agree that it is racist.” It was conceded at the
outset of the arbitration that
the applicants had breached a rule.
Their case was that they breached the rule negligently and that the
sanction was unfair.
25. The following
underlying issues had to be decided at arbitration:
What the charge was
that the employees were dismissed for and whether that differed
from the charge that they were charged
with?
Whether the charge
that the employees were charged with or dismissed for constituted
a category 4 offence?
Whether the e-mail
contained racist remarks and/or opinions?
Whether the employees
were aware at the time that they forwarded the e-mail that the
e-mail contained offensive and/or racist
remarks and/or opinions?
Whether dismissal was
a fair and appropriate sanction?
Whether the applicant
applied discipline consistently?’
[12] The second
respondent found the dismissal of all six employees to have been fair
and that they were not entitled to any relief
but found the dismissal
of Ms Pretorius to be unfair and he ordered the applicant to
re-instate her with limited retrospective
effect. The applicant
initiated the present application to the extent that the finding was
in favour of Ms Pretorius.
Chief findings of the
second respondent
[13] The second
respondent made a number of findings in this matter. Those relating
to other employees are relevant to this application
due to a number
of similarities in their cases. The findings may be outlined as that:
Mr Allardice and Mr
Beneke had similar versions. Both admitted reading the e-mail and
sending it on. Despite reading it before
sending it on, they said
that they did not appreciate at the time that the e-mail was
offensive. Their versions were improbable
as it was hard to believe
that anybody reading the e-mail would fail to realize that it
contained racist remarks and comments
and that it was offensive. Mr
Allardice and Mr Beneke were guilty of such serious misconduct and
the sanction of dismissal
was warranted.
Mr Aitken, Mr
Oosthuizen and Ms Pretorius had similar versions. They all gave
evidence to the effect that they had commenced
reading the e-mail
and they stopped at some point and then sent it on to others
without knowing that it contained racist remarks
or comments or
that it was offensive. The version of Mr Aitken and Mr Oosthuizen
was inherently improbable insofar as it suggested
that they
forwarded the e-mail on without having read the whole of it. The
applicant proved on a balance of probabilities that
Mr Aitken knew
the e-mail had racist contents when he sent it on. He was guilty of
an offence for which dismissal was prescribed.
Mr Oosthuizen’s
version was that he read the e-mail up to some point and that he
merely browsed through the remainder
of the e-mail. According to
him his eye caught a part of the e-mail referring to East Asians as
the second most intelligent
group. He then sent it on thinking that
it might be of interest to his two Indian colleagues. The version
that that was the
only reason why he sent it on was inherently
improbable. Racist comments and remarks occurred early on in the
e-mail and it
was more probable that Mr Oosthuizen came across it
and that he knew the e-mail contained offensive racist remarks and
comments.
What was said above about Mr Allardice, Mr Beneke and Mr
Aitken applied equally to Mr Oosthuizen.
The chairperson of the
disciplinary enquiry appeared to have found that Ms Pretorius and
Mr Olivier were unaware of the content
of the e-mail when they sent
it on. She posed a rhetorical question and answered it:
'Does
the fact that Pretorius and Olivier were unaware of the contents of
the e-mail detract from a finding of guilt? In my view
it doesn’t
– they are still guilty of distributing an e-mail which is
objectively offensive’
.
Ms Pretorius and Mr
Olivier did not take issue with the finding referred to in the
preceding paragraph. They admitted that they
breached the rule but
contended that they were merely negligent. Ms Pretorius however
took issue with another finding of the
chairperson expressed as:
‘
How
does the fact that Pretorius and Olivier had not read the e-mail
before sending it affect the sanction and does this in fact
mean that
they could be treated differently within the context of the company
applying its rules consistently. In my view the fact
that they had
not read the e-mail is irrelevant’
.
The chairperson of the
disciplinary enquiry erred in finding that it was irrelevant
whether or not Ms Pretorius and Mr Olivier
had read the e-mail
prior to sending it on. It was highly relevant when it came to
considering the fairness of the sanction
to make a finding whether
it was a case of sending the e-mail on without knowing that it
contained offensive racist material
or whether it was a case of
sending it on with full knowledge of that fact. The first type of
misconduct is obviously not as
serious as the second type and,
depending on the circumstances, fairness might call for a lesser
sanction than dismissal to
be imposed in the case of the first type
of misconduct.
