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[2016] ZALCJHB 75
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Rustenburg Platinum Mine v SAEWA obo Bester and Others (JR130/14) [2016] ZALCJHB 75 (26 January 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no JR 130/14
In the matter between
RUSTENBURG PLATINUM
MINE
Applicant
And
SAEWA obo MEYER
BESTER
First
Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION AND
ARBITRATION
Second
Respondent
KOBUS ERASMUS
N.O.
Third
Respondent
Heard: 3 December 2015
Delivered: 26 January 2016; edited
and order corrected 26 January 2016.
JUDGMENT
VAN NIEKERK J
Introduction
[1]
This is an application to review and set aside an arbitration award
issued by the third respondent (‘the commissioner’).
In his award, the commissioner found that Mr Bester (on whose behalf
the first respondent acts) was unfairly dismissed by the applicant,
and reinstated him with retrospective effect. Bester was dismissed
after being found guilty on charges of insubordination and making
racial remarks. The essence of this case concerns a reference by
Bester to a co-worker as a ‘swartman’ and whether
it can
be said that in making the remark, Bester breached a workplace rule
that prohibits abusive and derogatory language and in
particular,
racist remarks.
Factual
background
[2]
The relevant factual background is apparent from the commissioner’s
award. For present purposes, it is sufficient to record
that Bester
was employed by the applicant as a senior training officer. He was
suspended on 25 April 2013 and dismissed on 28 May
2013, a decision
that was upheld on 1 July 2013 after an appeal hearing.
[3]
The incident that gave rise to Bester’s dismissal occurred on
23 April 2013. As will appear from the discussion below,
there is a
dispute about precisely what occurred, but at the root of it was a
disagreement about parking arrangements. The applicant’s
chief
safety officer, Mr. Sedumedi, had gratuitously permitted Bester,
who was head of the training department, to park his
car in bays
ordinarily designated for employees engaged in the safety department.
At some point, Sedumedi permitted an employee
of a contractor, a Mr
Solly Thomelang, to park in an adjacent bay. Bester says that he
found it difficult to park his car, since
both vehicles were large.
He says that on a number of occasions, he asked Sedumedi to look into
the problem.
[4]
The applicant contends that on the morning of 26 April 2013, Bester
burst into Sedumedi’s office where a safety meeting
was
underway and in a loud and aggressive manner demanded that Sedumedi
‘verwyder daardie swart man se motor’, or words
to that
effect. The applicant took the view that Bester’s conduct and
the use of the word ‘swartman’ constituted
misconduct,
and charged Bester with insubordination (in that he interrupted the
meeting in the manner in which he did) and making
racial remarks.
Bester denied having stormed into the meeting and acting in an
aggressive manner. He also denied having demanded
that Sedumedi
remove the car, and in particular denied having used the word
‘swartman’ or referring to anyone in those
terms. On the
contrary, Bester accused Sedumedi of introducing race into the
encounter by accusing him of not wanting a black person
to park next
to him.
[5]
Bester was suspended pending a disciplinary hearing. At the hearing,
Bester was found guilty of both counts of misconduct and
dismissed.
After his dismissal and the refusal of an appeal, he referred a
dispute to the CCMA alleging, amongst other things,
that his
suspension and his dismissal were substantively and procedurally
unfair.
The
award under review
[6]
In his award, the commissioner summarised the evidence and then
proceeded, as commissioners customarily do, to analyse that
evidence.
For present purposes, it is sufficient to record that the
commissioner concluded that Bester’s suspension was
procedurally unfair (because the applicant had not followed the
relevant procedure), that his dismissal was procedurally fair, that
there was no apprehension of bias on the part of the chair of the
disciplinary hearing, and that the appeal process was fair.
[7]
In relation to Bester’s contention that his dismissal was
substantively unfair, the commissioner concluded that the applicant
had failed to prove on a balance of probabilities that Bester had
contravened any workplace rule and that in any event, dismissal
was
not an appropriate sanction. The commissioner’s reasoning is
apparent from the terms of the award. In relation to the
charge of
insubordination, he concludes as follows:
26.3
I carefully considered all the evidence presented to me but failed to
find any evidence that prove
or even suggest that Mr Bester refused
to accept the authority of his employer or that he wanted to defy the
employer’s authority.
