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[2016] ZALCPE 23
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Enviroserve Waste Management (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (P99/14) [2016] ZALCPE 23 (15 November 2016)
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not Reportable
Case no: P99/14
ENVIROSERVE
WASTE MANAGEMENT (PTY)
LTD
Applicant
And
THE
COMMISSION FOR CONCILIATION, MEDIATION
&
ARBITRATION
First Respondent
RAYMOND
JONATHAN N. O
Second Respondent
LEE
ANN
KRUGER
Third Respondent
Heard:
02 March 2016
Delivered:
15 November 2016
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
The applicant seeks an order reviewing, setting aside, and/or
correcting the arbitration award issued by the Second Respondent
(Commissioner) on 1 April 2014. In the award, it was found that the
dismissal of the Third Respondent, (Kruger) by the Applicant
was
substantively unfair, and that the sanction of dismissal ought to be
replaced with that of a Final Written Warning valid for
12 months
from the date of the dismissal. The Commissioner had also ordered the
Applicant to reinstate Kruger with back-pay in
the amount of R169
421.45.
Background:
[2]
Kruger was employed as a key Accounts Consultant having commenced her
employment on 1 November 1999. She was dismissed from
the Applicant’s
employ on 25 July 2013 following upon a disciplinary enquiry into
allegations of misconduct. The allegation
was that on 10 July 2013,
she had made herself guilty of gross insolence in that she had hurled
abusive language towards a line
manager, which conduct amounted to
gross insubordination in terms of the Applicant’s disciplinary
code of conduct.
[3]
An alleged unfair dismissal dispute having been referred to the CCMA,
it subsequently came before the Commissioner for arbitration.
At
those proceedings, Kruger contended that her conduct was not gross
for it to be met with a sanction of dismissal. She had also
challenged her dismissal on the basis that the Applicant had applied
its discipline inconsistently, in that similar conduct by
another
employee, Moses Jalmeni was not met with similar disciplinary
measures. The Commissioner’s findings in regards to
this issue
were to the effect that there was no basis for a conclusion to be
reached that the Applicant had acted inconsistently,
and it does not
require any further determination for the purposes of these review
proceedings.
The
arbitration proceedings:
[4]
The Commissioner had recorded that Kruger had conceded that she was
guilty of insolence in that she had used foul language during
her
interaction with the Regional Manager, Pienaar, but that such
language was used more as a ‘descriptive language’,
which
did not undermine Pienaar’s authority. The testimony of various
witnesses as summarised by the Commissioner is as follows;
4.1
Theodorus Pienaar was the Applicant’s Regional Manager for the
Eastern Cape. He had
worked with Kruger for 12 years as she was based
in the East London depot. Pienaar had received an e-mail from Lilly
Janse Van
Rensburg in which she complained about Kruger not assisting
with enquiries relating to the latter’s client. Pienaar sent an
e-mail to Kruger requesting that she should assist where required and
requested, and further informed her that she should ‘
get out
of her silo’
as she needed to be part of the team.
4.2
Prior to having an opportunity to read Kruger’s response,
Pienaar had received a call
call from her, and the conversation had
commenced with expletives such as;
‘
I am f….ng cross with you, what do you mean by
‘getting out of my silo’?’
she further
added that; ‘
You do not give a f….ng sh..t for us in
East London’.
As a parting shot, Kruger also said to
him ‘
F…k you’
and dropped the phone on him.
4.3
Pienaar’s evidence was further that given the robust nature of
the environment within
which the Applicant operated, employees
regularly used foul language, and that he had also on occasion used
such language,
albeit
not directed to any particular
individual. He however contended that the Kruger’s conduct and
abuse was directed at him;
that it had broken the trust relationship
with him since it was unacceptable; that Kruger had not shown any
remorse, and that such
conduct had taken place in the presence of
other employees. At the time he received the call from her, he was
having a lunch meeting
with another employee from the Applicant’s
head office.
4.4
Bianca Smith’s evidence was essentially that she sat opposite
Kruger in their office.
Kruger had made her aware that she was going
to call Pienaar after being upset about something. Smith had asked
Kruger to calm
down before calling Pienaar, but to no avail. Kruger
made a call to Pienaar and Smith did not hear the rest of their
conversation
as she had to attend to her own call from a client. All
she heard was that Kruger said something to the effect that; ‘
I
am f….ng cross with you’
, and ‘
You’
at the end of her conversation.
4.5
Kruger had proceeded to call Van Rensburg who was the book-keeper in
the Port Elizabeth
office. Smith overheard Kruger saying to Van
Rensburg; ‘
I am f…ng cross with you, you always got a
problem with East London staff’
. Van Rensburg had said
something in return, and Kruger ended the conversation by saying ‘
F…k
you’
to her. Kruger thereafter stood up from her chair,
threw her work issued mobile phone against the door, and informed
another employee,
Eloff, that she was ‘
sick of this place’
.
Kruger further said that she would return her mobile phone and laptop
the following day, and promptly left the workplace.