That Mr Olivier did not
know what the contents of the e-mail were when he sent it on was
not acceptable. The version that he
advanced at the disciplinary
enquiry that he sent it on to five people without reading it was
inherently improbable. It was
further improbable that he would have
done so merely because of the title and because he thought Mr
Allardice had endorsed
it. He did not testify during the
arbitration and on the available evidence it could not be found
that his state of mind at
the time when he sent the e-mail on was
such that it constituted a mitigating factor. On the contrary the
most probable inference
to be drawn from the circumstances was that
he knew what the contents of the e-mail were when he sent it on.
Like in the case
of Mr Allardice, Mr Beneke, Mr Aitken and Mr
Oosthuizen, Mr Olivier knowingly breached the rule against sending
offensive racist
material through the respondent’s e-mail
system and that the sanction of dismissal was not unfair.
Had it not been that Ms
Pretorius version was corroborated by the results of the polygraph
examination it would be found that
her version was inherently
improbable and would for that reason have been found that it was
more probable that she knew what
she was sending on. In such event
it would not have been possible to exclude the possibility that her
version might be true.
Mr van Biljon’s
evidence indicated that he was sufficiently qualified and
experienced to give expert evidence that the
examination was
conducted according to acceptable and recognizable standards and
that the outcome of it was sufficiently reliable
that it might be
regarded as corroboration of Ms Pretorius’ version. There was
further no other expert evidence gainsaying
his version. His
evidence was acceptable and it was found that she did not show any
physical signs of being deceptive when
she gave responses during
the polygraph examination to the effect that she did not know about
the racist contents of the e-mail
at the time when she forwarded
it. The corroboration of Ms Pretorius’ version was such that
it rendered her version more
probable. It was accordingly accepted
as a fact that Ms Pretorius did not know at the time when she sent
the e-mail on that
it contained offensive racist remarks and
comments. She was still negligent in not checking what the e-mail
contained before
sending it on but the misconduct was far less
serious than that committed by the other employees or for that
matter by Mr Norman
who on the summary given by Ms Posemann knew
what he was sending on. Taken into account was the fact that
applicant’s
disciplinary code prescribed a final written
warning for negligence. The circumstances were not such that a
finding of gross
negligence would have been justified. Accordingly,
it was found that the dismissal of Ms Pretorius was substantively
unfair.
The submission made on
behalf of the other employees that it constituted inconsistent
applicant of discipline to have dismissed
them and not Mr Norman,
was taken into consideration. In her evidence Ms Posemann explained
what led her to impose a lesser
sanction in the case of Mr Norman.
Mr Norman pleaded guilty during his enquiry and indicated remorse
whereas this was either
not true of the employees or true to a
lesser extent in their cases. Mr Norman also reported the matter to
his superior before
it could be discovered. It was more probable
that, the failure or refusal of the employees to admit at their
enquiry that the
e-mail contained offensive racist material
necessitating the calling of witnesses to prove that fact, soured
the relationship.
Requiring of the applicant to bring people who
were aggrieved to the disciplinary enquiry probably had a similar
effect. It
was not unfair to draw a distinction between Mr Norman
and the employees other than Ms Pretorius.
It was not possible to
find that the applicant should have disciplined further employees
in connection with forwarding the e-mail.
Mr Killian’s
version about the report that Mr Hendrik Pretorius made to him was
more probable than Mr Pretorius’
version. Mr Killian’s
evidence explained why no disciplinary action was taken against Mr
Hendrik Pretorius. On the version
Mr Pretorius one would have
expected Mr Killian to have taken some disciplinary action against
him and his version that Mr
Killian simply turned a deaf ear to his
confession was improbable.
The employees raised a
procedural issue about the failure of the applicant to do a better
investigation, which as it was alleged,
would have identified
further perpetrators. The employees however, failed to disclose
information to the applicant about who
some of such perpetrators
might be. It was alleged that the failure on the part of the
applicant to do a detailed investigation
rendered the procedure
unfair and that it caused inconsistent application of discipline.
The applicant proved on a balance
of probabilities that it
conducted such an investigation as could have been expected to be
done and that no inconsistent application
of discipline occurred.
In the circumstances,
only Ms Pretorius will be awarded relief. In terms of section 193
(2) of the Act an employee who is unfairly
dismissed is entitled to
reinstatement unless certain exceptions exist. None of the
exceptions were applicable in the present
matter and the applicant
would accordingly be required to reinstate Ms Pretorius in its
employ. The applicant was able to continue
employing Mr Norman and,
because the circumstances relating to Ms Pretorius are not much
different, there should for that reason
not be a problem with
reinstating her.
Ms Pretorius was
however, to a great extent responsible for the situation that
developed; so much so that the outcome of the
polygraph test had to
tilt the scales in favour of a finding that she did not know at the
time when sending it on, that the
e-mail contained racist remarks.