Even if he walked into a safety meeting
which was in progress (which was denied) that in itself can surely
not be classified as
defying the authority of the employer. If the
person(s) in the meeting were the seniors of Mr Bester to which he
reported, one
might still have been able to say that he could have
disrespected them or have defied their authority by storming into a
meeting
and shouting at his seniors. However none of the persons in
the room (at the time of the incident) had any authority over Mr
Bester
and his actions could therefore clearly not have defied the
employer’s authority. The respondent’s witness (van der
Westhuizen) even admitted that the tone used by Bester was his normal
tone of voice. I also find it highly improbable that the
safety
meeting was formally in progress at the time that the applicant
entered. Why would the applicant have concocted such a detailed
vision of what Sedumedi and Van der Westhuizen were discussing
and how would he have known all the details of the route
(which
was factually correct) if this was never discussed in his presence?
[8]
In relation to the charge of making racial remarks, the commissioner
reached the following conclusions:
26.4
The next charge is that of racial remarks which apparently relates to
the fact that Mr Bester had used
the words ‘swart man’
while pointing to the complainant. The respondent (in their closing
arguments) wanted to blur
the exact nature of the exchange by
referring to transgressions of a racial nature and to racial conduct
in the workplace. That
was with respect not what the applicant was
charged with. No evidence was however ever presented that the
applicant during the
incident referred to Mr Sedumedi as a black man
while pointing to him. The applicant denied using the term ‘swart
man’
at all and said that it was in fact Sedumedi who had used
these words. All the respondent’s witnesses (who were present
at
the time of the alleged incident) however testified that the
applicant had indeed used the words ‘swart man’ when he
referred to a person parking next to him. It was common cause that no
other words that might have had a racial connotation were
used. The
question to answer is therefore firstly whether the applicant had
used these words and if so, whether the words used
constituted a
racial remark?
[9]
Having posed the issue in these terms, the commissioner came to the
following conclusions:
26.5
I have no doubt that the applicant had indeed pointed his finger at
Sedumedi while discussing the parking
issue with him. The reason why
I say this is because Mr Bester has the habit (demonstrated during
the arbitration) of using his
hands and specifically pointing his
finger to the person that he is talking to. Although the respondent’s
witnesses did not
have exactly the same recollection of the words
allegedly sent by Bester, they all clearly remembered the sequence of
events and
that he used the word ‘swart man’ to refer to
the person parking next to him. The applicant himself admitted that
these
witnesses had no reason to lie or falsely implicate him. It was
interestingly also put to Salome Moeng during cross-examination
by Mr
Engelbrecht Mr ‘Bester had said to Ben to please (asseblief)
make a plan with the black (swart) man who box next to
him’.
She responded to the statement by saying that he did not say
‘asseblief’.
26.6
Both the applicant as well as the person referred to (Mr Solly
Thomelang) further indicated that they
did not know one another prior
to the incident on 24 April 2013. It would therefore in my opinion
have been highly probable that
the applicant might have used the term
‘swart man’ to identify the person who parked next to him
as he by that time
did not know his name. I find it less probable
that Sedumedi (who was in my opinion and extremely poor and very
evasive witness)
would without being triggered by something that was
said to him, accuse the applicant of not wanting to stop next to a
‘swart
man’. No other derogatory words or phrases were
used by the applicant (according to the witnesses). I really do not
see how
such a phrase (referring to a physical attribute in order to
identify certain person) could be classified as a racial remark. It
would be similar to the situation where someone comes into the CCMA
offices not knowing my name and then asking for me by stating
the
‘wit man’ who for instance parked next to the entrance
gate. I will not take any offence to this even if the person
who
utters these words is talking in a loud voice in front of all CCMA
users.
[10]
Having decided that the applicant in effect had not contravened a
workplace rule relating either to insubordination and express
all
racial remarks, the commissioner found it necessary to consider
whether dismissal was the appropriate sanction under the
circumstances.
He did so in the following terms:
27.2
Even if I erred (which I strongly deny) and should have found that he
did contravene either one or
both of the same rules against
insubordination and making racial remarks, the sanction of dismissal
in my opinion still remains
inappropriate.
27.3
The applicant had a clean disciplinary record without any previous
warnings for similar misconduct.
He was however previously counselled
for showing disrespect towards a senior but this did not indicate
that he was found guilty
of any misconduct and was warned not to
repeat such behaviour. The Behavioural Procedure agreement suggests a
final written warning
for a first offence of insubordination except
if exceptional circumstances are shown, which were not.
