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[2015] ZALCJHB 100
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Pienaar v CCMA Gauteng Tshwane (Pretoria) and Others (JR 2656/13) [2015] ZALCJHB 100 (13 March 2015)
REPUBLIC
OF SOUTH AFRICA
The
Labour Court of South Africa,
In
Johannesburg
Judgment
Case
no: JR 2656/13
DATE:
13 MARCH 2015
Of
interest to other Judges
In
the matter between:
MR
MARQUARD DIRK
PIENAAR
......................................................................................
Applicant
And
CCMA
GAUTENG-TSHWANE
(PRETORIA)
.........................................................
First
Respondent
MR
JODEPH
TSABADI
..........................................................................................
Second
Respondent
UNIVERSITY
OF SOUTH
AFRICA
........................................................................
Third
Respondent
Heard:
4 March 2015
Delivered:
13 March 2015
Summary:
(Review - unfair dismissal for misconduct – finding of
substantive fairness reviewed and set aside – arbitrator
acting
irregularly in not giving the applicant an opportunity to ventilate
his reasons for saying his dismissal automatically unfair
–
despite procedural irregularity evidence properly before the
arbitrator including documents he would not admit failing
to support
applicant’s claim that the real reason for his dismissal was
probably an impermissible one in terms of s 187 of
the LRA –
reinstatement not appropriate – compensation awarded)
JUDGMENT
LAGRANGE,
J
Introduction
[1]
This is a review application of an
arbitration award finding the applicant’s dismissal for
misconduct by the third respondent
(‘UNISA’) was
substantively and procedurally fair
Chronology
[2]
Some milestones in the chronology of events
are outlined below.
[3]
The applicant was employed as a senior
lecturer in the Department of Management Accounting of the University
on 1 April 2009.
[4]
On 20 March 2012 he had a meeting with his
senior, Professor AJ Pienaar, in which he made a statement that led
to a charge of assault
being brought against him in October the same
year.
[5]
On 26 April 2012, over a month later, the
applicant attended a ‘suspension meeting’ presided over
by Prof D Singh
[6]
On 30 April 2012, the applicant was allowed
to work at home pending investigations into allegations of misconduct
against him. This
arrangement did not amount to a suspension as he
was still performing work related duties at home.
[7]
The applicant lodged a voluminous grievance
about his alleged victimisation on 13 July 2012. The victimisation he
claims to have
suffered allegedly went back as far as 2009, but it
was only after he was already working at home, by agreement, that he
lodged
this grievance
[8]
On 26 October 2012, the applicant was
charged with two charges.
“
Charge
1: Assault
It
is alleged that on 20 March 2012, you made a threat of immediate
violence towards your colleagues in the Department of Accounting
by
stating to one Prof A Pienaar that you have the urge to kill some of
your colleagues, alternatively yourself.”
Charge
2: Breach of Trust
You
are charged with a breach of trust in due to your alleged misconduct,
the trust relationship between yourself and the employer
has
irreparably broken down, thereby rendering a continued working
relationship intolerable.”
[9]
On 10 December 2012 the applicant wrote a
letter to Prof M Makhanya and the disciplinary hearing panel giving
his reasons for not
going to the hearing. The principal reasons
listed there were:
9.1
A lack of information relating to the
allegations against him despite his request for same in late November
and early December 2012.
9.2
The fact that he viewed the disciplinary
enquiry would be a waste of time in the absence of his grievance
having been properly investigated
first.
9.3
He regarded the hearing as a continuation
of his victimisation by the University.
[10]
The applicant was dismissed on 12 December
2012, after failing to attend a disciplinary enquiry scheduled for
that day.
[11]
Although the applicant lodged an appeal
against his dismissal he referred his unfair dismissal dispute to the
CCMA on 19 December
2012, and accordingly the university decided it
was pointless dealing with the appeal. The matter could not be
resolved through
conciliation on 8 February 2013.
[12]
In his referral to the CCMA, he had
characterised the dispute as an unfair dismissal and
victimisation/harassment and had indicated
in the tick boxes on the
referral form that also concerned an unfair ‘labour practice
(probation)’ and ‘disclosure
of information’. At
that stage he made no mention of a claim of automatically unfair
dismissal, which he said he only became
aware of later.
[13]
On 20 March 2013, the applicant’s
application to the director of the CCMA to refer his dispute to court
was dismissed. The
reasons given by the director was that he had
failed to make out a proper case in terms of the requirements listed
in section 191
(6) of the LRA, but merely attached an email
communication to various people which was not chronological and did
not set out his
case. The director could not determine on the
application itself what the reasons leading to his dismissal were or
what the charges
levelled against him were.
[14]
The applicant immediately responded by
email to the CCMA, rejecting the decision in the following terms:
“
The
decision is automatically nullified because paragraph 191(7) was not
applied by the director. The decision was also not signed
by the
director of the CCMA. Or it can be delegated but responsibility as
signified by signatures cannot be delegated. There are
also
materially false statements in the decision for example that the case
is not complicated. The application documents clearly
stated that
legal principles of non-pathological criminal incapacity (NPCI) and
the ethical principle of “duties to warn”.
These two
principles are very complicated matters, which the relevance of
cannot be disputed because they are the main defensive
points of Mr
M. D. Pienaar. Further, the 160 pages of the application documents
stated the charges clearly”
[15]
After an extensive arbitration hearing
lasting a number of days, the arbitrator found that the applicant’s
dismissal had been
substantively and procedurally fair. The applicant
has applied to set aside the arbitration award, which was issued on
10 November
2013.
[16]
On 22 January 2014, the applicant applied
to review and set aside the arbitration award. The review application
was late and the
applicant was required to apply for condonation for
the late filing thereof. He had not done so by the time the matter
was heard,
but the University graciously agreed he could still do so
and it would not oppose the application. The Court also agreed to
indulge
in the late filing thereof. Shortly after the review
application was argued, the applicant filed his condonation
application and
after considering his reasons for the lateness and
given the time of year when the delay occurred as well as the obvious
lack of
material prejudice to the University and its willingness not
to oppose the application, I am of the view that the late filing of
the review application should be condoned having regard also to the
merits thereof which are dealt with below.
The
arbitrator’s award
[17]
The arbitrator concluded that on the
evidence the probabilities were overwhelmingly against the applicant.