4.6
Lilly Van Rensburg’s testimony was to the effect that she had
sent the e-mail to Pienaar
which she had copied to Kruger wherein the
complaint was raised. Inasmuch as Kruger was entitled to be upset,
Van Rensburg’s
view was that she could have handled the
situation differently. She confirmed that when Kruger called her over
the phone, she had
uttered the words as described by Smith, and had
sent her an e-mail to inform her that she had no right to talk to her
in that
manner. She had also complained to Pienaar about Kruger’s
abusive language towards her.
4.7
Vanessa Bungay testified on behalf of Kruger. Her testimony was
essentially that having
worked with her for 5 years, she was used to
her use of inappropriate language at work. Her testimony did not add
much value to
the nature of Kruger’s conversation with Pienaar.
4.8
Moses Jalmeni also testified on behalf of Kruger. He confirmed having
been dismissed by
the Applicant. His testimony was mainly in regards
to Pienaar whom he contended was equally guilty of using
inappropriate language
when he was upset about something. At one
stage, there was a verbal altercation between the two which had
resulted in Pienaar telling
him to ‘
F…k off’
,
and Jalmeni had returned the favour with the same bomb. Pienaar had
nevertheless apologised to him at a later, and the matter
was sorted
between them, hence he did not lodge a grievance against him.
4.9
Kruger in her testimony expressed her embarrassment at the fact that
she swore a lot, but
however contended that Van Rensburg and Pienaar
were well aware of that. Having received Van Rensburg’s
complaint which was
copied to her by Pienaar, she had duly responded
but had felt the need to telephonically contact Pienaar in order to
find out what
the real problem was.
4.10
Upon calling Pienaar and enquiring from him about what the problem
was, an impression was created that she
was not willing to help her
colleagues at which she got upset and said; ‘
Ernst, you are
pissing me off now, why do you automatically believe Lily, I don’t
understand the reference, ‘get out
of your silo’, I
always helped where I can but cannot give a sh…t about what is
happening in East London. All you
f…ng care of is people in
Port Elizabeth and I am f…ng sick of it.
She had
ended the conversation by saying ‘
Thank you’
to
him
.
She thereafter put down the phone without affording
Pienaar an opportunity to respond. She subsequently called Van
Rensburg and
berated her for lying to Pienaar. She had conceded that
she was insolent towards Pienaar.
The award:
[5]
The Commissioner’s starting point was to accept that it was
common practice within the workplace to use foul language,
as long as
it was not directed at anyone in particular. This was despite the
fact that the use of such language was contrary to
the Applicant’s
disciplinary code. Central to the Commissioner’s enquiry was
whether Kruger’s use of abusive
language, included the
utterance; ‘
F…k you’,
and was directed to
Pienaar. This enquiry arose out of a dispute of fact pertaining to
whether Kruger had uttered those words or
had merely said ‘
Thank
you’
at the end of her conversation.
[6]
The Commissioner had concluded that the Applicant in this case had
failed to establish that Kruger had directed the utterances
towards
Pienaar. The basis of the Commissioner’s conclusion was that
Pienaar had little recollection of the telephonic conversation
despite his assertion that Kruger had indeed uttered the words; that
Kruger appeared to have had a ‘
monolog’
(Sic) and
that Pienaar had not participated in the conversation. The
Commissioner further pointed out that the Applicant had not
brought
witnesses to corroborate Pienaar’s version as he had indicated
that the words were said in front of other employees;
that Pienaar
had been evasive when questioned about the incident whilst Kruger had
been forthright, and had conceded from the onset
that she was
insolent towards Pienaar.
[7]
Equally so, the Commissioner had also made a finding that the
Applicant had failed to establish that Kruger’s conduct
was
gross based on the initial conclusions that it was acceptable within
the workplace to use foul language. The Commissioner concluded
that
it had not been established that any foul utterances were
specifically directed towards Pienaar.
[8]
The Commissioner in determining the appropriateness of sanction was
not convinced that a trust relationship had been broken
between
Kruger and the Applicant. This was despite Pienaar’s contention
that there was such a breakdown. The Commissioner
concluded that a
final written warning should be imposed in the light of the evidence
that; (a) Kruger had not been suspended prior
to the disciplinary
enquiry; (b) that no precautionary measures were put in place after
the incident; (c) that Pienaar had also
testified that it was
business as usual after the incident until Kruger’s dismissal;
(d) that Kruger had a clean disciplinary
record after 13 years of
service; and (e) that the Applicant’s own disciplinary code
provided for a Final written warning
for disrespect or impudence.
The
grounds for review:
[9]
In seeking to have the award reviewed and set aside, the Applicant’s
main contentions were that its outcome and in particular,
the relief
granted, was unreasonable; that the Commissioner’s findings
that the level of misconduct was not gross was unreasonable;
that the
Commissioner unreasonably concluded that the trust relationship had
not broken down irretrievably, and that this finding
was grossly
unreasonable and premised on an irrational and erroneous
understanding of the law and the facts relating to the issues
before
him.
