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[2014] ZALCCT 11
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City of Cape Town v South African Local Government Bargaining Council and Others (C96/2013) [2014] ZALCCT 11 (15 February 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR
COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not Reportable
Case
no: C96/2013
In
the matter between:
CITY
OF CAPE
TOWN
...................................................................................
First Applicant
and
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
............................................................................
First
Respondent
MELWYN
NASH
N.O
...............................................................................
Second
Respondent
SIPHIWE
FREDDIE
....................................................................................
Third
Respondent
Date
heard: 26 November 2013
Date
delivered: 15 February 2014
Summary:
Review of an arbitration award
JUDGMENT
Rabkin-Naicker
J
[1]
The applicant (the City) seeks the review, setting aside and
substitution of an arbitration award under case number WC M041204
dated 19 December 2012. In the award of the second respondent (the
Arbitrator) found that the dismissal of the third respondent
(Freddie) was substantively unfair and reinstated him with
retrospective effect from 5 March 2012.
[2]
The grounds of review set out in the founding affidavit include that
the Arbitrator committed misconduct in relation to his
duties as
arbitrator; and/or committed a gross irregularity in the conduct of
the arbitration proceedings; and/ or exceeded his
powers as an
arbitrator. Furthermore, it is alleged that the Arbitrator’s
finding that the employment relationship between
the City and Freddie
had not broken down irretrievably, reflected his disregard of
evidence led at the arbitration hearing and/
or a failure to apply
his mind to the factual and legal issues before him. Such a finding
is therefore described as one that a
reasonable decision maker could
not have arrived at.
[3]
Freddie was charged with misconduct: “in that between 25
February 2011 and 15 April 2011, in various e-mail communications
and
in a one-on-one situation, he was grossly insubordinate/
insubordinate in that he acted in an insolent, provocative,
aggressive
and intimidatory manner towards his management team.”
It should be noted that on 15 April 2011 he was suspended by the City
effective for about three months. A further charge followed on or
about 2 June 2011: “in that he committed serious misconduct
when he e-mailed his manager Robson a derogatory, insolent, racist,
provocative and offensive e-mail.”
[4]
Freddie had commenced employment with the City on 22 November 1993
and sought reinstatement at the arbitration. He had started
his
employment as a general worker in the Solid Waste Department where he
worked on trucks and swept streets. A year later he was
appointed as
a clerk in Solid Waste. He occupied this position for nine years
before appointment to the public participation unit
which deals with
managing the relationships between the City and community
stakeholders. The unit had proposed that Freddie be
placed as a
professional officer and his unhappiness related to his placement as
an assistant professional officer.
[5]
It is recorded in the award that the acting director: Governance and
Interface Mr Irwin Robert Robson (Robson) testified that
he attempted
to secure Freddie's placement as professional officer but he could
not be placed higher than four grades in terms
of the City's
policies, which is what would have happened if he had been placed in
that position. Robson is recorded as testifying
that Freddie’s
insubordination was triggered by a directive from the Speakers Office
to account for how Robson’s staff
utilized their time and that
he had instructed the staff in the unit to provide a detailed
breakdown of their projects. Freddie's
report did not meet the
necessary requirements. Freddie had simply supplied him with an
e-mail with attachments without explanation.
The format was
unacceptable and incomprehensible. In the office of the professional
officer, a Mr. Frederick Venter (Venter), he
asked Venter to help
Freddie with compiling the report. Freddie questioned why he was
supposed to take instructions from Venter
and stated that Robson's
intentions were to promote Venter. Freddie refused to work with
Venter and embarked on a bombardment of
e-mails directed to Robson.
[6]
At a team meeting between Robson, Freddie and Venter, Freddie had
become aggressive and threatening according to Robson, and
remarked “
I will deal with you”. In an e-mail from Freddie to Robson he
had claimed that Robson was guilty of undermining,
belittling and
victimising him. There followed a one-on-one interview between Robson
and Freddie on 15 April 2011. At the meeting
Freddie raised an issue
around Venter's management of a particular project and worked himself
into frenzy. Robson testified that
he reached the end of his tether
and considered Freddie an “ingrate” and confronted him
about his attitude and behaviour.
