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[2015] ZALCCT 72
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NEHAWU obo Lucwaba v Van Staden and Others (C898/13) [2015] ZALCCT 72 (4 December 2015)
THE LABOUR COURT OF SOUTH AFRICA,
CAPE TOWN
JUDGMENT
Not
Reportable
Case Number: C898/13
In the matter between:
NEHAWU obo
PATRICK LUCWABA
Applicant
and
PIET VAN
STADEN
First
Respondent
NATIONAL HEALTH
LABORATORY SERVICES Second
Respondent
CCMA Third
Respondent
Date heard: 4 June
2015
Delivered:
4 December 2015
JUDGMENT
RABKIN-NAICKER J
[1] This is
an opposed application to review and set aside an arbitration award
under case number WECT11038-13. The first respondent
(the
Commissioner) found that the dismissal of Patrick Lucwaba (Lucwaba)
was procedurally and substantively fair.
[2] Lucwaba
had been employed by the second respondent (NHLS) for some thirty
years at the time of his dismissal, having moved up
the ranks to
become an Executive Manager with a salary of R93 700.00 a month.
The disciplinary charges against him are recorded
in the award as
follows:
“
Charge
One
5.
It was alleged that he had engaged in a situation where he allowed a
junior member of his staff, one Ms Viwe Vilakazi, to come
around his
desk during working hours, and was found with her skirt drawn up to
her thighs. It was contended this was improper conduct
on the part of
Applicant.
6.
It was also alleged that Applicant had affairs with two junior staff
members. One was employed as a medical technologist in East
London
and the other a finance clerk at the Greenpoint Complex. It was also
alleged that Applicant tried to engage another junior
colleague, at
the Nelson Mandela Tertiary Laboratory.
7.
It was alleged that in his dealings with the aforementioned ladies
Applicant had used the words ‘thanks my love’,
‘it’s
ok darling’, ‘hello sweetheart’, ‘sure honey
sorry not for showing that’, ‘I
miss you and think about
you the whole time’ and ‘I love you unstoppable’.
8.
It was also alleged that Applicant had used similar words with
females who were not employed with Respondent. Some five females
were
mentioned. One of those is employed by the IDC.
Charge
Two
9.
It was alleged that Applicant made or presented a false document for
personal interest. It was alleged that in April 2013 he
wrote and
circulated an email with the subject “Public Interest”
wherein he spread negative rumours about Respondent,
its management
and its Board. It was alleged that Applicant had spread the rumours
internally and externally and he used Respondent’s
computer and
network system and which he had connected to his personal email
address. In so doing he undermined the value system
and Road Map
process and he brought Respondent’s name in disrepute.
10.
It was also alleged that applicant had disclosed and distorted
confidential information about Respondent’s values to internal
and external shareholders. This was a breach of his contract of
employment.”
[3] In regard
to the email correspondence with junior employees, the record reveals
that Lucwaba explained to the Commissioner that:
“
So
the junior staff that I have been exchanging emails with, some are
friends, some are family friends, some are close relatives
in a
sense. We African people extend families particularly around the clan
name and stuff like that. Now my upbringing or my background
is such
that I am very submissive and humble in addressing people, be they
males or females. I do not address them with their names
if I can
help it and they are comfortable with it. Rather than addressing them
with their names I would use cuddly names that I
know are acceptable
in our society.”
[4] Under
cross-examination regarding certain photos taken of one of the women
contined in the emails , Lucwaba confirmed that she
was one of the
suppliers to the NHLS. He further conceded that the photos were
taken with the camera he had been provided
with by his employer. The
said photos are contained in the record before the Commissioner and
were taken before 9 in the morning
in December 2012. Lucaba conceded
he took the pictures but stated that he did not know where they were
taken. Other photographs
contained in the record which were taken
with his camera include a photo of one of the women with whom he
emailed lying on a bed.
[5] The
Commissioner found that it was wholly inappropriate for a senior
executive to have dealt with junior employees in the terms
that he
did in the emails.
[6] In
respect of the alleged incident with Ms Vilakazi, the Commissioner
heard evidence of three staff members including a Mr Abraham
who
testified that when he popped his head into Mr Vilakazi’s
office after 4.30 in the afternoon it appeared as though Ms
Vilakazi
was sitting on his lap. She was adjusting her dress from mid-thigh to
her knees. This evidence was disputed by Lucwaba.