[10]
In opposing the application, Kruger’s contentions were that;
the decision of the Commissioner was one which could reasonably
and
rationally have been arrived at in consideration of the totality of
the evidence before him; that without admitting that her
dismissal
was an appropriate sanction, it could not be said that a finding that
she ought to have been dismissed for the infraction
complained of was
the only appropriate sanction which could have been imposed; that the
Commissioner had correctly identified the
principles involved in the
determination of the dispute; correctly examined and considered all
the evidence before him relevant
to the issues, and that the award
cannot be found to be one that could not have been made on the
evidence before the Commissioner.
It was contended that there was no
basis upon which the court should review and set aside that award.
The
review test:
[11]
The review test flowing from
Sidumo
[1]
and other authorities can be said to be fairly trite. The question
the review court asks itself is whether the conclusion reached
by the
arbitrator was so unreasonable that no other arbitrator could have
come to the same conclusion. Thus to be unassailable,
the
Commissioner’s conclusions must fall within a range of
decisions that a reasonable decision maker would make in the light
of
the material before him or her.
[12]
In determining whether the decision of the Commissioner is
unreasonable, this Court must broadly evaluate the merits of the
dispute and consider whether, if the Commissioner’s reasoning
is found to be unreasonable, the result is, nevertheless, capable
of
justification for reasons other than those given by the commissioner.
The result will, however, be unreasonable if it is entirely
disconnected with the evidence, unsupported by any evidence and
involves speculation by the arbitrator
[2]
.
As it was reiterated by the Labour Appeal Court in in
Palluci
Home Depot (Pty) Ltd v Herskowitz and Others
[3]
;
“
Significantly,
as was held by the SCA in Herholdt and endorsed recently by this
Court in Head of the Department of Education v Jonas
Mohale Mofokeng
and Others, “for a defect in the conduct of the proceedings to
amount to a gross irregularity as contemplated
by s 145(2)(a)(ii) of
the LRA, the arbitrator must have misconceived the nature of the
enquiry or arrived at an unreasonable result”.
Thus, as
recognised in Mofokeng, it is not only the unreasonableness of the
outcome of an arbitrator's award which is subject to
scrutiny, the
arbitrator “must not misconceive the inquiry or undertake the
inquiry in a misconceived manner”, as this
would not lead to a
fair trial of the issues. In further approval of Herholdt, this Court
in Mofokeng stated that:
“
Mere
errors of fact or law may not be enough to vitiate the award.
Something more is required. To repeat: flaws in the reasoning
of the
arbitrator, evidence in the failure to apply the mind, reliance on
irrelevant considerations or the ignoring of material
factors etc.
must be assessed with the purpose of establishing whether the
arbitrator has undertaken the wrong inquiry, undertaken
the inquiry
in the wrong manner or arrived at an unreasonable result. Lapses in
lawfulness, latent or patent irregularities and
instances of
dialectical unreasonableness should be of such an order (singularly
or cumulatively) as to result in a misconceived
inquiry or a decision
which no reasonable decision-maker could reach on all the material
that was before him or her. [Footnotes
omitted]”
Evaluation:
[13]
In this case, the issue before the Commissioner was whether the
dismissal was substantively fair, i.e., whether the misconduct
in
question was gross to warrant a sanction of dismissal. The
Commissioner had acknowledged Kruger’s concession that she
was
predisposed to using foul language, and further that she had been
insolent towards Pienaar. The Commissioner also accepted
that the use
of foul language in the workplace appeared to be the norm and was not
frowned upon, as long as it was not directed
at anyone in particular.
The starting point however for the Commissioner was whether Kruger
had said ‘
F…k you’
or ‘
Thank you’
at the end of her conversation with Pienaar. To the extent that this
was the Commissioner’s starting point, the issue before
him was
whether if it was established that the foul language was indeed used
and directed towards Pienaar, this constituted gross
insolence to
warrant a sanction of dismissal.
[14]
The offence of insolence is generally equated with conduct which is
offensive, disrespectful, impudent, cheeky, rude, or insulting
[4]
.
Such conduct may be verbal, in writing or through demeanour, and
invariably has the consequences of demeaning the person it is
directed at or his or her authority. At worst, it has an element of
contempt attached to it. Conduct commonly associated with insolence
varies in degrees and extremes, and may include talking back; talking
over; shouting at; aggressively arguing; talking in a disrespectful,
demeaning or contemptuous manner; body language such as eye rolling,
direct finger pointing, looking or walking away whilst the
superior
is talking, or worst, gesturing disrespectfully towards a superior,
including showing him/her the proverbial middle finger.
[15]
It is accepted that the offence of mere insolence is not in itself
sufficient to result in a dismissal. What is defined as
‘mere
insolence’ will obviously depend on the circumstances and the
conduct in question, and its effects. However,
for insolence to
justify a dismissal, it must by all accounts be wilful and serious,
with the result that the employment relationship
irretrievably breaks
down. Examples of gross insolence include some as already indicated
above, and may extent to
inter alia
, verbal abuse and/or
tirades which may be laced with crass profanities, making personal or
crude insults or gestures toward a superior,
coupled with violent
conduct in some instances, or even making physical or other threats.