Moreover, testimony of
the University’s witnesses was even
corroborated by his own version of events. In this regard, the
arbitrator remarked that:
“
The
respondent’s testimony before me, which I accept and is also
corroborated by the applicant’s own version of events
is that
the applicant clearly indicated to Prof. Pienaar in his office and
even during these arbitration proceedings that he had
the urge to
kill someone; referring to his colleagues or alternatively committing
suicide himself allegedly due to the harassment
he was subjected to
the Department.”
[18]
The arbitrator also found that the
applicant had failed to challenge the respondent’s testimony in
material respects and accordingly
it stood unchallenged. In
particular, the arbitrator’s evaluation focused on the
following:
18.1
The
applicant did not deny the violent thoughts he conveyed to his
senior, Prof. A Pienaar (‘Prof Pienaar’)
[1]
,
and the arbitrator found his explanation that he was thinking about
the Afrikaans surname “Moor” when he referred
to “moord”
was unconvincing especially as the applicant had not relied on this
explanation consistently throughout
the arbitration proceedings.
18.2
On the question of the harassment which
allegedly prompted the applicant to make the statement he made to
Prof. Pienaar, the arbitrator
found that the applicant had presented
nothing concrete to the tribunal to demonstrate the harassment he
suffered except his claim
that he was told to mark scripts for a
Professor, which did not amount to harassment but was to be expected
in his job as a senior
lecturer.
18.3
Given that the applicant was a senior
lecturer who ought to be mentoring other lecturers, the arbitrator
found it was unacceptable
for him to think or talk about murdering
his colleagues. In an academic environment and one in which his
colleagues did not want
to work with him, it was understandable that
the University could no longer trust him.
18.4
On the applicant’s failure to attend
his disciplinary enquiry, the arbitrator felt that he should have
been aware of the fact
that grievances were dealt with by a different
section and he should have followed that up with the responsible
persons instead
of using that as a reason for not attending the
enquiry, which was a separate process. If he felt he did not have
sufficient information
to defend himself he should have raised that
at the disciplinary hearing. He also could have raised with
management his complaint
about being escorted to the hearing rather
than simply using that as another reason for not attending the
hearing. In any event,
the University had a duty to protect its
employees from someone who had violent thoughts like the applicant
and University had
little choice but to adopt some precautionary
measures. In this regard, the arbitrator was mindful of the
applicant’s own
version of events, namely that he had reached a
point where he could ‘snap’.
[19]
In relation to the claim that the matter
concerned an automatically unfair dismissal the arbitrator stated the
following in the
introduction to his award:
“
The
dispute was referred to the Commission in terms of section 187 (1)
(f) of the labour relations act 66/199. However, during initial
deliberations it came out that the dispute should have been referred
to the Commission in terms of section 191 91) [(191 (5) (a]
of the
Labour Relations Act 66 of 1995
. It is on this basis that I will deal
with the dispute.”
(
sic
)
Evidence
during the arbitration proceedings
[20]
For the sake of evaluating the merits of
the review application, some of the testimony during the arbitration
proceedings is mentioned
in summary below.
Matters
pertaining to the unfair dismissal dispute for misconduct
[21]
At the arbitration hearing, former
Professor, AJ Pienaar, who had been the applicant’s supervisor,
testified amongst other
things that:
21.1
There
had been complaints from other staff members about the applicant’s
behaviour and requests were made to the head of Department,
Professor
Van Heerden (‘Prof Van Heerden’), to send him for
counselling. Prof Pienaar was concerned that this would
have placed
unnecessary pressure on the applicant and driven him to extremes. On
19 March 2012 he wrote a lengthy letter to Prof
Van Heerden’
arguing in favour of retaining the applicant, despite what he
referred to as the applicant’s ‘behavioural
problems’
and ‘antisocial’ conduct in his evidence. In the letter
Prof Pienaar acknowledged that: it appeared
that the applicant was
suffering from serious psychological problems; Prof Van Heerden was
under pressure to send the applicant
to counselling, and the
applicant was of the view he did not need it. However, in Prof
Pienaar’s opinion he felt that
it would be counter-productive
to pressurise the applicant to undergo counselling because he would
probably refuse to and it would
bring matters to a head, forcing
matters to a point where he might resign or be dismissed. He noted
that he had hoped the applicant
would be a worthy successor to
another lecturer who had left. Lastly, he asked Prof Van Heerden in
the letter to try and ensure
the continuity of the applicant’s
employment by, amongst other things, allowing the applicant to work
directly under himself
and by asking his colleagues to be sensitive
about him and not to take personal offence when he made irrational
comments about
them. On the same day Prof. Pienaar wrote this letter
the applicant had taken a day’s leave.
21.2
The following day, 20 March 2012, the
applicant went to see Prof. Pienaar, and asked him why he was being
harassed by the Department.
Prof. Pienaar, made the applicant sit
down and they spoke for an hour, or possibly two. He had suggested to
the applicant that
perhaps he was too sensitive about things people
did, but the applicant was insistent that he was being harassed. The
applicant
mentioned an incident which occurred in a Krugersdorp
School where a pupil had attacked and killed other pupils with a
sword and
other examples in America which he said were illustrations
of what people who were harassed and did not know how to respond did.
He said that after taking and taking it, people in those situations
would just ‘snap’, but he had not reached that
stage
himself. Prof Pienaar said that:
“
I
experienced it as a plead from his side to prevent the situation. To
stop. To see that my colleagues in the Department stops the
harassment, so that it does not reach that point.”
21.3
The applicant himself said he felt like
committing suicide, murder or killing someone (Ek voel om te moor of
selfmoord).
21.4
The applicant had also said that if he
killed someone he would not go to jail but would be sent overseas and
would receive a new
identity document. It was this further comment
which made Prof. Pienaar think that the applicant’s comment
about feeling
he could murder someone was not merely a way of saying
that he is seriously annoyed.
21.5
Prof. Pienaar was disturbed by what the
applicant had said and felt threatened. This led him to ask if the
applicant had a firearm
and the applicant told him he was not allowed
to have one after he had been diagnosed with depression in 2008. He
had asked about
the firearm out of concern for his own safety and
that of the other staff.
21.6
When he was asked how he felt about working
with the applicant after the conversation on 20 March 2012 he said
the following:
“
I
was okay but I was concerned because there something which I did not
know, maybe there was some conduct, which I was uncertain
of, whether
someone in the department could say something wrong and you know just
get the guy aggressive or do something.”
Prof
Pienaar said that the applicant had used a strong word suggesting
thathe could actually ‘donder’ (or some similar
word), a
particular colleague, but he did not think he would actually do it.