His defence
included that emails were sent by her to him on that day at the time
they were supposedly together. He denied Mr Abrahams
who he said
always knocked loudly on his door and never came in unless invited,
had stuck his head into the office as alleged.
[7] The
Commissioner could not find any basis to conclude that the evidence
about Ms Vilakazi was concocted by the employer and
its witnesses. He
was not persuaded that the exchange of emails between Lucwaba and
Vilakazi at the material time assisted Lucwaba’s
case. He
recorded that “it is trite that emails are not necessarily
office bound. One can sit next to a colleague and they
will have no
difficulty in exchanging emails.”
[8] In
respect of Charge 2, Lucwaba denied he had ever transmitted the
alleged email disparaging the leadership. This material
was
presented at arbitration on a document that also contains an email
from a Maria Henson which read as follows:
“
Dear
Patrick. The NHLS ROAD MAP PROCESS was made on your PC. Office
documents track this. NHLS will find out. Make a copy of everything
you have that is important on CD. Put in your car safely. Not a
company car. They will take that. When you are suspended youll
have
it safe. Find out how to send it to WikiLeaks you have support but
act wizely. You will not hear from me again. Maria”
[9] At 22h36 on 15 April
2013, the night before the meeting of the portfolio committee in
Parliament, Lucwaba had forwarded the
email from Henson to his
private email address. The copy of the facsimile contained in the
bundle of documents reflects “Attachments
NHLS ROAD MAP
PROCESS doc”
[10] The ROAD MAP PROCESS
DOCUMENT READ AS FOLLOWS:
“
NHLS
ROAD MAP PROCESS
THE
HIDDEN TRUTH – HARDCORE INTENTION
“
Hereunder
is a brief executive summary of what the most popular and eagerly
awaited restructuring process is going to do to the
country’s
diagnostic laboratory services. The detailed rhetoric you can find in
the documents that have been compiled over
years by the team, but all
of that cover up conceals the real implications explained below, to
complete the picture.
Laboratories-phased
in closures: no more new labs will be built ever by NHLS because the
current number of labs is way too high
and should therefore be
reduced significantly. More than half of the existing sites will be
closed down, as part of the first phase.
This will ensure that every
province has, but a significantly low number of testing labs. The
following phase will intensify the
closure, resulting in every
province remaining with at least a laboratory. The second last of
these phases will reduce to one,
the number of laboratories the
country will have. The last and ultimately phase goal of this
restructuring process will convert
the one laboratory into being a
triage point to courier specimens to India.
Services-Fleets
of courier companies are being established as of now that will
collect ad deliver samples from clinics and hospitals
all over the
country. These will include vehicles, helicopters and aero planes.
Huge numbers of clerks and community workers will
be contracted to
record and package specimens for testing. Contracting of large
numbers of employees is being tested currently
and works it well. IT
will be used to transmit results back to clinics within reasonable
turnaround times. The few labs will operate
with a high level of
automation and will deliver high throughput running 24/7 non stop.
Once all labs are shut down, specimens
will be sent to India by
airlines that are being budgeted for to purchase.
Personnel-
the present numbers of staff in all categories exceed what is
required by the current workloads. When labs are reduced,
massive
retrenchments will be unavoidable and fair recruitment processes will
be embark upon for the remaining labs. NHLS does
not have money right
now, treasury will be approached to fund retrenchment packages.
Current trainees (consultants, technologists,
technician, scientists
and lab assistant) will given a very short stint of experience in a
short term contractual employment which
may be extended, a few times
and ultimately terminated to go find a job in the private sector, as
nhls does not train for nhls
but for the rest of the industry and the
world at large.
Teaching
and training of professionals- NHLS will no longer recruiting future
professionals. The private sector will carry the training
burden to
cater for their services.
This
is the cheapest way to deliver services of laboratory to South
African people.
A
program like this, just on the eve of 2014 general elections, is a
snub and insult to the country’s hard earned democracy
and in
particular, to the African National Congress.”
[11] The record
reveals that Lucwaba testified that he regarded the email from Henson
as spam and did not consider the statement
by her i.e. that he had
created the Road Map document, as damaging to him. The following
interactions recorded in the transcribed
record are noteworthy.