[16]
Insolence as directed towards persons in managerial or supervisory
positions, especially in the presence of other junior employees,
invariably results in the manager’s or supervisor’s
authority being undermined, and has the effect of either belittling
or humiliating that manager or supervisor. As a general rule
therefore, employees are expected to show professionalism, courtesy
and respect towards their managers and supervisors. If junior
employees fall short of that expectation, ill-discipline and other
unintended consequences may be the order of the day, which may have a
negative effect on productivity and general harmony in the
workplace.
[17]
In
Palluci
Home Depot (Pty) Ltd,
the
Labour Appeal Court, also held that the sanction of dismissal should
be reserved for instances of gross insolence and gross
insubordination. To this end, the LAC accepted that respect and
obedience are implied duties of an employee under contract law,
and
any repudiation thereof will constitute a fundamental and calculated
breach by the employee to obey and respect the employer’s
lawful authority over him or her. The LAC further held that unless
the insolence was of a particularly gross nature, an employer
must
issue a prior warning before having recourse to the final act of
dismissal
[5]
.
[18]
In this case, and as accepted by the Commissioner, it was common
cause that Kruger had been insolent towards Pienaar. The Commissioner
nevertheless based his decision on the fairness of the sanction on
the question whether at the end of the telephonic conversation
between Kruger and Pienaar, the former had ended it by saying ‘
F…k
You!
’ or ‘
Thank You!’.
It was however
submitted during argument on behalf of the Applicant that nothing
turns on the swear words, as the Commissioner
should have had regard
to the context of the conversation between Pienaar and Kruger, and
everything that the latter had uttered
towards Pienaar and her
subsequent conduct.
[19]
I am in agreement with the submissions made on behalf of the
Applicant that an examination of whether the insolence in question
was gross or not should have been considered within the context of
the entire conversation, and that by cherry-picking in regards
to
what was or was not uttered, the Commissioner undertook the inquiry
in a misconceived manner. This is so in that in line with
the factors
to be considered in determining whether a dismissal was fair, the
general effect or consequences of the misconduct
in question as a
whole should be looked at.
[20]
Further to the extent that the Commissioner had placed emphasis on
what was or was not uttered at the end of the conversation,
and in
resolving the disputed versions in that regard, he also undertook the
wrong inquiry, or undertook the inquiry in the wrong
manner. To the
extent that this is so, the invariable conclusion to be reached is
that the Commissioner could not possibly have
come to a reasonable
outcome. These conclusions are further fortified by the following;
20.1
It is trite that in circumstances where a commissioner is confronted
with conflicting versions, the principles
set out in
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell & Kie SA
and Others
[6]
should
find application. Thus it would be expected of the Commissioner to
make a finding on the credibility of witnesses; the reliability
of
the evidence proffered; and to analyse and evaluate the probabilities
or improbabilities of each party’s version on each
of the
disputed issues, with the aim of determining where the truth lies
[7]
.
The question that should be answered is whether the probabilities
favour the party that bears the onus of proof. This exercise
is part
of the functions of the Commissioner as confirmed in
Edcon
Ltd v Pillemer NO & others
[8]
,
which is to weigh all the relevant factors and circumstances of each
case in order to come up with a reasonable decision.
20.2 In
this case, the undisputed evidence before the Commissioner was that
Kruger, and even by her own admission,
had a propensity to use foul
language. Pienaar, as a Regional Manager, rather than setting an
example, was equally guilty of using
foul language. In my view, for
the Commissioner to simply have accepted that the use of foul
language in the workplace was the
norm and thus acceptable, cannot by
all accounts be a mitigating factor in the bigger scheme of things.
The Applicant’s disciplinary
code prohibited the use of such
language, and the fact that employees, including senior people such
as Pienaar liberally used such
language cannot make it acceptable.
20.3
Even if it could be said that the Applicant had generally tolerated
the use of such language, and to the
extent that the Commissioner
sought to determine whether it was gross to justify the dismissal, it
is my view that his conclusions
in that regard failed to take into
account the principles applicable in resolving disputed versions. It
is inexplicable as to how
the Commissioner could possibly have come
to the conclusion that Kruger had merely said ‘
Thank You’
to Pienaar at the end of their telephonic conversation when the facts
before him were as follows;
20.3.1 The Commissioner,
just to reiterate, had accepted, and even on Kruger’s own
version that she was inclined to use foul
language. The evidence of
Smith, who sat opposite Kruger in the office and prior to the
latter’s call to Pienaar was that
she was aware that Kruger was
upset about something, and was about to call Pienaar. Smith had
unsuccessfully appealed to her to
calm down. Kruger, and on her own
version, was upset at the time she made the call, and had started the
conversation by with bombs
such as ‘
pissing her off’
;
‘
you don’t give a sh..t’
; ‘
all you
f….ng care about is…
’; ‘
I am f…ng
sick of it
…’; and ‘
you did not f….ng
notice that…’
20.3.2 Smith’s
evidence was that Kruger had started the conversation with ‘
I
am f….ng cross with you’
. She nevertheless did not
hear anything else other than ‘
You’
at the end of
the conversation when Kruger ended it. The Commissioner did not
examine what the reliability or probabilities of
this version were,
even if proffered on behalf of the Applicant. In my view, it is
highly improbable that Smith, who was seated
across Kruger, could not
have heard the rest of the conversation, and had conveniently only
heard the latter say ‘
You’
, at the end of that
conversation.