What did concern him was that it could happen in the
weeks or months
afterwards. He had always had a good working relationship with the
applicant and his work ethic was good, but the
things he said that
day extremely concerned him and he felt it would be irresponsible of
them to keep silent about it and let it
go by. The conversation
changed his view about the applicant undergoing counselling and
getting professional help. He did not feel
that it was him alone who
was in danger but so was the rest of the Department because he could
walk into the offices and hurt people.
21.7
What did happen after this encounter was
that there were one or two meetings involving the applicant and a
staff member responsible
for the University’s wellness program.
However, after that the applicant refused to participate further in
the program and
said that it was not him who had a problem but other
people.
21.8
Much of the applicant’s
cross-examination of Prof. Pienaar focussed on whether the
applicant’s utterances about his
violent thoughts and being at
a breaking point were intended as a threat or a warning.
21.9
In addition, the applicant challenged the
notion that his comments could really have been construed as a
serious and imminent threat
given that he was only asked to work off
campus some about six weeks later at the end of April 2012. In this
regard, Prof. Pienaar’s
response to this line of questioning
was equivocal and the only explanation he could offer for UNISA’s
slow reaction was
that the university followed its own process and he
could not answer on behalf of the UNISA authorities. However he
personally
thought it was urgent enough to report it on the same day.
21.10
Prof. Pienaar did concede that he would not
have had subsequent meetings with the applicant if he had thought he
was in serious
danger and agreed that there was no physical assault
or imminent threat of physical assault: it was only in the wider
sense of
the threat which was made that the applicant’s
utterances amounted to an assault.
21.11
After extensive debate with the applicant,
he also agreed that it was possible to see the applicant’s
utterances as a warning
rather than a threat.
[22]
The university’s second witness was
Professor W J Coetzee, who was the acting head of the Department at
the time. Salient
aspects of his evidence were that:
22.1
The applicant had initially been assigned
to work with Mr L Crawford and was later moved to another course
because they encountered
difficulties working together. The applicant
also did not want to work with female employees and they had
complained that he made
threats towards them. Although the
applicant’s work standards were high, nobody else wanted to
work with him.
[23]
The University’s Manager:
Disciplinary & Incapacity Enforcement (Labour Law Section), Mr J
M Labuschagne, testified that:
23.1
The applicant’s disciplinary enquiry
was postponed at his request from 13 November 2012 to 12 December
2012 as the applicant
was writing an exam.
23.2
The applicant did not attend the enquiry
and the matter was heard
in absentia
.
After his dismissal, the applicant did lodge an appeal butthe appeal
hearing did not take place because the matter had already
been
referred to the CCMA by the applicant.
[24]
When the applicant testified in his
defence, he stated amongst other things that:
24.1
He had gone to speak to Prof. Pienaar
because of prior events in which he had expected by others to be
dishonest. This was against
his faith and he felt victimised because
he would not act dishonestly.
24.2
He agreed that he did have violent suicidal
thoughts because of the way in which he believed he had been harassed
or victimised,
but he saw that as normal behaviour for someone in his
situation. Although he did not see his behaviour as threatening, he
felt
it was his duty to warn Prof. Pienaar because he was motivated
by an urge to protect other staff members and himself. He warned
that
there was a possibility of him acting with non-pathological criminal
incapacity (‘NPCI’) due to the ongoing victimisation
he
had suffered, though he did not specifically use the term NPCI in his
conversation with Prof Pienaar. There was also no reason
for other
staff members to be afraid of him because he did not know where they
lived.
24.3
After the conversation on 20 March, the
victimisation stopped and his violent thoughts also ceased.
24.4
He did not attend the hearing on 12
December 2012 because his grievance had not been attended to and he
had not received information
he had requested pertaining in
particular to a document which led to the suspension meeting being
held. He also found it completely
unacceptable that he should have to
be accompanied to the hearing by a security official.
[25]
The applicant believes that he had been
dismissed for expressing his thoughts. In explaining his conduct, he
sought to explain that
he had used the word ‘moor’ rather
than the word ‘moord’. The word ‘moor’ was
not the same
as the word ‘moord’. He also made much of
the issue of whether he said he could ‘crack’ or ‘snap’
because of the victimisation, though it is unclear why anything
should turn on which word he used.
Matters
pertaining to the applicant’s claim that his dismissal was
automatically unfair and should be determined by the labour
court
[26]
At the start of the record of proceedings,
the university’s representative, Mr M Ramotlou, commenced by
introducing the dispute
as one relating to the applicant’s
dismissal for assault. The following then appears in the transcript:
“
COMMISSIONER
JOSEPH TSABADI: Allright I will be then in agreement that it is an
unfair dismissal dispute and not a um an automatically
unfair
dismissal dispute related to discrimination.
MR.
MARQUARD DIRK PIENAAR: No, I say that it is an automatic unfair
dismissal and I because of that have referred it to the Labour
Court.
COMMISSIONER
JOSEPH TSABADI: You have referred to the Labour Court.
MR
MARQUARD DIRK PIENAAR: No
well I asked the CCMA to refer it to the
Labour Court, with this document
and um then the CCMA decided
that um they will not referred to the Labour Court, so according to
the Labour Relations
Act as I understand it I have to go along
with the arbitration and if I do not agree with the decision of the
arbitration then I
can um referred myself to the Labour Court after
that
.
So I still contend that it was an unfair automatically
unfair dismissal and um the outcome of this arbitration
. It can
be favourable, so it can halt the procedures, but if its not
favourable, then it will go forward, most probably. I cannot
say that
it shall go forward, but I think it definitely it will go forward if
I do not get a favourable decision. The unfair,
the automatic
unfair dismissal was explained in this document
. There was quite
a lot of issues in the
Labour Relations Act, that
was not complied to
and broken by UNISA and the union.”
(
emphasis
added
)
[27]
At this point, the debate with the
Commissioner diverted briefly into a discussion of the role of the
union in the matter because
the applicant had a complaint about the
way his union had represented him in the suspension meeting.
Thereafter there was a debate
and exchange of documents. During the
course of that exchange, it appears that the applicant submitted the
document which he had
provided initially in support of his request
for the matter to be referred by the Director of the CCMA to the
Labour Court. The
Commissioner queried the use of the document
because it related to the Labour Court referral, which the CCMA
Director had turned
down. The applicant agreed but pointed out that
he could still use it as evidence “…because the unfair
dismissal is
explained in here and everybody has the documents…”
[28]
The arbitrator then pointed out that the
certificate of outcome described the dismissal as one for misconduct,
to which the applicant
responded that during the conciliation he did
not even have time to explain himself before the Commissioner issued
the certificate.