27.4
The respondent’s main witness, Sedumedi, although making a lot
of noise about how he experienced
what was said and done by Bester,
indicated in his evidence that if Bester afterwards apologised, they
could have sorted it out
between them. Although he indicated that it
would not have been an easy task to continue working with Bester, he
was not convinced
that the trust relationship was completely gone. No
other evidence was presented that proved that such a trust
relationship at
indeed been destroyed. The offences in the
Behavioural Procedure relating to racial issues referred to racial
abuse or harassment,
which was clearly not applicable here.
27.5
As such I find the dismissal was clearly inappropriate.
[11]
As I have indicated above, the commissioner went on to reinstate the
first respondent in the applicant’s employ with
retrospective
effect.
Grounds
for review
[12]
The applicant’s grounds for review are grouped under three
headings, but there is in essence a single ground for review.
The
headings relate to Bester’s suspension, the events of 24 April
2013 and the appropriateness of the sanction of dismissal.
For
reasons that will become apparent, I intend to deal in any detail
only with the second and third of these heads, and then only
with the
charge of making remarks of a racial nature. Indeed, this was the
focus of the submissions made by the parties’
representatives
during the course of argument.
[13]
The applicant contends that in coming to the conclusion that he did,
the commissioner failed to have regard to the evidence
before him and
failed in particular to appreciate the context in which the remark
that was the subject of disciplinary action against
the first
respondent had been made and in so doing, he failed to deal with the
substantial merits of the dispute. Further, the
applicant contends
that the commissioner failed to appreciate the serious nature of the
charges levelled against the first respondent.
The applicant submits
that the evidence before the commissioner clearly established that
the applicant adopted a zero-tolerance
approach to the use of abusive
and derogatory language in the workplace and that a continued
employment relationship was neither
possible nor appropriate.
Applicable
legal principles
[14]
This court is entitled to interfere with an award made by a
commissioner if and only if the commissioner misconceived the nature
of the enquiry (and thus denied the parties a fair hearing) or
committed a reviewable irregularity which had the consequence of
an
unreasonable result. The applicant contends for the latter, on the
basis reflected above. However, the failure by an arbitrator
to
attach particular weight to evidence or attachment of weight to the
relevant evidence and the like is not in itself a basis
for review;
the resultant decision must fall outside of a band of decisions to
which reasonable decision-makers could come on the
same material (see
Herholdt v Nedbank Ltd
[2013] 11 BLLR 1074
(SCA)).
[15]
The Labour Appeal Court recently affirmed that while the failure of
an arbitrator to apply his or her mind to issues which
are material
to the determination of a case will usually be held to be an
irregularity, before the irregularity will result in
the setting
aside of the award, it must in addition reveal a misconception of the
true enquiry or result in an unreasonable outcome
(see
Head
of Dept. of Education v Mofokeng
[2015]
1 BLLR 50
(LAC), at paragraph 30). In other words, whether a decision
is unreasonable in its result ultimately requires this court to
consider
whether apart from the flawed reasons of or any irregularity
by the arbitrator, the result could still be reasonably reached in
the light of the issues and the evidence.
Evaluation
[16]
It should be appreciated at the outset that in relation to the charge
of making remarks of a racial nature the commissioner
was faced with
a material dispute of fact. Bester’s evidence was to deny
ever having uttered the words ‘swart
man’. His
version was that on the morning of 24 April 2013, he experienced
difficulty parking his car on account of
the fact that both he and
Thomelang had relatively large vehicles to be parked in the bays
allocated to them. He decided to speak
to Sedumedi about the issue.
He stopped at the door to Sedumedi’s office. He denied that any
meeting was in progress and
testified that Van der Westhuizen and
Sedumedi were engaged in a discussion about jogging routes. His
evidence was that he told
Sedumedi that he would like to talk to him
about the parking problem. Sedumedi accused him of not wanting to
park next to a black
person (“jy wil nie langs ‘n swart
man stop nie, dit is jou probleem’). Bester testified that he
told Sedumedi
not to turn the issue into a racial one, and that he
would pursue the issue with a higher level of management. Bester
denied Sedumedi’s
version i.e. that he (Bester) had stormed
into his office during the morning meeting without apology or
greeting and disrupted
the meeting. Bester’s response was “that
is the biggest lie there was ever told.’ Similarly, when
Sedumedi’s
version that Bester had shouted at him and pointed
his finger was put to Bester, Bester responded by suggesting that
Sedumedi ‘is
sucking this out of his thumb that I had - that
this incident has ever took place (sic).’ Bester specifically
denied having
made any reference to a ‘swart man’.