20.3.3 The Commissioner
criticised Pienaar’s evidence on the basis that the latter
recalled little about that conversation,
or that he was evasive when
questioned about the conversation, or the Applicant had not called
witnesses to corroborate Pienaar’s
version. The Commissioner
had on the other hand accepted Kruger’s evidence on the grounds
that she was forthright about the
incident and had conceded from the
onset that she was guilty of insolence towards Pienaar.
20.3.4
Pienaar’s evidence in chief however as can be gleaned from the
record
[9]
was that Kruger
had at the end of the conversation said to him ‘
F…k
you’
and dropped the phone. He had under cross-examination, disputed the
version put to him that Kruger had merely said to him; ‘
all
you f….ng care about are the people in PE and I am f…ng
sick of it. Thank you’
[10]
.
20.3.5 Even if it could
be said that Pienaar could not recall the entire conversation, the
issue remained whether Kruger’s
direct version was more
probable than that of Pienaar, and the immediate answer must be in
the negative. This is so in that it
was common cause that at the time
she made the call, Kruger was was upset. On her own version, she had
a propensity to use foul
language and her conversation with Pienaar
was expletive laden throughout. In the light of these chain events
and pattern of behaviour,
what would have been the purpose of saying
‘
Thank you’
after that tirade? The probabilities
are that she had indeed said ‘
F…. k you’
to
Pienaar at the end of her conversation and dropped the phone on him.
She had pursued her tirade against Van Rensburg thereafter,
and
capped it all by throwing her mobile phone against the door and
walking out of the workplace as attested to by Smith. These
could not
have been the actions of an individual who was grateful for the fact
that Pienaar had merely listened to her. Whether
the Applicant had
failed to call a witness to corroborate Pienaar’s version is
neither here nor there, as firstly, any such
witness would merely
have confirmed what Pienaar had said the conversation was all about,
and secondly, there was direct evidence
from Pienaar, which the
Commissioner was obliged to assess its probabilities, as against that
of Kruger’s. Sadly, the Commissioner
was found wanting in this
regard.
20.3.6 A Commissioner is
required to consider all relevant evidence and to undertake a
balanced, equitable and impartial assessment
of the evidence and to
make a reasonable finding on a balance of probabilities. In this
case, the Commissioner failed to do that,
and the conclusion to be
reached is that he committed a gross irregularity. In the light of
the evidence before him, and upon a
proper assessment of the
probabilities of the competing versions, the conclusions reached by
the Commissioner that the Applicant
had not discharged the onus
placed on it to demonstrate through credible evidence that its
version was more probable or more acceptable
than that of Kruger, and
that the misconduct in question was not gross, does not fall within
the band of reasonableness.
[21]
What remains to be determined is whether the Commissioner’s
conclusions on the issue of sanction can be considered to
that of a
reasonable decision maker. Grogan in addressing the use of
inappropriate language in the workplace stated that;
“
While
it is expected that the workplace is not a finishing school, there
are limits to the language which employees are permitted
to use to
express their views. Swearing and invective are generally considered
to amount to misconduct, which may in certain cases
justify dismissal
even on the first occasion; This is so especially so when employees
use abusive words or phrases that impair
the dignity and
sensibilities of those against whom they are directed.”
[11]
[22]
To the extent that the invariable conclusion on the probabilities is
that Kruger had directed the foul language towards Pienaar
as a
superior, the issue is whether in the light of the circumstances of
the case, it can be said that the sanction of dismissal
was fair. It
is trite that there are a variety of factors that a Commissioner
ought to take into account in considering the
appropriateness/fairness
of sanction. The courts have consistently
emphasised that ‘fairness’ is a double-edged sword, as it
does not only serve
to benefit and protect one of the parties to the
employment relationship
[12]
.
[23]
In this case, the Commissioner had concluded that a dismissal was not
appropriate based on his reasoning that he was not convinced
that a
trust relationship had irretrievably broken between Kruger and the
Applicant; that Kruger had not been suspended after the
incident;
that Kruger had a clean disciplinary record, and the fact that the
Applicant’s code called for a final written
warning for
disrespect or impudence towards a superior.
[24]
The Commissioner’s above observations were however premised on
an unreasonable conclusion in regards to the gross nature
of the
misconduct as already illustrated above. The foul language as already
concluded was directed towards Pienaar as a superior.