The arbitrator pointed out that the purpose of the
conciliation was not to listen to the merits of the dispute, but
nevertheless
said “…
as the
matter stands before me know in terms of the certificate of outcome,
this is a dismissal relate to a misconduct
.”
In reply, the applicant said:
“
No,
it is a very complicated long case and this document that I submitted
to the CCMA states here, it is a case relating to an unfair
dismissal, disclosure of information, unfair labour practice
(probation) and harassment (victimisation). So there is one, two,
three. There is 4 things that are applicable here. And then, I mean,
after I wrote this document a lot of additional things came
to light.
I did not know those things about the
Labour Relations Act that
was
broken. When I wrote this document, but did not even know what an
unfair, automatic unfair dismissal was.”
[29]
Later on in the course of further
preliminary discussions and before any evidence was led, the
arbitrator outlined the distinction
between the procedural and
substantive fairness of a dismissal. The applicant confirmed he was
contesting both. Both parties were
then invited to make opening
statements. The applicant made a very extensive opening statement. In
the course of that presentation,
the central features of his case
which he identified and emphasised were the following: he was
victimised because he wanted to
do research instead of pursuing
private work; the extent and degree of victimisation or harassment
over a significant period of
time which he believed he had been
subjected to; the development of violent and suicidal thoughts caused
by what he perceived to
be the relentless nature of the
victimisation; how he had tried to warn Prof. Pienaar that as a
result of the stress caused by
the alleged victimisation he feared it
was possible he might end up in a state of non-pathological criminal
incapacity and that
he could snap if provoked; even when the
victimisation ceased after his discussion on 20 March 2012 with Prof.
Pienaar, his tormentors
still wanted to get rid of him so they
initiated proceedings to suspend him; the disciplinary proceedings
initiated against him
were not
bona fide
because the University refused to investigate his complaint about the
victimisation which had led to his discussion on 20 March
2012 and
ultimately to his dismissal; that the charge of assault and the
alleged imminent threat posed by him was non-existent,
and the
absence of any breach of trust committed by him in relation to the
University.
[30]
In the course of this lengthy address, the
applicant did make some reference to factors which might have made
his dismissal automatically
unfair. Thus, in his introductory
comments he said that: “
There were
many laws, many of the LRA sections broken that made it an automatic
unfair dismissal. Then there are the UNISA rules.
And all the
employees of UNISA must comply to those rules…
”
The only occasion during his opening statement that he referred to a
particular ground on which he might claim that his
dismissal was
automatically unfair was when he stated the following:
“
And
then there is another very important issue. It relates to Sociology
of Knowledge. This Prof Coetzee says that I think I’m
Jesus. So
there is a serious, a very serious Sociology of Knowledge problem in
this case. And that that um, he said it during the
hearing. That is
so much against the
Labour Relations Act. The
Labour Relations Act
says
religion cannot be held against anyone in a work situation that
makes me think it an an?, that‘s one of the things that make
it
automatic unfair dismissal. And it is not only him. There were many
people, there were other people that I mentioned in that
in this
document, and who made references like that, that think I am quite.
Jesus. The I hope that gives you a good background
of the case and
that puts you in perspective of what happened and um to understand
the testimony that will come out. They are lying
in the testimony.
During the hearing there were many lies, which I have on record, and
I can prove it…”
[31]
When the applicant cross-examined Prof.
Pienaar, the thrust of his attack on Prof. Pienaar’s evidence
in chief was focused
on whether the applicant’s utterances
about his violent thoughts constituted an immediate threat of assault
or simply reflected
an attempt by him to alert Prof. Pienaar to the
possibility of what could happen if he reached a breaking point. He
also attacked
Prof. Pienaar’s neutrality as a witness because
he owned a Spar outlet which meant that he would also be hostile to
the applicant’
s attitude that staff should not be involved in
outside businesses. Lastly, the applicant asked Prof. Pienaar if he
thought that
he was insane. Prof. Pienaar said that he felt that some
of the things the applicant said were completely irrational in his
view.
However, the thought the applicant had some ‘problems’
though he found the term ‘insane’ too strong a word
to
describe the applicant. Prof Pienaar then gave some examples of
instances of issues raised by the applicant which he regarded
as
illustrative of what he perceived to be the applicant’s
irrationality. The applicant then sought to curtail Prof. Pienaar
raising further examples and the following exchange took place:
“
MR
MARQUARD DIRK PIENAAR: Is it important Mr Commissioner, to go on with
this discussion?
COMMISSIONER
JOSEPH TSABADI: No.
MR
MARQUARD DIRK PIENAAR:
Because according to me, it is, the whole
charge, everything relates to 20 March and anything outside of that
is irrelevant actually
. And the thing is there is now already
documents about 400 pages, where I have to just defend all the time,
and things that he
does not understand I have to explain to him. I
have to explain Non-Pathological Criminal Incapacity. I have to
defend all the
time and the documents build up and build up and build
up, but actually there is only one thing that is relevant. The 20
th
of March.
MR.
BRAM JOHANNES PIENAAR: I will tell you why it is important. Yes,
because, you said that people are harassing you and that if
they do
not stop harassing you, you could snap, and in my view there was
nothing that I could do about the so-called harassing
and I want to
illustrate why I feel that I cannot address that sort of harassing,
harassment, because to me it is completely illogical
that you could
call it harassment.”
(emphasis added)
[32]
The applicant then attempted to get Prof.
Pienaar to concede that the harassment had stopped after they had
spoken on 20
th
of March 2012. Although Prof. Pienaar conceded that he had
communicated to others that they should not ‘harass’ the
applicant, he said he was only referring to harassment in the sense
that the applicant understood it. Personally, he did not agree
that
the applicant’s complaints could really be truly characterised
as harassment at all. The applicant also pursued a further
line of
questioning with Prof. Pienaar relating to whether the University had
dealt with him properly by treating the matter as
a disciplinary one
rather than an incapacity issue.
Evaluation
of the review application
[33]
The applicant raised numerous and disparate
grounds of review and clearly tried to find one or other basis for
setting aside the
award under every provision of
section 145
of the
LRA. Many of these grounds relate to alleged failures in the
reasoning of the commissioner. A couple of others relate to
procedural matters. Another substantive ground of review concerns
whether or not the arbitrator ought to have realised that he
was
dealing with an automatically unfair dismissal case which should have
been referred to the Labour Court. This latter argument
is only set
out in any material detail in the applicant’s heads of
argument. As in the case of his identification of grounds
of review
under
s 145
, it appears that he sought to canvass almost every
possible ground of discrimination contemplated in
section 187(1)
,
except subsection (e). By contrast, in his founding affidavit he
merely stated that the CCMA arbitrator had to decide a case about
an
automatically unfair dismissal over which the CCMA had no
jurisdiction. As best as I can, I have attempted to group the various
grounds set out in the founding affidavit.
