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[2016] ZALCD 21
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Absa Bank Limited v Ngwane NO and Others (D1149/14) [2016] ZALCD 21 (11 October 2016)

IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Reportable
Case
no: D1149/14
In
the matter between:
ABSA
BANK LIMITED
Applicant
and
JABULANI
NGWANE
NO
First Respondent
THE
CCMA
Second Respondent
IVAN
CHETTY
Third Respondent
Heard:
8 June 2016
Delivered:
11 October 2016
Summary:
Review - CCMA - evaluation of evidence- credibility and probabilities
– when demeanour and probability bound together
- similar fact
evidence - meaning of charges cannot mutate from one forum to another
– when reinstatement under section 193(2)(b)
may be avoided
JUDGMENT
WHITCHER
J
1.
This is an application in terms of section 145 of the LRA for an
order reviewing and setting aside the arbitration award issued
by the
First Respondent (‘the commissioner’) under the auspices
of the CCMA.
2.
In terms of the award the dismissal of the Third Respondent
(“Chetty”) by the Applicant (“ABSA”) was

found to be substantively unfair and it was ordered to reinstate him
retrospective to his date of dismissal.
Background
3.
On 16 April 2014, Chetty’s cellphone beeped while in his pocket
in a section of the bank where cellphones were prohibited.
He was an
active participant in a heated staff meeting about possible
outsourcing when this happened. Chetty had, on two previous

occasions, been reprimanded for not leaving his cellphone behind when
coming to work.  After the staff meeting he was summoned
to
Yvette Canham’s office. She and three other managers attended
this meeting and proceeded to reprimand Chetty. Chetty told
them that
he had brought the cellphone with him out of force of habit. He
stated that the only way to get rid of this habit was
to throw his
phone away. He then threw the phone into Canham’s bin. Shortly
thereafter he left the office.
4.
It was common cause that seven months before this incident, Chetty
had sworn at and threatened a line manager, Charles Naidoo.
Chetty
was charged with ‘intimidation, bullying and threatening’
behaviour and subjected to a disciplinary hearing.
At this earlier
hearing, Chetty pleaded guilty, apologised for his ‘terrible
misconduct’ while also providing an explanation.
This
explanation centred on Chetty’s sense that Naidoo rudely blamed
by him for something not his fault. ABSA decided not
to dismiss
Chetty but issued him with a final written warning valid for twelve
months.
5.
The three other managers in Canham’s office when Chetty threw
his phone into the bin were Naidoo, Vinben Govender and Aavishkar

Morar. Shortly after the incident they all submitted written
statements recording what happened.
6.
Chetty was charged with misconduct. Although the charge mutated over
time, Chetty finally faced charges on two grounds: Refusal
to obey a
reasonable and lawful instruction” in that he had not complied
with ABSA’s security policy in respect of
cell-phones on the
cash floor; and Rude and unapproachable behaviour in that Chetty
acted in an aggressive and insubordinate manner
by throwing his
cellphone into the dustbin of his superior while being reprimanded
for his misconduct.
7.
At his disciplinary hearing, Chetty eventually pleaded guilty to not
complying with ABSA’s security policy by bringing
his cellphone
into a prohibited area. He pleaded not guilty to the second charge of
rude and unapproachable behaviour.  The
outcome of the hearing
was that Chetty was found guilty on both charges and dismissed,
whereupon he referred an unfair dismissal
dispute to the CCMA.
Evidence
at the CCMA
8.
At the CCMA, Chetty acknowledged breaching a rule against having a
cellphone where they were prohibited. The substance of his
defense
was that he did not deliberately refuse - but rather failed - to
comply with the rule. Chetty testified that he did not
use his
cellphone in the prohibited area and there was indeed no evidence to
this effect from ABSA.
9.
ABSA’s four witnesses - Naidoo, Canham, Govender and Morar –
stated that Chetty threw the phone into the bin in an
aggressive and
insubordinate manner. They all said that he ‘charged’ in
Canham’s direction, then threw his phone
in an overarm
movement. Canham was visibly shocked or scared by his action. The
four witnesses admitted that as Chetty threw the
phone into the bin
he stated that he was doing so because it was the instrument that
caused him to ‘sin’.
10.
Chetty denied that he threw the phone into the bin in an aggressive
and insubordinate manner. He claimed that he was frustrated
with
himself and decided to dispose of the phone as it was getting him
into trouble. This is what he told the managers he was doing
as he
threw it in the bin. This gesture was also meant to convey that he
was sorry for failing to abide by the rule.
Analysis
of Grounds of Review
Refusal
to Obey a Lawful Instruction
11.
The commissioner was criticized for failing to find that possession
of a phone in a prohibited area constituted a
refusal
by
Chetty to obey a reasonable instruction warranting dismissal as a
sanction.
12.
Although ABSA stressed the security risks posed when employees had
cellphones in prohibited areas and although Chetty had been