[17]
This evidence stands in stark contrast to that led by all of the
applicant’s witnesses who were present at the meeting.
Van der
Westhuizen’s evidence was that Bester told Sedumedi ‘hy
die swartman se kar uit die parkering moet uithaal’.
Van der
Westhuizen also disputed Bester’s version that he (Van der
Westhuizen) and Sedumedi were in a discussion about jogging
routes
when Bester entered the office. He further denied that Sedumedi had
said to Bester that he did not want to park next to
a black man. Van
der Westhuizen testified that Bester’s conduct was aggressive
and unacceptable. This version is entirely
consistent with the
evidence given by Sedumedi, who testified that Bester had ‘stormed
open’ the door, pointed a finger
at him and demanded that he
remove ‘that swartman’s car’ from next to his
(Bester’s) car. Thomelang’s
evidence was that he arrived
at the office when Bester was inside and that he heard an argument
with Sedumedi ‘with loud
voice’. Moeng told him that they
were talking about him. He listened to the conversation and heard
Bester saying to Sedumedi
‘.. ek sê nou vir jou haal
daardie swartman se kar uit my parkering uit…’.
[18]
The commissioner’s analysis amounts to this - he accepts
Bester’s version that there was no meeting underway at
the time
he entered the office, this despite the evidence of all of the other
witnesses present who confirmed that the meeting
had commenced, and
Van der Westhuizen’s denial that he had been engaged in
conversation with Sedumedi about jogging routes.
The commissioner
then accepted that Bester had pointed his finger at Sedumedi, not
because of any evaluation of the evidence but
on account of his
personal observation of Bester’s mannerisms while giving
evidence. He also appears to accept that the applicant’s
witnesses had a clear recall of the sequence of events and in
particular that Bester had used the word ‘swart man’
to
refer to the person parking next to him. Because Thomelang did not
know Bester prior to the incident, it was ‘highly probable’
that Bester might have used the term ‘swart man’ to
identify him.
[19]
The basis of commissioner’s factual findings leave one with a
sense of bewilderment. In essence, he accepts that
the meeting
had in fact commenced only on account of the detailed nature of
Bester’s account of a conversation that he says
was being
conducted between Van der Westhuizen and Sedumedi, a conversation
they both deny ever took place. The detail of Bester’s
version
in these circumstances is entirely irrelevant – there was no
cogent reason for the commissioner to reject the evidence
of both
Sedumedi and Van der Westhuizen in this respect – their
evidence (that the meeting was underway when Bester stormed
through
the door) was consistent, and consistent with the evidence of the
other employees present at the meeting. The next factual
finding,
that Bester had pointed his finger at Sedumedi, is made without any
reference to the evidence. The commissioner’s
finding is
sustained by no more than the commissioner’s personal
observation of Bester’s demeanour. The finding that
Bester
uttered the words ‘swart man’ is sustained by the
evidence and despite Bester’s denial, clearly correct.
[20]
I mention these issues because it seems to me that the commissioner’s
failure properly to resolve the material dispute
of fact before him
resulted in factual findings that are entirely arbitrary. Be that as
it may, the essence of the present enquiry
relates to the
commissioner’s finding that Bester had not contravened any
workplace rule because in his view, the word ‘swartman’
was used by Bester in a purely descriptive sense and could thus not
be classified as a racial remark.
[21]
In
Modikwa Mining Personnel Services
(2013) 34 ILJ 373 (LC), Gabie AJ reviewed a number of decisions by
this court in which incidents of racism in the workplace were
at
issue (see, for example,
Crown Chickens
(Pty) Ltd t/a Rocklands Poultry v Kapp & others
(2002) 23 ILJ 863 (LAC),
Lebowa Platinum
Mines Ltd v Hill
(1998) 19 ILJ 1112
(LAC)). At the core of these decisions is the decisive break that the
Constitution represent from a past in
which racism was
institutionalised and legitimised (see
S
v Makwanyane & another
[1995] ZACC 3
;
1995 (3) SA
391
(CC)) and that racism in the workplace is not to be tolerated. In
the course of her judgment, Gaibie AJ found that an utterance
by an
employee to the effect that ‘we need to get rid of the whites’
was clearly and unequivocally racist in nature.
To the extent
that the employee dismissed for making this utterance had contended
that the words ought necessary to be viewed in
the context in which
they were used, Gaibie AJ said the following, at paragraph 29 of her
judgment:
I
disagree with this proposition. Words have their own meaning and do
not necessarily require a context within which to acquire
meaning.