[34]
Firstly, the applicant claims that the
arbitrator ought not to have accepted jurisdiction over the dispute
because it amounted to
an automatically unfair dismissal. Secondly,
in any event, the arbitrator could not have reasonably found that he
was guilty of
assault or that there had been a breakdown of trust
justifying his dismissal. He also raises a number of alleged
irregularities
or acts of misconduct committed by the arbitrator in
the course of the proceedings. Although the applicant clearly has a
difficulty
in prioritising and identifying the most important aspects
of his claim, his main complaints in relation to the conduct of the
arbitration proceedings appear to be that:
34.1
The arbitrator prevented him from leading
evidence about the details of his alleged victimisation or evidence
relating to his claim
that the dismissal was automatically unfair;
34.2
The arbitrator also failed to assist him in
obtaining evidence which the University had hitherto failed to
provide. This consisted
of a report compiled in terms of clause 4.1
of the UNISA’s disciplinary code, which prompted the suspension
meeting with
Prof Singh.
34.3
The arbitrator acted in a biased and
prejudicial manner by falsely representing that he had agreed to file
heads of argument by
a certain date, whereas he had explained to the
arbitrator could not do so because that date coincided with an exam
he was writing.
34.4
The arbitrator also improperly refused to
consider the heads of argument which the applicant did file before
the award was issued.
A further criticism is that the arbitrator
should have allowed the parties to simply present oral argument at
the end of the hearing
rather than attempting to secure an agreement
on the submission of written argument.
34.5
The fact that the arbitration proceedings
took place over a whole year was also a gross irregularity for which
he blamed the arbitrator
and, or alternatively, the CCMA.
[35]
In the course of the evaluation which
follows, I do not intend to address every ground of review, but only
those that can be construed
as grounds of review that materially
affect the outcome of this application.
Claim
of automatically unfair dismissal and the arbitrator’s failure
to consider documents in support of that claim
[36]
As mentioned, in his founding affidavit the
applicant merely refers to the arbitrator mistakenly deciding his
unfair dismissal claim
as an ordinary dismissal dispute when he ought
to have realised it concerned an automatically unfair dismissal. The
first point
that needs to be made is that a detailed factual basis
for this claim is only set out for the first time in the applicant’s
heads of argumentfiled in these proceedings on 16 February 2015. In
his founding affidavit, the applicant gave no inkling of the
factual
basis on which he claimed the arbitrator had misconstrued the nature
of the dispute before him. All that appears in his founding
papers,
in what the applicant referred to as his ‘4
th
affidavit’, is the following on page 9:
“
-
The CCMA was asked to refer the case to the Labour Court due to the
complicated matter, which has, according to Mnr. M D Pienaar’s
knowledge, no precedent to learn from, and because it was an
automatic unfair dismissal. The CCMA then did not allow Mnr. M D
Pienaar to motivate his request verbally and did not refer the case
to the Labour Court, as the CCMA should have done, according
to
section 191
(6) and
191
(7) of the
Labour Relations Act and
according
to jurisdiction issues. Therefore, because of the other problems,
the
case is now before the court for review according to
section 191
(10)
of the
Labour Relations Act.
-
Mnr. M D Pienaar understands that the CCMA has not
jurisdiction over automatic unfair dismissal cases.
During the
CCMA arbitration proceedings, evidence, which proves discrimination,
and facts was required to victimisation, were not
allowed by the
Commissioner
. Those matters were matters, which the court would
have addressed, if the case was referred to the Labour Court as
requested by
Mnr. M D Pienaar.”
(
sic
–
emphasis added)
[37]
The first point that needs to be made is
that the applicant appeared to be under a misconception that his
review application in
these proceedings included a review of the
decision of the director of the CCMA under
section 191
(6). During
the course of the application hearing it was pointed out that the
relief set out in his notice of motion only refers
to the
arbitrator’s award in which his dismissal was found to be
procedurally and substantively unfair: it does not make
mention of
the director’s ruling under
section 191(6)
refusing to refer
his case to the Labour Court. Consequently, the court is not seized
with a review of the Director’s ruling.
[38]
Section 191(6)
, properly contextualised
with reference to
sections 191(5)
and
191
(5A) to which it refers,
was not intended to be an indirect method for referring an alleged
automatically unfair dismissal dispute
to the Labour Court. The
provision was clearly intended only for disputes which do fall within
the arbitral jurisdiction of the
CCMA, but in which one or more of
the factors in the section made it desirable for a matter to be heard
by the Labour Court. Whatever
the ruling of the Director under
s191
,
that ruling cannot cloak a Commissioner with authority to hear a
matter falling outside the CCMA’s arbitral jurisdiction.
[39]
Consequently, an issue which still arises
is whether the arbitrator ought to have stopped the arbitration
proceedings on the basis
that the real nature of the dispute before
him did not fall within the jurisdiction of the CCMA to determine. A
related criticism
is that the arbitrator improperly failed to allow
the applicant to lead evidence to demonstrate the real nature of his
claim. I
will consider this criticism first.
[40]
From the record it appears that the
applicant wanted to introduce his motivation to the CCMA Director for
the referral of his matter
to the Labour Court under
section 191(6)
as part of the material the arbitrator ought to consider. In that
document, the applicant made two express references to an
automatically
unfair dismissal, namely under
section 187(1)(d)
and
(f). In relation to subsection 187(1)(d) the applicant claimed that
he had indicated the possibility of taking legal action
in two emails
to the Head of the School of Accounting and the Head of Department of
Management Accounting respectively on 20 January
2012 and 28 March
2012 respectively. He claimed he further mentioned it in a meeting
with the legal Department on 26 April 2012.
[41]
where the applicant refers to
section
187(1)(f)
in his written motivation to the CCMA Director to refer the
matter to the Labour Court there is footnote in which , he mentions
that in the outcome of the disciplinary enquiry it was said that he
prioritised his Christian faith above reason. The footnote
also
states that other circumstances relevant to his claim of
automatically unfair dismissal under
s187(1)(f)
were to be found in
his ‘victimisation document’ of 13 July 2012. The
applicant went on to suggest that
he was identified as
being homosexual on the basis that there was some connection made by
some of his colleagues between people
who were honest, such as
himself, and people who were homosexual.