“
MR
LUCWABA: Commissioner as I did say earlier you receive spam email of
this or the other thing, you have won a million rand and
you just
ignore those things. So you park it and see what is going to happen
and if nobody shows up there is no identity you will
ultimately
delete that. I have considered that to be that as well even though it
is a putting allegations it…(intervenes)
COMMISSIONER;
You regarded it as spam?
MR
LUCWABA: I regarded it as spam and I was hoping somebody is going to
show up and then I would then talk to this person.
COMMISSIONER:
All right ………
MR
HLATSWAYO: Okay, did you do anything when you received that email
other than just sending it to you private email?
MR
LUCWABA: What, I did not do anything.
MR
LUCWABA: No
MR
HLATSWAYO: Why?
MR
LUCWABA: I delete spam.
MR
HLATSWAYO: But in this case you never deleted, you sent to your
private email why?
MR
LUCWABA: I am saying you have spam that says (inaudible) you know it
is spam but you never know so you park it for some time
after which
you then dispose of it.
MR
HLATSWAYO: Why was it important for you to save it?
MR
LUCWABA: Probably to go back and read it later on, but I never had
the chance to read this because you came and you grabbed my
computer.”
[12] The
Commissioner records the rest of Applicant’s evidence in
respect of charge 2 thus:
“
42.Applicant
recorded that he was part of a team that visited Parliament on 16
April 2013. The purpose was to make a presentation
to the portfolio
committee. The CEO did the presentation but other members of the team
dealt with questions as best they could.
43.
Applicant noted that he was more of a representative of the Regional
Management whose knowledge lay in operations. When questions
were
raised on operations, Applicant dealt with them. After the CEO
concluded his presentation, Applicant pointed out a number
of gaps in
it. He relayed this to the committee. Applicant gave additional
details and he stated that he thought that he was supporting
the CEO.
He later understood that the CEO did not want the information to be
disclosed. Applicant contended that this led to his
dismissal.
44.
Applicant stated that the chairperson of the enquiry linked his
submissions in the email letter to what he had stated in Parliament.
She assumed, on that basis, that it was Applicant who had drafted and
transmitted the letter. He contended that Respondent has
led no
evidence to prove that the email came from the Applicant’s
laptop despite it being in Respondent’s possession
since 19
April 2013.”
[13] In
respect of charge 2 the Commissioner found that the probabilities
were heavily in favour of the employer. He states
as follows:
“
It
simply makes no sense that a document that, on his version is sent to
him and which details plans by the Respondent, can be seen
as spam. I
am satisfied that Respondent has proved this allegation against
Applicant. The conduct displayed by Applicant is inconsistent
with
one who had received an email rather than one who has sent one. “
[14] In
finding that the employment relationship would not be able to
continue, the Commissioner records that he fully associates
himself
with the Chairperson of the disciplinary hearing in paragraphs 7.1 to
7.3 in the disciplinary outcome report. These read:
7.1
In light of my finding in regard to charge 2, I find that the
relationship of trust between the Employer and the Employee has
been
so adversely affected that the employment relationship can be said to
have broken down irretrievably.
7.2
The Employee conducted himself in a manner which indicates that he
considered the employer to be an adversary. He embarked on
a course
of action with no regard for the reputation and interests of the
Employer and I am of the opinion that such conduct cannot
be
condoned. Accordingly, it is my decision that the employee be
dismissed.
7.3
Furthermore, I am convinced of the appropriateness of the sanction of
dismissal in the circumstances as the Employee’s
relationships
with junior female staff members is indicative of his disregard of
his duty to act in the Employer’s best interest.”
[15] The
attack on the award on behalf of the applicant is that the
Commissioner did not deal properly with the material disputes
of fact
before him and engage squarely with applicant’s version –
i.e. he did not have regard to facts and circumstances
tending to
support the applicant’s version. This, it was argued, was
apparent in respect to the Vilakazi incident and the
Road Map
document. A most important consideration that the Commissioner ought
to have taken into account according to Ms Harvey,
was the timing of
the charges i.e. that Lucwaba was suspended three days after he made
his input in Parliament and that Abrahams
complaint occurred on the
very eve of the Portfolio Committee meeting.