The reinstatement will for that reason be limited to operate with
retrospective effect from
a date six months prior to the date of
issuing the award. At the time of issuing the award the
remuneration due to Ms Pretorius
as a result of the retrospective
operation of the reinstatement amounted to R180 000-00. This amount
was calculated on the
basis that she earned R30 000-00 per month.
Grounds for review
[14] The applicant made
submissions that the arbitrator, in conflict with the behests of the
Act, handed down an award which was
not of a reasonable and objective
decision maker, failed to apply his mind, misconducted himself,
committed a gross irregularity,
exceeded his powers by acting
unreasonably or unjustifiably in making various findings including
but not limited to:
1. Finding that there was
a distinction between Mr Norman and third respondent’s case in
circumstances where:
Mr Norman pleaded guilty
at his disciplinary enquiry, showed remorse in circumstances where
he had reported to his manager the
receiving of the email;
In contrast Ms Pretorius
pleaded not guilty at the disciplinary enquiry, showed no remorse at
the enquiry or at the appeal and
demonstrated what can only be
described as false remorse at the arbitration. Ms Pretorius at the
arbitration was of the view
that the email was not racist and but
only offensive.
By justifying his
findings namely that:
Ms Pretorius had not read the email
before sending it off;
As another employee who
had committed the same offence receiving a final written warning,
she would be able to maintain a trust
relationship.
[16] In respect of the question of
whether Ms Pretorius read the email before sending it off, it was
submitted that on a balance
of probabilities, it was highly
improbable and in fact impossible for her to have decided to send the
email on to persons with
children when the introductory paragraph was
silent on crime and the World Cup, but if she had read the entire
email she would
have read such references. The submission was that it
was clear from the paragraph that she read that there was nothing in
that
paragraph which pertain any facts which would allow her to reach
that conclusion. The arbitrator was said to have overlooked the
fact
that deep into the article there was specific reference to tragedies
which were said to have happened in Africa coupled with
two warnings:
‘
a. Your
children must get a world class education, because they will not be
adults in SA;
b. Get assets stashed off shore, you
and your children will need them there’.
[17] In opposing the review
application the third and fourth respondents submitted, inter alia,
that:
The charges applicable
to Ms Pretorius relate to the distribution of an offensive e-mail.
No reference was made to “racially”
offensive e-mails in
the respective charge sheets and it was submitted that the
applicants should rather have been charged with
the misuse of
company e-mail facilities.
Ms Pretorius was under
the impression that the allegation against her only referred to an
offensive e-mail and did not refer to
a racist e-mail. It was only
at the disciplinary hearing where it became clear that the
employer’s intention was to charge
them for sending a racist
e-mail and where they were labelled as racists by Mr Kilian. Ms
Pretorius was also of the view that
the sending of the e-mail did
not constitute an offence as she did not consider the e-mail to be
offensive, let alone racist.
It was only after Mr Rajoale testified
at the disciplinary hearing that Ms Pretorius realised that the
e-mail was offensive to
other race groups.
Mr Kilian testified that
if an employee receives a racist e-mail, he must report it to his
Manager or to the HR Manager. Mr Kilian
confirmed that no
disciplinary action was taken against anybody who received the
e-mail but failed to report it to his Manager
or to HR. The
applicant therefore allows for employees to receive offensive,
racist e-mails without having to report it to their
managers, even
though they have a rule to that effect.
Ms Pretorius said that
she did not read the e-mail but for the subject and the paragraph
where Mr Allardice typed his name where
he indicated that he hoped
that the author had it wrong. Ms Pretorius therefore did not have
knowledge of the contents of the
e-mail before sending it on. She
could therefore not have known that it was offensive. She was
negligent at the most for forwarding
an e-mail without bringing
herself up to speed with the content thereof.
No proper investigation
was done by the applicant to identify possible perpetrators. The
applicant was asked to present the investigation
report but could
not. That clearly showed that no investigation docket existed. The
excel spreadsheet was simply a spreadsheet
with names, it was not a
complete investigation which could show which e-mail addresses were
scanned, what criteria was allegedly
used to scan the computers and
what the overall results were. At no stage did the applicant
indicate that they were not able
to complete such an exercise. The
fact that the names of Messrs Oosthuizen and Hennie Pretorius were
omitted from the report,
begs for an answer and Mr Kilian had no
explanation.
The lethargic attitude
of the applicant showed that they were not genuine in their attempt
to investigate and to find the perpetrators
that sent the e-mail on.