reprimanded for failing to adhere to this rule before, the evidence
before the commissioner did not establish that he was ripe
to be
fairly dismissed on this charge. Chetty had been admonished on two
occasions in a 26-year career, with only one of these
being a recent
infraction. The fact that ABSA only reprimanded Chetty (and,
incidentally, also Naidoo) on a previous occasion for
the same
conduct and seemed busy reprimanding Chetty again in Canham’s
office suggests that progressive discipline short
of dismissal would
have been the most likely next step had Chetty not also thrown his
phone into the bin in a manner that offended
the four managers.
Indeed, evidence before the commissioner showed that both Canham and
Morar’s response to the beeping phone
was that they did not
regard this, on its own strength, to be a dismissible offence.
13.
The evidence before the commissioner was that Chetty most likely
forgot to leave his phone outside as opposed to deliberately
ignoring
the rule. Moreover, Chetty did not actually use the phone and
immediately conceded his error.  It was thus not unreasonable

for the commissioner to treat this infraction in substance as one of
a
failure
to obey a rule rather than a refusal. When this is
seen in light of the level of progressive discipline ABSA had earlier
applied
to Chetty and Naidoo, a mere reprimand, it is not difficult
to understand how the commissioner declined to confirm dismissal as

an appropriate sanction for the actual underlying offense.
14.
Counsel for Chetty, Mr. Ungerer, pointed out that the ABSA
disciplinary code distinguished between the wilful refusal to obey
an
instruction, for which dismissal was the recommended sanction and a
failure to obey for which a final written warning or dismissal
were
indicated. He speculated that the charge was deliberately escalated
to ensure that Chetty was dismissed. It is not necessary
for this
court to opine on this beyond to agree that, for whatever reason,
Chetty’s charge was more severe than its factual
basis and that
the commissioner quite correctly spotted this fact and ruled
accordingly.
15.
Review applications are not strengthened by attempts to show that a
commissioner got everything wrong. In the present case,
it was quite
apparent that the real problem ABSA had with the award was the
finding that the cellphone was not thrown in anger
or defiance. To
persist with subsidiary and weaker grounds of review when the record
provides scant justification for them, serves
little purpose.
16.
Another example of this is the argument on sanction, where this court
was asked to find that the commissioner’s reliance
on Chetty’s
long-service of 26 years as a mitigating factor was an attitude no
reasonable decision-maker would have taken.
Instead the 26 years’
service should have been seen as an aggravating factor, ABSA pleaded.
I reject this argument. While
seniority, which may be associated with
long service, could be an aggravating factor, it would be almost
perverse for an employee
with years of service behind his name to
have his mere length of service increase his chances of dismissal
should he or she break
a rule.
17.
For reasons that follow later, the commissioner’s finding that
Chetty was sorry for his breach of the rule is also not
an
unreasonable finding, particularly given the commissioner’s
assessment of Chetty’s bearing and demeanour in the
CCMA. It is
perhaps not a finding this court would have made but to intervene for
this reason is to perforate what remains of the
boundary between
review and appeal.
18.
I therefore reject the ground of review that the commissioner reached
unreasonable conclusions on guilt and sanction concerning
Chetty’s
‘refusal’ to obey an instruction.
Aggressive
and Insubordinate Behaviour
19.
Although the wording of the second charge changed during the
disciplinary process, it is apparent from the pleadings and argument

before this court that Chetty obtained his dismissal by throwing his
cellphone into the dustbin in a way his employer alleged was