[42]
In a section of the victimisation document,
which was the basis of his grievance, the applicant deals with what
he described as
‘Possible Motives for Victimisation and Other
Proof’. The only issues that can be discerned in this somewhat
rambling
section of the document are: a reference to “God
thoughts” on the part of his colleagues which he believed
played a
role in his victimisation, and a perception of the part of
the applicant, based on remarks by colleagues, that he was being
victimised
because they thought, according to his perception, that he
was homosexual. On the face of it, it seems ‘God thoughts’
also refers to the applicant’s complaint that someone said he
thinks he is Jesus and similar comments.
[43]
Having regard to these documents, which the
applicant was prevented from referring to by the arbitrator, and
given his protestations
at the arbitration that his case concerned an
automatically unfair dismissal, in the course of which he again
identified religion
as a specific factor making his dismissal
automatically unfair, I believe that the Commissioner was unduly
brusque in dealing with
the applicant’s representations that
his dismissal was automatically unfair. Once the applicant had raised
these issues,
the arbitrator ought at least to have interrogated his
reasoning to clarify if there was any substantial basis for making
that
claim. In that respect, the arbitrator committed a reviewable
irregularity. However, in this instance, I do not believe the award
should be set aside for that reason in the light of the analysis
below.
[44]
Having said that, it is also very clear
from the applicant’s own representations both in the
arbitration proceedings and in
the review application that he also
contended that his dismissal on grounds of misconduct was
procedurally and substantively unfair.
That dispute is clearly one
falling within the arbitral jurisdiction of the CCMA and was before
the arbitrator. When it was plain
that the arbitrator was not going
to stop the proceedings but was going to determine the substantive
and procedural fairness of
the applicant’s dismissal for
misconduct, the applicant did not formally abandon his claim of
automatically unfair dismissal,
but during the remainder of the
proceedings he vigorously prosecuted his claim that his dismissal for
misconduct was unfair on
both the procedural and substantive grounds.
[45]
Although
the arbitrator might have failed to permit the admission of documents
relevant to the applicant’s other claim that
his dismissal was
automatically unfair, it does not necessarily mean that the outcome
would have been different if he had dealt
more thoroughly with ‘the
substantial merits of the dispute' in deciding that the basis that
the real reason for the dismissal
was misconduct in the sense meant
by the Constitutional Court in the judgement in
Commercial
Workers Union of SA v Tao Ying Metal Industries & Others
[2]
.
That judgment affirmed the correctness of the approach initially
adopted in
Wardlaw
v Supreme Moulding (Pty) Ltd
[3]
,
in which the LAC held that when deciding whether a dismissal dispute
before the Labour Court fell within its jurisdiction, the
Court ought
to adopt a substantive approach rather than relying on the formal
characterisation of the dispute by the employee in
the referral of
the dismissal to the Labour Court.
[4]
In
National
Union of Metalworkers of SA on behalf of Sinuko v Powertech
Transformers (DPM) & others
[5]
, the LAC recently confirmed
that the principal equally applies to determination of the real
nature of the dismissal dispute by
an arbitrator.
[6]
[46]
Even if it is accepted that the arbitrator
ought to have considered the documents presented by the applicant and
that failure constituted
an irregularity, I am still not persuaded
that his decision to treat the real nature of the dispute as an
alleged unfair dismissal
for misconduct could be construed as a
jurisdictional error even if the evidence of the documents which the
applicant wished to
tender in support of his claim that his dismissal
was automatically unfair
are
taken into account.
[47]
If one has regard to the applicant’s
motivation for the matter being referred to the Labour Court which he
placed before the
Director of the CCMA under
section 191
and if one
has regard to the supporting documents he cited therein, which he
also intended to rely on in persuading the arbitrator
that his case
concerned an automatically unfair dismissal, at best for the
applicant they are confined to three issues namely:
47.1
dismissal for a reason relating to
religion;
47.2
dismissal for a reason relating to his
perceived sexual orientation, and
47.3
dismissal because he expressed his
intention to exercise his rights by taking legal action on three
different occasions.
[48]
In regard to the first two possible grounds
on which his dismissal might be construed as automatically unfair it
must be said that
the applicant’s case in that regard appears
to be based on his interpretation of comments by his colleagues
which, objectively
speaking, are far from unambiguous expressions of
hostility towards him on an unfairly discriminatory grounds. On the
contrary,
they are open to various interpretations and not
necessarily those which the applicant favours. In addition, the
applicant provides
no explanation why the bigoted attitudes he
attributes to his colleagues were also shared by and informed the
reasoning of the
chairperson of the disciplinary enquiry.
[49]
In relation to his allegation that his
dismissal was retaliation for him threatening to exercise his rights,
the first intimation
that he might take action to exercise his rights
took place on 20 January 2012. The incident with Prof. Pienaar took
place on 20
March 2012 and appears to have been the most obvious
reason for convening the suspension meeting convened 26 April 2012.
It was
in the course of this meeting that he mentions his intention
to take action to protect his rights for the third time. The first
time he actually took such a step was when he filed his grievance of
13 July 2012, but it was only some months later in filed his
grievance on 13 July 2012.The University’s response to his
grievance appears to have been one of inaction. What the University
did do after 20 March 2012 was to arrange counselling for the
applicant, which he decided to discontinue. Prof. Pienaar’s
evidence that the applicant had discontinued it because he did not
see himself as having a problem but that the problem lay with
his
colleagues was not disputed by the applicant. Considering the
sequence of events leading to the disciplinary action, it is
far from
readily apparent that the applicant’s stated intention of
taking action to protect his rights on the occasions mentioned
featured as a more probable proximate reason for his dismissal than
the incident on 20 March 2012 and its aftermath, especially
as the
university at least initially tried to deal with the issue in a
non-punitive way.
[50]
Furthermore, it is apparent from the
applicant’s own opening statement in the arbitration
proceedings that the thrust of his
case was directed at the
substantive and procedural unfairness of his dismissal for assault.
Essentially, the relevance of victimisation
in that narrative was
that, he believed that if he could lead evidence of his victimisation
he would be able to show why he had
nearly reached a mental breaking
point when he met with Prof. Pienaar on 20 March 2012, which in turn
would show that others had
driven him to that situation. The evidence
of victimisation or harassment was not seen as primarily important
because it revealed
why his dismissal was unfair for a prohibited
reason under
s 187..