The sending of offensive e-mails could therefore also not be such a
serious offence if they were not
willing to do a proper
investigation.
Mr Hugh Norman was
charged for exactly the same offence, pleaded guilty and was issued
with a final written warning. The reason
being that he had allegedly
shown remorse and according to Ms Poseman, the chairperson of the
hearing, this made his case different
to that of Ms Pretorius.
Mr Kilian on behalf of
the employer did not agree with the chairperson of the hearing and
he was of the opinion that Mr Norman
should also have been
dismissed. In Mr Kilian’s closing argument, he argued that Mr
Norman changed the subject line and
deleted the first paragraph in
an attempt to avoid detection of the monitoring system of the
company.
The applicant was of the
view that Ms Pretorius did not show any remorse. Remorse in the
context of workplace incidents was often
difficult to deal with. One
can speculate that employees may be reluctant to apologize because
this may be perceived to be an
acknowledgement of wrongdoing and may
get them into trouble. Remorse is a complex emotion, a mixture of
shame and regret for
the apparent victim. But supposed remorse may
as well be linked to the perpetrator's own sense of regret that it
happened at
all and that he got caught.
Ms Pretorius testified
that she showed remorse and she did in fact show remorse in
different ways. She did it in her statement
to the chairperson of
the hearing by saying that she was sorry if she offended anyone, she
also did it by saying that she was
sorry and by way of changing her
plea to guilty. The fact of the matter is that there was no
complainant to whom they could say
that they were sorry. She did not
harm anybody and therefore there was nobody to whom she could have
said sorry to.
No direct evidence was
presented that the trust relationship between Ms Pretorius and the
employer had been damaged. The only
evidence to this effect was that
of Mr Kilian, The Senior Manager of Labour Relations and a former
NUMSA Chairperson, who accused
Ms Pretorius of being racist, simply
because they forwarded an e-mail. Ms Pretorius was not the author of
the e-mail. It was
not her ideas, views and opinions in the article,
but she was dismissed for those views of an anonymous person.
Dismissal was not the
appropriate sanction in this matter where Ms Pretorius did not have
any previous disciplinary records and
where she had long years of
loyal service to the company. In the absence of allegations of
dishonesty, the length of service
of Ms Pretorius ought to have
carried a lot of weight in circumstances where the employer cannot
prove that the trust relationship
was damaged.
Evaluation
[18] In this application it has to be
ascertained whether the second respondent applied his mind properly
to all material evidence
led by the parties at the arbitration
hearing and whether the award he issued was one that a reasonable
decision maker could have
come to.
2
A consideration of this application
will largely entail the examination of the facts of this matter. This
must not be construed
as treating a review application as an appeal.
[19] The crisp issue turns, as it
must, on whether Ms Pretorius read more portion of the email than she
admitted to. This much is
clear, as a point of departure, when mind
is had to the rationale underlining a different treatment meted out
to Mr Olivier.
3
At some stage after Ms Pretorius
received the controversial email, she mulled over it and finally
decided that she would pass it
on. Common sense tells us that she had
to select the recipients of the email. That process involved the
exclusion of some people
she knew and the inclusion of others. The
contents of the email had to be relevant to the people she had
selected. She also had
to feel comfortable in sending each of the
selected few. The process of sending the email further on meant that
she identified
herself with the contents thereof which she had read.
It has to be remembered that she was a Senior Manager dealing with
audits.
She must be taken to have had an analytical eye and mind to
written material. Her evidence in this regard is very much telling as
it says:
‘
I
looked at the first page and actually I saw the subject “The
Future of South Africa’
‘
Then
I read the little written by an ex-South African and published in the
UK paper. I read that paragraph and that is as far as
I read in this
email.
4
....
I
think true South Africans, everybody are concerned about South
Africa. We’ve got all kids and we’re all worried that
they might go to other countries. Also my really concern was just
before the World Cup at that specific stage, there were talks
about
the crime rate, things were not in place ...’
5
[20] The portion she said she read had
no reference to crime and South Africa not being ready for the World
Cup. Deep into the email
there are references to crime and the World
Cup, and that was what she said motivated her concerns for South
Africans with children.
In the content of the article there is
considerable reference to issues affecting white South Africans
leaving South Africa and
children and crime. The portion of the email
she said she read could not cause the concerns she said she had. Put
differently,
it is reading deep into the email that she could have
been concerned about crime and South Africa not being ready for the
World
Cup. She spoke of people with kids who were all worried that
they (the kids) might go to other countries. She would have had to
have read the email further than she admitted to have that concern.