Depending on the words used, there may however be circumstances in
which words may acquire a different meaning. I do not
believe that
the racist slur uttered by Ramepadi requires a context for the
purposes of interpretation. Their plain meaning indicates
racism
.
To
the extent that context may have been relevant, after an evaluation
of the context in which the words has been used, Gaibie AJ
concluded
that context simply served to aggravate the situation as the employee
knew that his words constituted a racial slur and
that white persons
who heard it would have been offended by them.
[22]
What the
Modikwa Mining
judgment (and many others) demonstrate is that despite the formal
dismantling of institutional apartheid, issues of race and racism
remain prevalent in South African workplaces. The use of racial
identifiers plays an obvious role in the perpetuation of
negative
stereotypes. The concept of race, as a social construct, continues to
be imbued with ideological baggage and can serve
the purposes of
subjugation, where particular race groups continue to be viewed as
‘other’. As Savage AJA recently
observed in
Campbell
Scientific Africa (Pty) Ltd v Simmers & others
(CA
14/2014, 23 October 2015), in the context of a case concerning
remarks of a sexual nature made to a woman employee, the use
of
derogatory and demeaning remarks are concerned with power relations
and serve to create a work environment where the right to
dignity of
employees is impaired, and barriers to substantive equality
reinforced.
[23]
In the present instance, there is no conceivable reason why race
might justifiably have served as an identifier. To the extent
that
context is relevant, it should be recalled that the Bester stormed
into a meeting that was in progress, that he was aggressive
and
belligerent, that he pointed his finger at Sedumedi and in a loud
voice demanded that Sedumedi remove the ‘swartman’s’
car from next to his. Those present in the meeting were offended by
Bester’s conduct. Bester was not, as the commissioner
suggested, benignly ‘referring to a physical attribute in order
to identify a certain person’. Bester’s reference
to
Thomelang as a ‘swartman’ was derogatory and racist.
[24]
Insofar as the commissioner considered that dismissal was not an
appropriate penalty for the first respondent’s misconduct,
it
was not in dispute that shortly before the incident that gave rise to
these proceedings, on 16 April 2013, the general manager
of the
applicant addressed a memorandum to all employees. The memorandum
reads as follows:
Colleagues
It
has come to management’s attention that some employees use
abusive language with fellow employees. It was also raised with
management that some senior management are swearing and shouting at
their subordinates.
This
practice is not in accordance with our values and does not
demonstrate care and respect towards each other and will therefore
not be tolerated at Thembelani Mine.
Disciplinary
action will be taken against anyone who uses abusive language towards
another person on Thembelani Mine. Let us refrain
from using
derogatory language against each other and strive to work together
harmoniously as One Team.
[25]
The terms of this memorandum make it clear that abusive and
derogatory language would not be tolerated and constitute a clear
warning of disciplinary action in the event of any breach of the
applicant’s values. The undisputed evidence before the
commissioner was that the applicant adopted a zero tolerance approach
to the use of derogatory and abusive language. Indeed, under
cross-examination, Bester conceded that the use of derogatory
language would justify dismissal.
[26]
In my view, on a proper assessment of the evidence that served before
the commissioner, he reached a decision that a reasonable
decision-maker would not have reached. Even if the commissioner’s
flawed reasoning were to be disregarded, the result cannot
be
sustained on the basis that it nonetheless represents a reasonable
result. Bester committed an act of serious misconduct
that
warranted his dismissal. On that ground alone, the award stands to be
reviewed and set aside. In the circumstances,
it is not
necessary for me to consider the further grounds for review proffered
by the applicant.
[27]
Finally, insofar as costs are concerned, this court has a broad
discretion in terms of s162 to make orders for costs according
to the
requirements of the law and fairness. In my view, there is no
reason why costs ought not to follow the result.
I
make the following order:
1.
The arbitration award issued by the
third respondent on 19 December 2013 under case number NWKD 1682-13
is reviewed and set aside.
2.
The award is substituted by the following:
‘
The
applicant’s dismissal was substantively and procedurally fair.’
3.
The first respondent is ordered to pay the
costs of the application.
ANDRÈ
VAN NIEKERK
JUDGE OF THE LABOUR COURT
REPRESENTATION
For
the applicant: Adv F Boda, instructed by Cliff Dekker Hofmeyr Inc.
For
the first respondent: Adv AP Landman, instructed by Ronelda van
Staden Attorneys