Freddie got up and walked over to
him and pointed his finger in his face and remarked “you have
the attitude”. As a
bluff Robson remarked he was recording the
discussion. He said Freddie was shocked. It was after this that he
approached the City
Manager calling for Freddie’s 3 month
suspension which was implemented.
[7]
On his return from suspension, Freddie went to assist a unit in the
governance and interface directorate. It is recorded in
the award
that Robson disputed Freddie's contention that he favoured white
staff members. Venter was the only white staff member
and Robson
stated that Freddie mistook his kindness for weakness, hence his
behaviour. He stated that he could never ever work
with Freddie in
the future as he adds no value. He said that Freddie had tarnished
his name by making statements that he was “
Mr racist, racist
of the highest order and comparing him to Hendrick Verwoerd”.He
further testified that after his dismissal
on 30 November 2011
Freddie persisted with sending derogatory e-mails to the City blaming
all and sundry for his dismissal and
that this indicated he would not
change, and confirms that the breakdown of the employment
relationship was irretrievable. It was
also the evidence of Robson
that Freddie had a past disciplinary record when he was in the Solid
Waste Department.
[8]
It is recorded in the award that Freddie acknowledged that he was
issued with a written warning in around 2000 while in Solid
Waste
because of an argument with a colleague. He briefly described the
incident as a matter where a colleague called him a “kaffir”.
He had responded in a derogatory fashion and later apologized. Both
parties were disciplined. The recordal of Freddie's evidence
includes
the following paragraphs of the award:
"31.
He described his unhappiness regards placement as a lack of
acknowledgement by the respondent that he was the first person
in the
PPU and responsible for training newcomers. Early on there were
discrepancies around staff salaries and this continued until
2008
when the ORP (Organisational Realignment and Parity) process
unfolded. His designation as APO did not change whilst all other
staff members were placed higher. He objected to the placement. He
was frustrated as the reasons advanced were unreasonable. Robson
convinced him to sign off on the placement on the assumption that the
placement would be challenged via the TASK process.
32.
He relayed an instance where Robson chased him out of the office due
to being late for a meeting. He stated that the nature
of his work
requires him to consult with community stakeholders on a daily basis
and on the day of the meeting, it was no exception
as he was in
consultation with parties and forgot about the meeting. He arrived
late and apologised but Robson ridiculed him in
front of colleagues.
He took exception and at a later confrontation, he tried to explain
this to Robson but was humiliated and
chased out of his office.
33.
In evidence of his claims of being regarded as worthless, victimised
and belittled he stated that there was an issue around
the use of his
car despite the fact that he does not receive a car allowance. In
addition, he was one of the older members of staff
and it was
humiliating when Robson embarrassed him in front of younger staff. He
felt that because he was black, Robson did not
respect him, despite
his contention that he was the most sacrificing employee in the unit
without any form of appreciation for
this. In addition, he was always
designated to get old office furniture as compared to his colleagues
and was the only one required
to use a printer not located in his
office.
35.
He concedes that comparing Robson to Hendik Verwoed was uncalled for
but added this was out of frustration and he worked in
a hostile
environment. Nonetheless, he takes responsibility for the statement.
37.
37.
The one-on-one meeting on 15 April 2011 with Robson, started in a
cordial fashion but in the course of the meeting, Robson confronted
him with why he does so little work. His response was that Robson
should ask himself the question as he was responsible for allocating
work. Robson remarked that he was pathetic and destruction to the
unit. An argument ensued and Robson ended up pointing at him
and he
pointed back.
38.
He does not regard the relationship is destroyed and he was informed
by former colleagues that his position is still vacant.