aggressive and insubordinate. The allegation that he refused to
remove the phone from the bin or that he slammed the door on the
way
out were not particulars of the misconduct for which he was charged.
Rather, they were cited to establish his aggressive and
insubordinate
mind-set.
20.
In finding Chetty’s dismissal substantively unfair, the
commissioner preferred his version about how and why the phone
was
thrown into the bin over the version of the four ABSA witnesses. ABSA
argues that the commissioner malfunctioned in exercising
this
preference. This further had a distorting effect on the outcome of
the case, which for any reasonable decision-maker would
have been to
find that Chetty acted aggressively and disrespectfully and thus to
uphold his dismissal.
21.
In preferring Chetty’s version, the commissioner noted that
statements made by ABSA’s witnesses directly after the
incident
made no mention of Chetty’s aggression
[1]
in contrast to their testimony at the CCMA. The commissioner went on
to accept Chetty’s explanation that he was doing what
he
declared to the four managers he was doing. This was disposing of the
instrument that was getting him into trouble so that he
was incapable
of transgressing again and could demonstrate how sorry he was.
22.
Mr. Myburgh, for ABSA, argued that the commissioner erred in
resorting to a credibility finding to resolve the factual dispute

about Mr. Chetty’s behaviour when the probabilities clearly
favoured ABSA’s version. This would be a misdirection because,

as legal commentators Myburgh and Bosch correctly point out, “the
evaluation of a credibility of a witness is never a substitute
for
the evaluation of the content of his or her evidence”
[2]
.
In support of this the learned authors cite a number of cases.
[3]
23.
Notwithstanding this, I am not persuaded that the commissioner in
this case was in a position to decide the matter on the probabilities

alone. The evidence ABSA claimed the commissioner irregularly ignored
was either properly ignored or did not so firmly establish
the
plausibility of the bank’s version over Chetty’s so as to
warrant this court’s intervention.
24.
In the first instance, ABSA wrongly took the commissioner to task for
failing to take into account Chetty’s previous run-in
with
Naidoo. They would have this show Chetty’s predisposition to
aggression or insubordination towards his supervisors.
This is
similar fact evidence. The exclusionary rule against similar fact
evidence is generally observed because it avoids reliance
on unfairly
prejudicial information with low probative value when disputes of
fact are decided. As such, the rule contributes to
a fair outcome
(and saves time). While the rules of evidence do not have to be
strictly applied in the CCMA, a commissioner must
still ensure a fair
outcome.
25.
The classic exception to the rule is that similar facts may be
admitted if they are ‘strikingly similar’
[4]
.
Thus, when the commissioner is criticized for not taking Chetty’s
prior bad acts into consideration, he is in fact criticized
for
refusing to find that Chetty’s prior behavior in Naidoo’s
office was strikingly similar to his behaviour in Canham’s

office. I do not understand the court in
Gaga
[5]
to
have instituted a different exception in labour law to the rule
against similar fact evidence than the ‘strikingly similar’

exception in the rest of our legal system. In
Gaga
the court found that evidence of prior sexual harassment may be
admitted as similar fact evidence as it demonstrated a pattern
of
similar conduct. However, this pattern is not created merely by the
common name given to the misconduct but by an established
common
modus
operandi
.
In
this case, the commissioner’s failure to consider Chetty’s
prior bad acts was not unreasonable. There are distinct
differences
in these two instances of misconduct, despite the common label of
aggression and insubordination ABSA applied to both.
Chief among
those is that Chetty conceded fault in Canham’s office; he was
not reacting to a false accusation. The commissioner
therefore cannot
be blamed for failing to take the actions of Chetty in Naidoo’s
office into account as part of the proof
that Chetty similarly
misconducted himself later in Canham’s office seven months
later.
26.
ABSA also contends that the probabilities favour Chetty having
disposed of the phone in an insubordinate and aggressive manner

rather than as an act of contrition and frustration at himself. This
is because a cellphone is an important personal item containing

contacts and information. Throwing it away is such a ‘bizarre’
act that it seems more an act of defiance and aggression
than an
acceptance of fault. Therefore, according to ABSA, the commissioner
had evidentiary material before him – Chetty’s
wholly
improbable defense – and he should have taken this into account
in deciding the factual dispute rather than relying
on the prior
inconsistent statements of ABSA’s witnesses.
27.
It seems to me that the items of evidence which would have allowed
the commissioner to decide the matter purely on the probabilities
did
not in fact demonstrably tip them in ABSA’s favour. First,
there is a distinct, although not overwhelming, improbability
that an
employee, already on a final warning, would commit a second offense
that would almost certainly attract dismissal. Second,
the personal
value of the cellphone, logically, cuts both ways. If it had too much
value to be thrown away and abandoned in an
act of contrition and
frustration, the same applies to its being thrown away and abandoned
in an act of aggression.
28.
Third, ABSA expected the commissioner to discount the likelihood that
all four witnesses would lie in characterizing Chetty’s