It was
insulting, demeaning, disrespectful and uncouth in the extreme. Foul
language as evident in this case cannot by all accounts
be classified
as ‘descriptive’ as the Commissioner had concluded. There
is nothing ‘
descriptive’
about an expletive such
as ‘
F…k you’,
as directed towards a
superior, let alone anyone in the workplace including the lowest paid
or ranked employee.
[25]
Kruger does indeed have good reasons to be embarrassed by the ease
with which profanities come out of her mouth, especially
in the
workplace. Her conduct towards Pienaar demonstrated lack of respect,
and invariably demeaned and destroyed the relationship
between her
and him as her immediate superior, and it can safely be concluded
that such conduct had the effect of humiliating him
in the extreme.
It does not require further evidence to draw such inferences from the
tirade in question.
[26]
Even if the use of foul language may have been condoned by the
Applicant in the workplace overtime, there was a limit within
which
such language could be tolerated. It is accepted that the demands of
a modern workplace are generally stressful and can sometimes
be
taxing on normal senses of civility and decency. A workplace is not
by all accounts, a meeting place for saints, the decorous
and/or
prudish. In the same vein, it can however never be acceptable that
workplaces should be avenues for stressed-out individuals
to
leisurely and gratuitously emit vulgarities towards anyone. The
concept of ‘industrial language’ if ever there is
such a
thing, cannot be a license to be obscene and uncivilised.
Accordingly, it cannot be accepted for an employee to relate to
a
superior in the manner that Kruger had.
[27]
In regards to the issue of whether the trust relationship between the
parties had irretrievably broken down, the Labour Appeal
Court in
Woolworths
(Pty) Ltd v Mabija and Others
,
recently amplified the long-standing approach adopted in
Edcon
Ltd v Pillemer NO and Others
[13]
and held that;
‘
The
fact that the employer did not lead evidence as to the breakdown of
the trust relationship does not necessarily mean that the
conduct of
the employee, regardless of its obvious gross seriousness or
dishonestly, cannot be visited with dismissal without any
evidence as
to the impact of the misconduct. In some cases, the outstandingly bad
conduct of the employee would warrant an inference
that the trust
relationship has been destroyed. It is however always better if such
evidence is led by people who are in a position
to testify to such
break down. Even if the relationship of trust is breached, it would
be but one of the factors that should be
weighed with others in order
to determine whether the sanction of dismissal was fair
[Citations
omitted]
[14]
.
[28]
In line with the above approach, this would imply that where an
employee has committed gross misconduct, and a Commissioner
makes a
finding that the sanction of dismissal was nevertheless inappropriate
on the basis that the employer failed to lead evidence
on the
breakdown of a trust relationship, this will constitute a reviewable
irregularity on the Commissioner’s part.
Thus where it is
clear that the employee was guilty of the gross misconduct as in this
case, it should invariably be concluded
that the effect thereof would
be to render the employment relationship intolerable. To the extent
that it may have been found that
the misconduct was not gross
however, the onus is still upon the employer to lead evidence of the
irretrievable breakdown of the
relationship.
[29]
In this case, the misconduct in question was gross. Kruger on her own
admission, was predisposed to using foul language. As
already
concluded elsewhere in this judgment, she had been grossly insolent
towards Pienaar. On the evidence before the Commissioner,
Kruger was
advised by Smith to calm down before making the call to Pienaar. She
was nevertheless bent on venting out, and had done
so in the most
vulgar manner. There is no evidence to suggest that she had
immediately apologised to Pienaar after her foul-mouthed
tirade,
including and up to the date of her dismissal. In essence, she failed
to appreciate or acknowledge the effect of her verbal
abuse towards
Pienaar. It was only at the commencement of the arbitration
proceedings that she had conceded to having been insolent
towards
Pienaar, and even then, she had sought to water-down the vulgarity,
by describing it as merely ‘descriptive’.
Pienaar on the
other hand, and contrary to the Commissioner’s conclusions, had
testified that the trust relationship had
broken between the employer
and employee after the altercation
[15]
.
The issue of whether Kruger was suspended or not after the incident,
and contrary to the Commissioner’s conclusions or observations,
was not material to a determination of the appropriate sanction. A
suspension, whether precautionary or otherwise, does not necessarily
follow with each incident of alleged misconduct, nor is it
necessarily determinative of whether a trust relationship has been
broken or not.
[30]
It is acknowledged as the Commissioner had done, that the Applicant
was no less blameworthy in that it had allowed if not condoned
the
use of foul language in the workplace over time, and that Pienaar was
equally guilty rather than setting an example. It is
apparent that
the Commissioner in imposing the sanction of a final written warning
had considered these and other factors, including
the fact that
Kruger had a clean disciplinary record, and the fact that the
Applicant’s own disciplinary code provided for
a final written
warning for insolent remarks in respect of a first offence and a
dismissal in respect of a second offence. Furthermore,
the code in
respect of the use of foul language called for a warning, final
written and dismissal for a first, second and third
offence.