He conceded
that his relationship is probably broken down in respect of certain
individuals but not with the respondent.
39.
In hindsight, he would properly have done things differently as one
learns from their mistakes and he takes responsibility for
his
actions where he made certain comments. Is he feels he had legitimate
issues but he adopted the wrong approach.
40.
He confirms that despite the broken the relationship with Robson he
would be willing to work with him…..
42.
He was confronted with the contention that he did not show remorse at
the hearing and his response was that he did. Further,
he responded
that his remorse during the arbitration was genuine as he has since
been guided by people and despite management failing
him with his
concerns he accepts that his statements regarding comparing Robson to
Verwoerd were wrong. Had there been an earlier
intervention the
matter would not have escalated."
[9]
The e-mails of 2 June 2011 which was sent by Freddie to Robson
included the following:
“
you
can fool everybody in that office, pretending as if you care about
black people, I have been with you for a long time ago when,
I know
you back to front, you are racist of the highest order, the way I
look at you you're even more than Verwoerd. I was born
at the height
of apartheid , you cannot fool me about racism, you are a racist 101,
if you have never been told who you are, today
you're getting it from
me. I'm telling you your true colours and I'm wondering as to how did
you choose to be an advocate, while
at the same time being a party to
oppression by the imperialist. It's just contradictions, maybe you
should attempt to practice
your profession, so that you know exactly
what it means.…”
[10]
The reason given for a finding of guilty on the charge in respect of
this e-mail at the disciplinary hearing, which was part
of the record
before the Commissioner reads as follows:
"1.
The e-mail from your address… on 2 June 2011 brought rise to
this charge. In this mail to Mr Robson you alleged
that he was a
racist of the highest order. No evidence was led that Mr Robson was
in fact was a racist or behaved in a racist fashion.
You cited a few
examples of perceived racism like return to work interviews which you
refused to attend (unlike your colleagues).
Printing to a common
printer, (in fact I print to a common printer as it is common
practice in Council). Your manager not favourably
resolving your
placement and the perceived idea that you were to report to Mr F.
Venter subsequent to Tessa leaving the employ
of Council. The
aforementioned examples does not amount to racism or racial
discrimination. Your derogatory, insolent, racist,
provocative and
offensive e-mail to Mr Robson is tantamount to Serious misconduct
hence the finding of guilty of this charge."
[11]
In relation to the second charge facing Freddie the Arbitrator found
that Freddie was guilty of making the derogatory and offensive
statements. He found in paragraph 56 of the award as follows:
“…
.
Freddie admitted that the e-mails he sent were uncalled for and in
bad taste and that he accepts responsibility for his actions.
Notwithstanding the admission, Freddie failed to convince me that
there was substance to the allegations of being racist and displaying
a racist attitude and the issues he raised were primarily unhappiness
with Robson's management of the unit. Freddie confirmed that
he was
acting on what he witnessed and in his view, he witnessed racism.
This is a subjective view presents merely as a perception.
When
making a serious accusation of racism the source of the statement
must ensure there is substance to the contention and not
simply
presented as an allegation without sufficient proof."
[12]
The Arbitrator, having found that Freddie was guilty of the two
charges on which he was dismissed, refers to the case of Sidumo
more
especially that the arbitrator’s role is not to consider afresh
what he or she would do, but simply to decide whether
what the
employer did was fair. He goes on to find as follows in his award:
“
61.
.……… The seriousness of Freddie's conduct cannot
be denied. The tone of his communications and approach
he followed
was inappropriate and, specifically in relation to the second charge,
he expressed his acknowledgement that he dealt
with the matter
incorrectly. Importantly he mentioned that he came to this
understanding after he consulted with his attorney and
other advisers
who showed him the error of his ways. I believe that he showed
genuine remorse for his conduct at the hearing of
this matter and he
acknowledged that he now understands the nature of being subservient
to the instructions of his employer.
62.
A further factor considered is Freddie's history with the respondent.