behaviour as aggressive. However, in this case, assessing the
probability that four witnesses would all lie or be mistaken cannot

be undertaken without an assessment of the credibility of these
witnesses; demonstrating that a neat division between probability
and
credibility related lines of evidentiary analysis is not always
possible
[6]
. All four ABSA
witnesses felt that Chetty should have been dismissed for his earlier
intimidation of Naidoo. Morar described Chetty
as generally
troublesome and prone to incite staff in the way he raised
grievances. The commissioner also fixed on the fact that
ABSA’s
witnesses only remembered that Chetty was aggressive at the CCMA.
This is not an ordinary prior inconsistent statement.
It is the
crucially inculpatory one. The commissioner also had evidence before
him that suggested embroidery on the part of some
witnesses in other
important respects. For instance, Morar had Chetty walking out of the
office in his initial statement whereas
at the CCMA he testified that
Chetty rushed out and slammed the door. Almost all the witnesses only
made mention of Canham’s
being ‘afraid’, ‘shocked’
or her ‘eyes popping out’ at the CCMA. It seems to me
that, taken
together, these elements could reasonably suggest a
degree of latent bias against Chetty on the part of the witnesses in
their
testimony at the CCMA. While bias is ordinarily taken into
consideration when assessing credibility, when witnesses have a
motive
to exaggerate their evidence, and there are signs of such
exaggeration, this reduces the inherent improbability that these
witnesses
would all separately lie or be mistaken about Chetty.
29.
I also agree with Mr. Ungerer that the distinctive verb (“charge”)
used at the CCMA by all the ABSA witnesses to
describe Chetty’s
movement contributes to an impression of rehearsed testimony. This
further fortifies the impression that
the witnesses against Chetty
may not have been entirely independent. What the interconnection of
bias, (over-) corroboration and
probability in this case shows is
that it is not always possible to decide the probabilities divorced
from issues that normally
and separately establish witness
credibility.
30.
The commissioner also reasonably relied on the words uttered by
Chetty as he threw the phone away (he was getting rid of ‘the

instrument that caused him to sin’), as an indication of his
true intention at the time. It would take some cynicism combined
with
very quick thinking for an angry Chetty to charge towards Canham
while at the very same time verbally blaming himself for
forgetting
to leave his phone in the car.
31.
Fifthly, and crucially, we have the commissioner’s assessment
of Chetty’s demeanour and bearing during the hearing.
Chetty
came across as someone lacking in ‘grace’ in the way he
expressed himself and with an ‘abrasive’
manner. The
commissioner acknowledged that throwing a cellphone into a bin might,
in general, indicate an intention to undermine
authority. However,
for someone like Chetty, it appeared plausible to the commissioner
that throwing the phone into the bin could
have been an overblown
‘show of remorse’.  In explaining himself, Chetty
said: “I want to say that I was
disappointed with myself. I
wanted the managers to see that I wanted to change, I don't want to
be caught again with a cellphone.
I placed it in the bin so that I
could keep my job rather than the cellphone”. Reading the
transcripts in light of the commissioner’s
assessment of
Chetty’s demeanour and bearing, I can see how a reasonable
decision-maker might accept Chetty’s explanation
for why he
threw his phone away as not being ‘bizarre’ at all. Once
again, an assessment of credibility (demeanour)
is interconnected
with an assessment of the probabilities of a case, much as a judge
might only understand why a witness acted
in an unusual way when he
observes his eccentric manner in court. It must be borne in mind
that, when evaluating evidence where
demeanour and probability are
bound together, the commissioner was the one who had the benefit of
several hours of observation
of Chetty, something this court patently
lacks.
32.
When reviewing a commissioner’s evidential findings a danger
exists of straying across the boundary of review into appeal.
It is
trite that a reviewing court does not have to agree with a
commissioner’s evaluation of evidence. In this case I must
ask
whether no reasonable commissioner would have decided the case based
on the credibility of witnesses rather than disposing
of it by
assessing the overall probabilities of the two versions first. This
question should be answered having regard to all the
evidential
material before the commissioner and not bits and pieces looked at in
isolation. In my view, it was not unreasonable
for the commissioner
to have taken the view that the probabilities were evenly balanced.
This would then permit the commissioner
to make a factual finding by
recourse to witness credibility. Indeed, in this case, it was very
difficult to separate one class
of believability from the other and
the commissioner correctly ended up deciding which version to believe
with issues of probability
intersecting with credibility.
33.
On credibility viewed on its own, when the evidence is considered
holistically, the commissioner, in my view, had material before
him
reasonably permitting him to accept that Chetty threw the phone more
in a melodramatic act of contrition than in an aggressive
and
insubordinate manner.
34.
The review test formulated recently in
Mofokeng
[7]
provides for setting an award aside only if an irregularity or error
is deemed to have a distorting effect on the outcome. In this
case,
ABSA contends that the commissioner failed to explicitly take into
account certain ancillary pieces of evidence. One is that
Chetty
slammed the door on the way out, an action tending to corroborate a
version in which Chetty was aggressive and insubordinate.
As the case
was pleaded, testimony about slamming the door came from one witness
only, Morar. Not taking this piece of evidence
into serious
consideration in deciding the case does not appear to be irregular
because this detail was tainted by negative consistency
on the part
of the single witness who mentioned it.
35.
I have already found that the value of ABSA’s witnesses
corroborating each other on Chetty’s aggression is diminished.