[16]
It is submitted by Ms Harvey that there was no evidence that the Road
Map document was circulated to “internal
and external
stakeholders”. I do not understand Lucwaba’s evidence at
arbitration to have been that the document was
never circulated but
rather that he did not author or circulate it. This stance is
apparent in the following testimony when it
was put to him that the
document bore a striking similarity to the issues he had raised in
Parliament:
“
You
are not implying that I am the one and only person in the whole NHLS
community who has this view. Many within the NHLS share
the view
about retrenchments and what not, about the lab closures, any one of
those could have written. I am in the EXCO; EXCO
is put in the middle
when it comes to the subject of ROAD MAP process. Some people within
the EXCO are not for the ROAD MAP process
because of exactly these
implications. Why do you attach it to me, what proof do you have that
it is me, the ROAD MAP process document,
it is an NLHS document and
just about every executive in every senior manager has got the ROAD
MAP process document and everything?”
[17]
The Commissioner’s finding in respect of Charge Two i.e.
circulating negative information about the Roadmap to internal
and
external stakeholders, is less than elegant. However in deciding this
matter I am mindful of the dictum of Zondo JP as he then
was in
Fidelity Cash Management Service v
Commission for Conciliation, Mediation & Arbitration & others
[1]
when
he said:
“
In
many cases the reasons which the commissioner gives for his decision,
finding or award will play a role in the subsequent assessment
of
whether or not such decision or finding is one that a reasonable
decision maker could or could not reach. However, other reasons
upon
which the commissioner did not rely to support his or her decision or
finding but which can render the decision reasonable
or unreasonable
can be taken into account. This would clearly be the case where the
commissioner gives reasons A, B and C in his
or her award but, when
one looks at the evidence and other material that was legitimately
before him or her, one finds that there
were reasons D, E and F upon
which he did not rely but could have relied which are enough to
sustain the decision.
[18] In my
judgment the following reasons further sustain the Commissioners
decision that the dismissal of Lucwaba was fair:
18.1
The timing of the receipt of the so-called ‘spam’ by
Lucwaba late on the night
before the portfolio committee meeting is
significant. He did not deny the timing of the Henson message or that
he received it
and sent it to his personal email address. He then
proceeded to attend at the meeting in Parliament on the next morning
where he
undermined the CEO of NHLS in the presentation to
Parliament. That he did more than ‘fill in the gaps’ of
the CEO’s
presentation is evident from the letter he sent to
the Chairperson of the Portfolio Committee following his suspension
in relation
to the Vilakazi allegations. In this he wrote that: “It
is undoubted that all of this is the direct result of my standing
in
the portfolio committee on Tuesday regarding the restructuring
process of NHLS and the implementation thereof.”
18.2
Although the Commissioner made reference to the findings of the
Disciplinary Chairperson
in respect of the improper conduct of
Lucwaba in sending emails to junior female staff members, and
supported same, an additional
reason to sustain the decision in
this matter is well-expressed in the Chairperson’s finding
that: “I find that the
Employee was inappropriate and grossly
negligent in exposing the Employer to the very real possibility of
grievances and sexual
harassment claims in relation to his
communications with junior employees and external parties.”
[19] While it
is true that the timing of the Vilakazi allegations may well have
been prompted by Lucwaba’s conduct at the
Portfolio Committee,
this fact cannot render the findings on all the charges reviewable.
It is not necessary for me to deal with
the question of whether the
Commissioner forensically examined the disputed facts in the Vilakazi
incident to the requisite standard.
I am satisfied that in
respect of Lucwaba’s inappropriate emails to female
subordinates, as well as his conduct in
propagating negative
information about the Roadmap to stakeholders, the Arbitrator’s
decision should be sustained.
The outcome of the Award cannot be
considered one that a reasonable decision-maker could not make on all
the material before the
Commissioner. I see no reason why costs
should not follow the result in this matter.
[20]
In all the circumstances, I make the following order:
1.
The application is dismissed with costs.
_____________________
H. Rabkin-Naicker
Judge of the Labour Court of South Africa
Appearances:
Applicant: S. Harvey instructed
by Abrahams Kiewitz Attorneys
Respondent: M.W. Dlamini instructed by MNS Attorneys
[1]
(2008) 29 ILJ 964 (LAC) at paragraph 102