In my view it is of significance to consider that he has
been
employed with the respondent for 18 years. His career path indicates
that he progressed from a general worker in solid waste
to a
professional position within the PPU. In the course, he managed to
obtain a B TEC degree. I find this significant as I deem
reasonable
to assume that there is very few other staff in the respondents
employ that would have progressed to the extent Freddie
did. His
career path also suggests that he enjoyed a measure of satisfaction
in being of service to the respondent.
64.
The issue whether the employment relationship has been irretrievably
broken must also be considered. Robson testified that the
mutual
understanding was that the relationship is beyond repair and I have
an understanding for his contention however, the evidence
seems to
suggest that there were never constructive attempts to sit down and
deal with the matter. I have a concern with Robson's
contention that
no other manager would be able to manage Freddie. This is speculative
and given the length of Freddie service needs
to be approached with
caution. Further evidence was led that when he returned from
suspension he worked in a sister unit within
Governance and
Interface. It is assumed that he worked under supervision there and I
was not presented with evidence of difficulties
experience in
managing him in that department.”
[13]
It is submitted in behalf of the City that the Arbitrator in effect
found Freddie “guilty" of lesser forms of misconduct
than
those for which he had been dismissed. Further, that no reasonable
decision maker would find dismissal for misconduct involving
gross
insubordination and insolence, provocative, aggressive, intimidating
and racist behaviour to be substantively unfair. The
award, it is
argued, could only be arrived at by closing one's eyes to the most
serious aspects of Freddie's misconduct. These
submissions on behalf
of the City deal in some detail with the Arbitrator’s
consideration of case law that has dealt with
racist behavior and
refers to the judgment in
Vodacom
(Pty) Ltd V Byrne NO and others
[1]
in which Van Niekerk J held as follows:
“
The Commissioner's
analysis is one that considers the term "racism" as limited
to its definition of exhibiting racial
prejudice. This he
distinguished from the invidious act of falsely imputing racism to
another in order to discredit them. The commissioner’s
position
might be challenged on a number of grounds and reasonable people will
no doubt come to different conclusions in any debate
on the issue.
There are those who would argue that playing the race card is an
inherently racist act; there are those who would
argue that it is
not. Indeed, there are those who argue that black people cannot be
guilty of racism. But it is not for the court
to consider the aptness
of the commissioner’s analysis – the issue is whether his
reasoning and the resulting decision
meet the Sidumo threshold of
reasonableness."
[14]
This in my respectful view is the correct approach to take to a
matter such as the one before me. Mr Conradie’s excursus
into
the principles set out in various cases on the question of racism,
and the distinguishing of facts in those cases from that
in casu, is
not of assistance. What must be determined by this court is whether
on the material before the Commissioner, he arrived
at an
unreasonable result. In
Herholdt
v Nedbank Ltd
[2]
the Supreme Court of Appeal considered the law as it stood after
Sidumo
and summarised it thus:
“
[25]
In summary, the position regarding the review of CCMA awards is this:
a review of a CCMA award is permissible if the defect
in the
proceedings falls within one of the grounds in section 145 (2) (a) of
the LRA. For a defect in the conduct of the proceedings
to amount to
a gross irregularity as contemplated by s145(2)(a)(ii), the
arbitrator must have misconceived the nature of the enquiry
or
arrived at an unreasonable result. A result will only be unreasonable
if it is one that a reasonable arbitrator could not reach
all the
material that was before the arbitrator. Material errors of fact, as
well as the weight and relevance to be attached to
particular facts,
not in and of themselves sufficient for an award to be set aside, but
are only of any consequence if their effect
is to render the outcome
unreasonable."
[15]
The submission that the way in which the Arbitrator allegedly made
findings on lesser grounds of misconduct than actually occurred,
amounts to an argument that no reasonable commissioner could
reinstate a person guilty of the misconduct complained of.