[31]
The above considerations clearly appear to have persuaded the
Commissioner that a sanction of dismissal was not appropriate.
However, even if these factors could have been compelling, given the
nature of the insolence and the effect thereof, a working
relationship could not possibly have been sustainable, and the
decision of the Commissioner to reinstate her with a final written
warning under the circumstances cannot by accounts be that of a
reasonable decision maker.
[32]
To the extent that there might be merit in the argument that the
factors as above may have called for some form of remedy,
the
provisions of section 193 (2) (b) and (c) of the LRA are clear. Thus,
in considering whether to reinstate or not as required
by the
provisions of section 193 (2) of the LRA
[16]
,
a Commissioner is still obliged to consider whether the circumstances
surrounding the dismissal are such that a continued employment
relationship would be intolerable, or whether it was reasonably
practicable for the employer to reinstate or re-employ the employee.
In this case, and in the light of the evidence that a trust
relationship had been broken as a consequence of the incident between
Kruger and Pienaar, it followed that it would not have been
reasonably practical to impose a continued employment relationship
between the parties, as the circumstances that led to the dismissal
made that relationship unsustainable. This was even moreso
in the
light of Kruger’s conduct after her tirade, which included her
throwing her work issued mobile phone at the door,
walking out of the
workplace, specifically stating that she was ‘
sick
of this place’
,
and her outright failure to show any form of contrition. In this
case, the Commissioner paid scant regard to the provisions of
section
193 (2) of the LRA in considering a remedy, and it follows that an
order of reinstatement was therefore not a reasonable
decision to
come to.
[33]
In the light of the above conclusions, and since a remedy of
reinstatement was not appropriate after a proper consideration
of the
provisions of section 193 (2) of the LRA, the issue would then have
been whether Kruger was entitled to any form of alternative
remedy as
contemplated in section 194 of the LRA
[17]
.
Ordinarily, and only to the extent that the issue of remedy in the
form of compensation remains to be determined, the issue is
whether
the matter should be remitted back to the CCMA. In my view, no
purpose would be served with such an exercise given the
history of
this matter and the narrow issue to be determined. There is
sufficient material before court for it to make a final
determination
on the matter
[18]
.
[34]
The provisions of section 194 (1) of the LRA
[19]
enjoins this Court and any arbitrator with discretion in regards to
how much compensation, if any, should be awarded, taking into
account
what is just and equitable. Factors to be considered in awarding
compensation have recently restated in
South
African Revenue Service v Commission for Conciliation, Mediation and
Arbitration and Others
[20]
.
In this case, the misconduct in question was gross, which had the
effect of irretrievably breaking down the employment relationship.
As
already indicated, the Applicant had not done itself any favours by
condoning the use of foul language in the workplace over
a period,
and the fact that Pienaar himself was equally guilty of such conduct
did not assist the Applicant’s case. Furthermore,
Kruger’s
clean disciplinary record and the Applicant’s own disciplinary
code and procedure provided for progressive
discipline in instances
of the use of foul language and insolent behaviour. A harsher
sanction was nevertheless called for in the
light of the gross nature
of the offence in question, and to the extent that there is merit in
the argument that a dismissal was
harsh, in my view, and having had
regard to all the circumstances of this case, an award of
compensation equivalent to three months’
salary is just and
equitable.
[35]
In regards to the issue of costs, and further to the extent that the
Third Respondent was partially successful, considerations
of law and
fairness dictate that a cost order should not be made.
Order:
i.
The portions of the
arbitration award issued by the Second Respondent under case number
ECEL2754/13 dated 2 April 2014, in terms
of which;
a)
Ms. Lee-Ann Kruger was
reinstated in the employ of the Applicant with a Final Written
Warning valid for twelve months from the date
of her dismissal; and
b)
In terms of which Ms.
Lee-Ann Kruger was awarded back-pay in the amount of R169 421.45 are
reviewed, set aside and replaced with
the following:
‘
The
Applicant (Respondent in arbitration proceedings), is ordered to pay
to Ms. Lee-Ann Kruger, compensation equivalent to three
(3) months’
salary calculated as at the date of her dismissal’
ii.
There is no order as to
costs.
________________
Tlhotlhalemaje, J
Judge
of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant:
Adv.
M Grobler
Instructed by:
Kirchmanns INC
On
behalf of the Third Respondent: Adv. F Le Roux
Instructed
by:
Bax Kaplan Russell INC
[1]
Sidumo and
Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ
2405 (CC) at para 110. See also Herholdt v Nedbank
Ltd (Congress of
South African Trade Unions as amicus curiae) [2013] 11
BLLR 1074] (SCA); Gold Fields Mining South
Africa (Pty) Ltd
(Kloof Gold Mine) v Commission for Conciliation, Mediation and
Arbitration and others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC); and Head of the
Department of Education v Mofokeng
[2015] 1 BLLR 50
(LAC).