This is because most of them made prior inconsistent statements on
this issue and there are reasonable suggestions of embroidery
and
rehearsal on the part of all. It is an important discrepancy,
bringing up aggression only at the CCMA, and the commissioner
was
correct in giving it prominence in the award.
36.
The commissioner does err in making a factual finding that none of
the four witnesses described Chetty’s behaviour as
aggressive
in their initial statements. Three of the four witnesses did not
mention aggression at all. However, Govender’s
statement stated
that Chetty’s ‘body language came across as being very
aggressive’. The commissioner may have
erred in not
specifically considering the import of the dispute of fact between
Chetty and Govender. However, since it was a dispute
of fact between
one witness on either side, the distorting effects of such an error
are, to my mind, not decisive.
Failure
to decide whether Chetty was rude and unapproachable
37.
ABSA contends that because the commissioner focused on whether Chetty
had been aggressive and insubordinate, he failed to enquire
into and
decide a principal issue for determination: whether Chetty was rude
and unapproachable.
38.
Disciplinary charges do not have to be drafted with the particularity
of a criminal indictment. As the Labour Court in
Bissoon
stated, a charge must give an employee “particularity
sufficient to put [him] to his defence”
[8]
.
This information usually includes the name of the offense, its date
and approximate time, the venue at which it took place and
a brief
description of the facts underlying the charge. Having said that, an
employer cannot dismiss an employee for breaching
a particular rule
and then defend the fairness of that dismissal at the CCMA by showing
that the employee contravened another rule
altogether. The relative
informality of disciplinary hearing charges does not cancel the
requirement that charges should denote
something specific and
semantically stable. In this case, ABSA, a sophisticated employer,
took some time to settle on what exactly
it was unhappy with the
employee for having done. The final charge explained Chetty’s
rudeness and unapproachability as
consisting
of his aggressive and insubordinate throwing of the phone into
Canham’s bin.
39.
It would undermine the process of adjudication of factual disputes to
dismiss an employee for being rude and unapproachable
in that
he did X, but when it is shown that he did not do X, to still obtain
his dismissal for being rude and unapproachable in some other,