[51]
Considering the applicant’s
motivation based on the documents which the applicant wished to
introduce and in the light of
his own representations at the
arbitration, I do not believe that they demonstrate that it was
probable that the real reason for
his dismissal related to one of
those prohibited grounds than simply the stated ground of misconduct,
even if that ground was an
ill-conceived basis for dismissing the
applicant. Consequently, the arbitrator’s decision that the
real dispute he was dealing
with was an unfair dismissal for
misconduct rather than an automatically unfair dismissal was
ultimately correct on the evidence
that was properly before him,
notwithstanding the shortcomings in his own handling of the evidence,
and he did have jurisdiction
to determine the dispute.
Were
the arbitrator’s findings relating to the substantive and
procedural fairness of the dispute ones that no reasonable
arbitrator
could have reached?
The
approach to set aside an arbitrator’s findings on the merits
[52]
I accept that a lay person may not fully
appreciate the distinction between the test of review and an appeal.
It is a distinction
that lawyers also grapple with. With that in
mind, where the applicant has expressed criticism of the arbitrator’s
findings
as if he were engaged in an appeal, I have treated these as
attacks on the reasonableness of the arbitrator’s findings
rather
than simply dismissing them because they are not phrased in
the form of grounds of review. Nevertheless, those criticisms can
only
be evaluated on the review standard which is more onerous than
the test for a successful appeal. When evaluating a Commissioner’s
assessment of evidence and the logic of his reasoning, the applicable
test on review is not whether the arbitrator was right but
whether
the findings which the arbitrator reached are ones that could have
been reached by a reasonable arbitrator. The test does
not concern
the coherence of the arbitrator’s own reasoning, but whether no
reasonable arbitrator could have arrived at the
conclusions he did.
This implies that more than one interpretation of the evidence can be
found to be acceptable, provided that
interpretation can be justified
on the evidence as a plausible one.
[53]
It is important to stress that it is not
necessary for the Court on review to consider if the arbitrator
reached the right conclusions,
but simply to decide if the conclusion
reached is insupportable on the evidence that was before the
arbitrator. At this point,
it is also important to mention that it is
only the evidence that was placed before the arbitrator in the course
of oral testimony
being led that the arbitrator was obliged to
consider. The mere fact that documents were handed up as part of a
bundle does not
make them part of the evidence until they are
referred to by a witness in the course of their evidence or unless
the parties agree
that the documents may form part of the evidence
without having to be introduced in the course of examining a witness.
Practically
speaking, this means that evidence led at the
disciplinary enquiry does not become part of the record before the
arbitrator unless
referred to by the parties in the course of leading
evidence at the arbitration hearing.
[54]
For
the sake of completeness, the approach to reviewing an arbitration
award on the grounds of reasonableness has been expressed
in the
following way in
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
[7]
:
“…
the
award was one that a reasonable decision maker could not reach.
That
test involves the reviewing court examining the merits of the case
'in the round' by determining whether, in the light of the
issue
raised by the dispute under arbitration, the outcome reached by the
arbitrator was not one that could reasonably be
reached on the
evidence and other material properly before the arbitrator. On this
approach the reasoning of the arbitrator assumes
less importance than
it does on the SCA test, where a flaw in the reasons results in the
award being set aside
.
The reasons are still considered in order to see how the arbitrator
reached the result.
That
assists the court to determine whether that result can reasonably be
reached by that route. If not, however, the court must
still consider
whether, apart from those reasons, the result is one a reasonable
decision maker could reach in the light of the
issues and the
evidence
.”
[8]
In
evaluating the review application therefore, the issue is not whether
or not the arbitrator did not mention or appear to consider
certain
evidence, but whether his findings were nonetheless competent in the
sense that a reasonable arbitrator could have arrived
at the same
findings on the available evidence, even if other reasonable
arbitrators might have concluded otherwise on the same
evidence.
Procedural
fairness
[55]
Essentially, the arbitrator’s finding
that the applicant’s dismissal was procedurally unfair was
based on the fact that
the applicant was given a reasonable
opportunity to defend himself against the charge, which he declined
to use.
[56]
The applicant complained that the
arbitrator acted contrary to the LRA in deciding that the principles
of natural justice had been
met in the conduct of his disciplinary
proceedings. In the applicant’s view, the correct standard to
comply with, was not
the principles of natural justice but the LRA.
He further believes that the Commissioner’s reference to the
principles of
natural justice was somehow a reference to human
sacrifice. I appreciate that the applicant although well-educated may
not understand
common legal terminology. It is plain that these
criticisms of the arbitrator’s reasoning on procedural fairness
stemmed
from the applicant’s misunderstanding of the term
natural justice in the context of an inquiry. In the context of an
inquiry,
it refers to the basic requirements of a fair hearing, which
are expressed succinctly in item 4(1) of Schedule 8 of the LRA,
namely:
“
(1)
Normally, the employer should conduct an investigation to determine
whether there are grounds for dismissal. This does not need
to be a
formal enquiry. The employer should notify the employee of the
allegations using a form and language that the employee
can
reasonably understand. The employee should be allowed the opportunity
to state a case in response to the allegations. The employee
should
be entitled to a reasonable time to prepare the response and to the
assistance of a trade union representative or fellow
employee. After
the enquiry, the employer should communicate the decision taken, and
preferably furnish the employee with written
notification of that
decision.”
[57]
The fundamental problem the applicant has
in relation to his claim of procedural unfairness, is that the
enquiry was reconvened
at his convenience and yet he still failed to
attend for reasons relating to his unresolved grievance and for lack
of information,
instead of attending and raising those points with
the chairperson. I cannot find fault with the arbitrator’s
reasoning on
the procedural fairness of the applicant’s
dismissal.
Substantive
fairness
[58]
I can find nothing unreasonable about the
arbitrator’s conclusion that the University had a
responsibility to take action
after the applicant had conveyed his
violent thoughts to Prof. Pienaar. Undoubtedly, it would have been
negligent in its duty of
care towards other staff to provide a safe
working environment if it had done nothing after Prof Pienaar
reported his conversation
on 20 March 2012 with the applicant. What
is more difficult to understand is how the arbitrator could have
concluded that the applicant
was conveying an intentional threat of
imminent physical harm to one or more of his colleagues, or that his
utterances were actually
or reasonably understood to mean that.