[2]
See
Herholdt at
paras [12] and [13] as referred to with approval in Quest Flexible
Staffing Solutions (Pty) Ltd (a division of
ADCORP Fulfilment
Services (Pty) Ltd) v Lebogate
[2015] 2 BLLR 105
(LAC) at para [12]
[3]
2003 (1) SA
11
(SCA) at para [16]
[4]
Commercial
Catering & Allied Workers Union of SA & Another v Wooltru
Ltd t/a Woolworths (Randburg) (1989) 10 ILJ
311 (IC) at 314-315
A-B.
[5]
[2015] 5
BLLR 484
(LAC) at para [22]
[6]
At para [5]
where it was held that;
‟
The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised as follows.
To come to
a conclusion on the disputed issues a court must make findings on
(a) the credibility of the various factual witnesses;
(b) their
reliability; and (c) the probabilities.”
[7]
Sasol
Mining (Pty) Ltd v Ngqeleni NO & Others (2011) 32 ILJ (LC) at
para [9] where Van Niekerk J held that;
“
One
of the commissioner’s prime functions was to ascertain the
truth as to the conflicting versions before him. As I have
noted,
this much the commissioner appears to have appreciated. What he
manifestly lacked was any sense of how to accomplish the
task, or
which tools were at his disposal to do so. The commissioner was
obliged at least to make some attempt to assess the
credibility of
each witness and to make some observation on their demeanour. He
ought also to have considered the prospects of
any partiality,
prejudice or self-interest on their part, and determined the credit
to be given to the testimony of each witness
by reason of its
inherent probability or improbability. He ought then to have
considered the probability and improbability of
each party’s
version. The commissioner manifestly failed to resolve the factual
dispute before him on this basis.”
[8]
(2008) 29
ILJ 614 (LAC) para 21.
[9]
Page 16
lines 1 to 16
[10]
See page 45 of the record, line 7
[11]
John
Grogan, Dismissal (Juta & Co Lt, Lansdowne, 2002) at page 179
[12]
See NEHAWU
v University of Cape Town & others (2003) 24 ILJ95 (CC) par
3839. See also Branford v Metrorail Services (Durban)
2003 24
ILJ 2269 (LAC) 2278H-2279A
[13]
At para 19
[14]
[2016]
6 BLLR 568
(LAC) at para 21. See also Anglo Platinum (Pty) Ltd
(Bafokeng Rasemone Mine) v De Beer and others (2015) 36 ILJ 1453
(LAC)
[15]
Line 3 at
page 19 of the record
[16]
Which
provides that;
‘
The
Labour Court or the arbitrator must require the employer to
reinstate or re-employ the employee
unless –
…………
..
…………
..
[17]
Which
provides;
‘
194.
Limits on compensation
(1)
The compensation awarded to an employee whose dismissal is found to
be unfair either because the employer did not prove that
the reason
for dismissal was a fair reason relating to the employee's conduct
or capacity or the employer's operational
requirements or the
employer did not follow a fair procedure, or both, must be just and
equitable in all the circumstances, but
may not be more than the
equivalent of 12 months' remuneration calculated at the employee's
rate of remuneration on the date
of dismissal.’
[18]
See Palluci
at para [58] where it was held that;
‘
Where
all the facts required to make a determination on the disputed
issues are before a reviewing court in an unfair dismissal
or unfair
labour practice dispute such that the court “is in as good a
position” as the administrative tribunal to
make the
determination, I see no reason why a reviewing court should not
decide the matter itself. Such an approach is consistent
with the
powers of the Labour Court under s 158 of the LRA, which are
primarily directed at remedying a wrong, and providing
the effective
and speedy resolution of disputes. The need for bringing a speedy
finality to a labour dispute is thus an important
consideration in
the determination, by a court of review, of whether to remit the
matter to the CCMA for reconsideration, or
substitute its own
decision for that of the commissioner. Thus, where the issues
are largely common cause, the pleadings
comprehensive, the full
record of both the disciplinary and arbitration proceedings are
before the court, and there has been
a elapse of almost 20 months
from the date of dismissal to the date of finalisation of the review
application, such as in this
case, the consideration of bringing the
dispute to a speedy finality would certainly have a bearing on the
decision of the reviewing
court to decide the dispute, and not remit
it to the CCMA, because it is “in as good a position” as
the CCMA to do
so. The Labour Court’s decision not to remit
the dispute to the CCMA for determination is accordingly justifiable
upon
a consideration of the facts of this case’
[19]
Which
provides that;
‘
The
compensation awarded to an
employee
whose
dismissal
is found to be unfair either because the employer did not prove that
the reason for
dismissal
was
a fair reason relating to the
employee's
conduct or capacity or the employer's
operational
requirements
or the employer did not
follow a fair procedure, or both, must be just and equitable in all
the circumstances, but may not be
more than the equivalent of 12
months' remuneration calculated at the
employee's
rate of remuneration on the date of
dismissal
.
‘
[20]
(CCT19/16)
[2016] ZACC 38
(8 November 2016) at paragraphs [50] to [58]