unstated or diffuse way. By alleging that the employee was rude “in
that” he was aggressive and insubordinate, an employer
is
alleging that the rudeness consisted of acts of aggression and
insubordination. The employer hitched its wagon to a particular
type
of rudeness and unapproachability in its charge; the aggressive and
insubordinate type. When the commissioner found that an
act of
aggression and insubordination did not occur, it was perfectly
reasonable for him to have considered the underlying factual
dispute
and principal issue to have been disposed of adequately.
40.
It would nullify the concept of a hearing
de novo
, if ABSA’s
expectations of how dismissal disputes are decided were to take hold.
Employees dismissed for being rude
in that
they disobeyed an
instruction could thereby have the substantive fairness of their
dismissal confirmed even if it were disproven
that they disobeyed any
instruction. All an employer had to do was present evidence at the
CCMA of another instance of contemporaneous
rudeness. This cannot be
fair. Avoiding the over-complication of disciplinary charge sheets is
a laudable goal. However, achieving
this should not come at the price
that the meaning of charges should be allowed to mutate from one
forum to another.
Misconstruing
the refusal to obey an instruction
41.
ABSA argued that the commissioner misconstrued the portion of the
allegation about a refusal to obey an instruction as if this
had to
do with Chetty’s refusal to remove the phone from the bin when
requested to do so. In a section of the CCMA award
setting out the
disputed issues, the commissioner did appear to misconstrue the
factual basis of the charge of refusal to obey
a lawful instruction.
However, this had no distorting effect on the outcome. This is
because, later, in his analysis of the evidence,
the commissioner
pertinently considered and decided the true factual issue underlying
the refusal-to-obey charge. This was whether
Chetty intentionally
defied the employer in bringing the phone onto the floor. The
commissioner accepted Chetty’s explanation
about ‘force
of habit’ for reasons set out above.
Sanction
36.
The test for whether the employment relationship has irretrievably
broken down is not satisfied merely because employer witnesses
assert
their subjective view to this effect. The proven facts must establish
an objective basis for the breach of the relationship.
It is thus not
particularly meaningful to assert, in and of itself, that a
commissioner erred in reinstating an employee despite
undisputed
evidence that the relationship had broken down coming from the
employer’s witnesses. This is not the type of assertion
that,
to my mind, needs to be challenged in cross-examination lest it be
taken as proven. It expresses a subjective view and does
not claim
the existence of a fact that can be specifically contradicted.
37.
The award was also challenged on the basis that the commissioner
failed to take into account evidence that a continued employment

relationship was intolerable in terms of section 193(2)(b) of the
LRA. Were ABSA to have wished to avoid Chetty’s reinstatement

by operation of section 193(2)(b) of the LRA, it needed to establish
that a continued employment relationship was intolerable because
of a
reason other than the guilt of the employee or the appropriateness of
the sanction on the charge for which the employee was
dismissed. It
is trite that the primary relief for a finding of substantive
unfairness in dismissal is reinstatement. If the employee’s

dismissal was found to be substantively unfair, it is taken that a
finding was made that, as far as the reasons for which he was

dismissed are concerned, the employment relationship was found to
still be intact. This is either because the employee was not
guilty
or the sanction was deemed too harsh. Reinstatement under section
193(2)(b) may only be avoided if ‘circumstances
surrounding the
dismissal’ indicate that the employment relationship is
intolerable. In evidence, ABSA presented no serious
evidence of this
nature. Consequently, the commissioner did not go wrong in
reinstating Chetty in the face of section 193(2)(b).
Order
The
application is dismissed with costs.
________________________________
Whitcher J
Judge
of the Labour Court of South Africa
APPEARANCES:
For
Applicant: Adv A Myburgh, SC, instructed by Norton Rose Fulbright
South Africa Inc
For
Third Respondent: Adv R Ungerer, instructed by Randles Attorneys
[1]
The commissioner makes a factual error here in
that one witness, Govender, did mention aggression in his initial
statement. The
import of this error is discussed below.
[2]
Myburgh and Bosch,
Reviews
in the Labour Courts
, Lexis Nexis,
2016
[3]
NUM and Another v CCMA and Others (2015) 36
ILJ 2038 (LAC)
at 17, see also
National Employers General Insurance Co
Ltd, v Jagers, 1984, (4) 437 (A) at 440 D-H
[4]
S v D
1995
(2) SACR 502 (C)
[5]
Gaga v Anglo Platinum Ltd
[2012]
3 BLLR 285 (LAC)
[6]
See
Moodley v Illovo
Gledhow and Others
(2004) 2 BLLR 150
(LC) at para 20
[7]
Head of Department of Education v Mofokeng
(2015) 1 BLLR 50 (LAC)
[8]
Bissoon v Lever Ponds (Pty) Ltd & another
(2003) 12 LC 1.8.1