[59]
The arbitrator did not address himself to
the absence of any plausible justification why the supposed threat of
violence was addressed
in such a dilatory fashion by the University
authorities. Prof Pienaar could only speculate about the University’s
delay
in addressing the matter. No other witness on behalf of UNISA
provided an explanation why Prof. Pienaar’s report of the
incident
did not compel it to deal with the situation promptly as one
might expect a reasonable employer to address an assault, in the
sense
of a threat of imminent violence. Prof. Pienaar himself
conceded that he interpreted the applicant’s utterances as a
plea
rather than a threat. He also agreed that he would not have had
subsequent meetings with the applicant if he had believed there
was
an imminent threat of assault. In his cross-examination of Prof.
Pienaar, the applicant also queried why the issue of his mental
state
became an issue in the enquiry if his dismissal related to misconduct
and why the University had not dealt with the matter
as one of
incapacity if he was considered irrational or insane. The arbitrator
evaluated the evidence of the alleged assault on
a narrow basis and
without regard to Prof Pienaar’s own evidence under
cross-examination and without considering the implications
of the
University’s lackadaisical response to the supposed threat. He
also failed to consider why the University saw fit
to ask the
applicant to undergo counselling if indeed it believed what he had
done was an act of assault constituting serious
misconduct
warranting dismissal.
[60]
On the evidence, I do not believe that it
was reasonable of the arbitrator to conclude that this was a simple
matter of the applicant
committing misconduct in the form of an
assault in the sense of conveying an immediate and malevolent intent
to cause physical
harm to his colleagues. It should have been obvious
that the risk of the applicant becoming violent was raised by him as
a plea
for help because he could not cope with what he perceived to
be the hostile conduct of his colleagues towards him. The only
reasonable
conclusion to draw from the University not taking
immediate steps to remove him from the presence of his colleagues but
to ask
him to undergo counselling was that it also recognised those
utterances did not constitute misconduct, even if they were
indicative
of a serious issue which needed to be resolved.
Undoubtedly, the University was faced with a problem when its chosen
approach to
dealing with it was undermined by the applicant
withdrawing from the counselling process. Instead of escalating the
matter by initiating
an inquiry into the applicant’s capacity
to continue working in the Department, the University clumsily and
belatedly decided
to deal with it simply as a matter of misconduct.
[61]
In the light of all the evidence before
him, the arbitrator’s conclusion that the applicant was guilty
of assault and ought
to be dismissed for that reason is not one that
a reasonable arbitrator could have reached in my view.
Determination
of appropriate relief
[62]
The effect of the finding on the
unreasonableness of the Commissioner’s conclusion that the
applicant was guilty of assault
is that his dismissal for that reason
was substantively unfair. The question the Court must then consider
is what an appropriate
relief should be. Ordinarily a finding of
substantive unfairness would give rise to an order of reinstatement.
However, on the
facts of this case I believe the circumstances are
such that a continued employment relationship would be intolerable
for the following
reasons. The applicant’s utterances did
require the University to take action. The remedial action it
initially took was
to initiate counselling for the applicant. He, of
his own accord, abandoned that process apparently because he did not
perceive
himself as the one having problems, but that the problems
lay with his other colleagues. He did not challenge the evidence of
Prof.
Pienaar to this effect. The applicant approached Prof. Pienaar
on the basis that he might not be able to control his actions if
he
continued to be harassed by his colleagues, as he perceived it. He
claims that after he had spoken to Prof Pienaar the harassment
did
stop and by implication the possibility of him ‘cracking’
diminished. It should also be mentioned that he reached
this critical
potentially dangerous state before he had even filed a grievance
about the harassment.
[63]
Under these circumstances, if the Court
were to reinstate the applicant, who on the one hand felt he might
involuntarily do something
dangerous but on the other was not
prepared to undergo counselling in an effort to address the problem,
the Court would be as irresponsible
as an employer that did nothing
when an employee declined to cooperate further with remedial measures
it had set in place. I am
aware that the applicant is of the firm
belief that his problems lay entirely with his colleagues and not
with him and that the
University failed to address his grievances
about victimisation. I also note his claim that he believed the
harassment stopped
after he had spoken to Prof Pienaar and that he
believes that Prof. Pienaar acknowledged the existence of harassment
by saying
that it should stop. However, Prof. Pienaar made it
abundantly clear that in his view it was merely the applicant’s
perception
that he was being harassed and that objectively speaking
there was no basis for saying that. Indeed, if one has regard to some
of the examples he gave as evidence, it is not unreasonable to
conclude that the applicant construed remarks by, and social
interaction
with, his colleagues negatively, even if that conduct
could be interpreted quite differently. There was also evidence that
colleagues
had complained that they found him difficult to work with.
In these circumstances, where the applicant believes no remedial
action
is required on his part to minimise the possibility of a
recurrence of the situation which had arisen by20 March 2012,
reinstatement
would be intolerable and at the very least not
reasonably practicable.
[64]
Consequently, the alternative remedy of
compensation must be considered. The applicant was employed by the
University for over three
and a half years at the time of his
dismissal. Even though the applicant’s dismissal for misconduct
was misguided and incorrect,
the applicant’s abandonment of
counselling as one constructive approach to dealing with the
underlying issues is also a factor
affecting the appropriate level of
compensation. In the circumstances, I believe that compensation in
the amount of five months
remuneration is reasonable and fair.
[65]
In light of the above, it is ordered that:
65.1
The applicant’s late referral of this
review application is condoned.
65.2
The finding of the second respondent in his
award dated 10 November 2013 issued under case number GAJB 33496-12
that the applicant’s
dismissal for misconduct was substantively
fair is reviewed and set aside, and is substituted with a finding
that the applicant’s
dismissal for misconduct was substantively
unfair.
65.3
The third respondent must pay the applicant
compensation equivalent to five months’ of his remuneration
calculated at the
rate he was earning in December 2012 within 15 days
of the date of this judgement.
65.4
No order is made as to costs.
R
LAGRANGE, J
Judge
of the Labour Court of South Africa
APPEARANCES
For
the Applicant: In person
For
the First Respondent: J P Swanepoel instructed by Verster-Roos Inc.
[1]
Although Prof Pienaar had left the university by the time he
testified in the arbitration, I have used his erstwhile professorial
title to distinguish him from the applicant.
[2]
(2008) 29 ILJ 2461 (CC) at 2482-3,paras [65] – [66].
[3]
(2007) 28 ILJ 1042 (LAC)
[4]
At 1051, para [21].
[5]
(2014) 35 ILJ 954 (LAC)
[6]
At 961, para [21].
[7]
(2013) 34
ILJ
2795
(SCA) at 2801, para [11]
[8]
At 2802, para [12].(emphasis added)