[16]
In the constitutional era reasonableness in the administrative law
context has been authoritatively set out in
Bato
Star
[3]
where the Constitutional Court held that an administrative decision
will be reviewable if it is one that a reasonable decision-maker
could not reach. The court went on to say that:
“
What
will constitute a reasonable decision will depend on the
circumstances of each case, much as what will constitute a fair
procedure will depend on the circumstances of each case. Factors
relevant to determining whether a decision is reasonable or not
will
include the nature of the decision, the identity and expertise of the
decision-maker, the range of factors relevant to the
decision, the
reasons given for the decision, the nature of the competing interests
involved and the impact of the decision on
the lives and well-being
of those affected. Although the review functions of the Court now
have a substantive as well as a procedural
ingredient, the
distinction between appeals and reviews continues to be significant.
The Court should take care not to usurp the
functions of
administrative agencies. Its task is to ensure that the decisions
taken by administrative agencies fall within the
bounds of
reasonableness as required by the Constitution.”
[17]
This case tells a uniquely South African story. Freddie, an African
man who had grown up during the height of apartheid and
who had risen
through the ranks from a worker cleaning the streets to an
administrative official felt that the way he was spoken
to by Robson,
a white man, in front of younger members of the Department, reflected
racism. He felt disrespected. He became over
sensitive to every
issue, even the question of the location of the printer he was given
to use, and the furniture in his office.
Robson on the other hand was
confounded and deeply hurt by the allegations made by Freddie that he
was a racist as he clearly considers
himself never to have subscribed
to racism. Given our history, the gulf in perception between these
two men is most likely one
that is to be found in many workplaces in
our country. These factors are relevant to the decision made by the
Arbitrator in this
matter.
[18]
In coming to his decision that the dismissal was substantively
unfair, the Arbitrator takes the length of service of the employee,
and his background into account. He also, properly, deals with the
issue of remorse shown by Freddie. In as far as taking Freddie's
previous disciplinary record into consideration he deals with one
written warning given to Freddie and alludes to the undisputed
evidence that Freddie was derogatory and disrespectful to a colleague
after he had been called a “kaffir”. The Arbitrator’s
view that the employment relationship had not irretrievably broken
down would certainly be problematic if Freddie had been employed
in a
small company. However, the Arbitrator takes into account the
scale of the operations of the City when he ordered reinstatement.
In
all the circumstances, I do not find that the Commissioner misapplied
the
Sidumo
test when he dealt with the question of the
fairness of the sanction of dismissal. His decision is not one that a
reasonable decision
maker could not make.
[19]
I also take into account, in finding that the decision that the
dismissal was substantively unfair is within the realms of
reasonableness, that Freddie was already punished by means of the
three-month suspension in respect of the misconduct which occurred
before June 2012. The Arbitrator’s decision on the remedy to be
awarded is well reasoned– the preferred remedy of reinstatement
is ordered but without full back- pay. However, given the misconduct
for which Freddie was charged, it is my judgment that the
Arbitrator
should have, in addition to ordering limited back-pay, have ordered
that Freddie be reinstated subject to
a final written warning. The
review application was by no means frivolous and I do not deem it
equitable that costs should follow
the result in this matter. Mr.
Freddie was not represented in this court. I therefore order as
follows:
Order
1.
The review application is dismissed save that paragraph 71 of the
Award is substituted as follows:
“
71.
The reinstatement is to operate with retrospective effect from 05
March 2012 and is subject to a final written warning operative
for a
period of 12 months from the date that Siphiwo Freddie resumes his
employment.”
2.
There is no order as to costs.
Rabkin-Naicker
J
Judge
of the Labour Court of South Africa
Appearances:
For the Applicant :
Mr B. Conradie of Bradlie Conradie Attorneys
For
the Third Respondent: In person
[1]
(2012)
33 ILJ 2705(LC)
[2]
(701/2012) [2013] ZASCA 97
[3]
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at paragraph 45