The probabilities of this matter point towards Ms Pretorius
having
read the email contents much more than she was prepared to admit to.
Her evidence was clearly far from the truth.
[21] The second respondent’s
assessment of the evidence of Ms Pretorius left very much to be
desired. He accorded her more
credence that was justified by the
evidence she led. He should have concluded that Ms Pretorius had read
either the entire email
or much more of it than she admitted. His
failure to properly assess her evidence amounts to the commission of
a gross irregularity.
[22] While the internal disciplinary
hearing was continuing, Ms Pretorius was subjected to a polygraph
testing. It is trite that
the results of a polygraph test are, alone,
not reliable.
6
Mr van Biljoeon conducted the
polygraph test to Ms Pretorius. His evidence was that she told him,
in the course of the test that
the contents of the email were racist,
using the description “racialistic”, according to her.
This description by Ms
Pretorius amounts to a previous inconsistent
statement when seen against her subsequent denial at the arbitration
hearing of the
knowledge of what was in the email. She had to have
read deep into the email to be able to say it was racist. Her version
could
therefore not have been probably true. In the circumstances,
the arbitrator’s finding in this regard are unreasonable as he
should simply have found that Ms Pretorius had read more in the email
than she agreed to.
[23] The fairness of the
dismissal sanction was attacked by the third and fourth respondents.
They said that
dismissal was not the appropriate
sanction in this matter where Ms Pretorius did not have any previous
disciplinary records and
where she had long years of loyal service to
the company. In the absence of allegations of dishonesty, the length
of service of
Ms Pretorius ought to have carried a lot of weight in
circumstances where the employer cannot prove that the trust
relationship
was damaged.
[24] The honesty of the
contrition of Ms Pretorius was a difficult issue to assess. She
decided to plead not guilty at the internal
disciplinary hearing.
When she realised that her job was on the line, and upon advice by
her representative, she changed the plea
to that of guilty during the
appeal hearing. In her view, the charges were nothing but the making
of a mountain out of a mould.
She felt that it was unfair that she
had lost her job for something that was so ridiculous, saying people
took the article and
made a big thing about it. According to her the
unions never knew anything about the e-mail until Mr Kilian gave it
to the chairperson
of NUMSA. Some of her friends, even those on
Director level, were said to be shocked by the way the matter was
handled by the applicant.
They thought that they would receive a
warning and that would have been the end of it.
[25]
The email can only be described as shocking and an example of
the worst type of racist writing one could possibly imagine. To the
majority of the South Africans, it is highly offensive and demeaning.
It has an attack on the dignity of the sitting head of State,
whose
status embodies the unity of the South Africans. The email is of hate
speech material. No wonder Mr Emanuel Rajoale was reduced
to tears at
the enquiry when the contents of the email were discussed. Ms
Pretorius, in continually rejecting that the mail is
racist, in
essence rejects the applicant’s stance on racism which clearly
undermines the trust relationship. The applicant
would be justified
in not trusting Ms Pretorius not to disturb its racial harmony and
the accompanying industrial peace.
[26] I do not deem it
necessary to deal in details with the issue of how the matter was
investigated upon. The relevance of the
absence of a docket and the
usage of spread sheets have all not been shown. How each case is
investigated will depend on the facts
and circumstances of that case.
Where an employee is for instance caught red handed, the extent of
investigations may not be as
deep as when the suspect of some wrong
doing is unknown.
[27] When the material
evidence of this matter is properly considered, the award cannot
stand. Ms Pretorius was clearly guilty of
category 4 misconduct. The
appropriate sanction is none other than a dismissal.
[28] The following order
shall issue:
The review of an
arbitration award in this matter is granted.
The dismissal of the
fourth respondent, Ms Pretorius, by the applicant was substantively
fair.
No costs order is made.
_____________________
Cele J
Judge of the Labour Court
of South Africa
Appearances
For the Applicant:
Adv.C.A.Nel
Instructed by : Macgregor
Erasmus Attorneys
For the Respondent: Adv.
L.Pretorious
Instructed by UASA
1
The
Labour Relations Act Number 66 of 1995.
2
See
Sidumo v Rustenburg Platinum Mines Ltd
(2007) 28 ILJ 2405
(CC).
3
See
paragraphs 62 and 63 of the award.
4
See
pages 213 to 214 of the transcript.
5
See
page 216 of the transcript
.
6
Food
and Allied Workers Union on behalf of Kapesi and Others v Premier
Foods Ltd t/a Blue Ribbon Salt Rive
(2010) 31 ILJ 1654 (LC).