PSA obo Rae v General Public Services Sectoral Bargaining Council and Others (JR755/14) [2017] ZALCJHB 410 (6 April 2017)

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[2017] ZALCJHB 410
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PSA obo Rae v General Public Services Sectoral Bargaining Council and Others (JR755/14) [2017] ZALCJHB 410 (6 April 2017)

THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
case
no: JR 755 / 14
In
the matter between:
PSA obo
ANDREW
RAE
Applicant
and
THE GENERAL
PUBLIC SERVICES SECTORAL
BARGAINING
COUNCIL
First
Respondent
M J MATLALA
N.O. (AS
ARBITRATOR)
Second
Respondent
THE MINISTER
OF INTERNATIONAL
RELATIONS AND
COOPERATION
Third
Respondent
Heard
:
14 September 2016
Delivered
:
6 April 2017
Summary:
Bargaining
council arbitration proceedings – Review of proceedings,
decisions and awards of arbitrators – Test for review
–
Section 145 of LRA – application of review test set out –
determinations of arbitrator compared with evidence
on record –
commissioner’s decision irregular and unsustainable –
award reviewed and set aside
Misconduct
– inconsistency – principles considered – dismissal
of employee contrary to requirement of consistency
– dismissal
unfair
Misconduct
– issue of appropriate sanction – principles considered –
progressive discipline justified –
dismissal inappropriate
sanction and unfair – dismissal of employee substantively
unfair
Practice and
procedure – award reviewed and set aside – appropriate
relief considered – Section 193(2) considered
–
exceptions do not apply – reinstatement awarded
Practice and
procedure – determination of back pay in the case of
reinstatement – principles considered – back
pay limited
JUDGMENT
SNYMAN, AJ
Introduction
[1]
If this was not an actual case that came
before this Court, one could be forgiven for believing it was a tale
coming straight out
of a Hollywood script – there is a diplomat
in Paris, an embassy function, followed by a night of partying and
drinking,
that ended in the body of a deceased young woman being
found in the apartment of the diplomat.  But it was real life,
with
the incident featuring in the foreign and local press, and
resulted in the diplomat losing his job and ending his career. This
tragic story then came before a bargaining council arbitrator to
decide the fairness of the dismissal of the diplomat.
[2]
The second respondent was the arbitrator
appointed by the General Public Service Sectoral Bargaining Council
(the first respondent)
to decide the fairness of the dismissal of Mr
Andrew Rae, the diplomat concerned and the individual applicant in
this matter.
As will be dealt with hereunder, most of the
factual matrix in this matter was common cause, and what the second
respondent was
called on to decide was whether dismissal of the
individual applicant was an appropriate sanction. The arbitration
commenced on
10 October 2013, continued over a number of days over
the next two months, and finally concluded on 18 December 2013.
[3]
In
an arbitration awarded dated 24 February 2014, which was handed down
on 7 March 2014, the second respondent upheld the dismissal
of the
individual applicant, concluding that dismissal was indeed a fair
sanction. It is this arbitration award that now forms
the subject
matter of the review application brought to the Labour Court by the
applicant, in terms of Section 145 of the Labour
Relations Act
[1]
(‘the LRA’).
[4]
The
applicant’s review application was filed on 15 April 2014,
which was 1(one) day outside the 6(six) weeks’ time limit
under
Section 145
[2]
,
within which to bring a review application.  The applicant
applied for condonation for such late review application, and
in an
order dated 8 June 2016, Van Niekerk J granted the application for
condonation and ordered that the applicant’s review
application
be set down for hearing on the merits thereof. The applicant’s
review application is therefore properly before
this Court for
determination, which I will now proceed doing, by first setting out
the applicable factual matrix.
The
relevant background
[5]
The individual applicant was a diplomat in
the employ of the third respondent, commencing employment in August
2007. On 14 February
2012, the individual applicant received his
first foreign posting to the South African Embassy in Paris, as First
Secretary of
the Director of the UNESCO desk. The individual
applicant was dismissed on 6 May 2013, on two charges of misconduct
relating to
what was in essence breaching the third respondent’s
rules and bringing the diplomatic service into disrepute.
[6]
The events giving rise to this matter
happened on 31 August and 1 September 2012. On the afternoon of 31
August 2012, a social event
was held at the Embassy. The individual
applicant attended the event where he had a few beers. At about
18h00, the individual applicant
and some of his friends left the
event at the Embassy for a night on the town, at a restaurant called
Tribecca, where they had
drinks until about 22h00. The individual
applicant’s friends then went to a housewarming party at
another apartment, but
the individual applicant decided not to join
them and left to his own apartment.
[7]
The individual applicant did not stay in
his own apartment for long.  He stated he was bored, and he
decided to go out again
and went to a night club called Le Standard,
fairly close to the apartment. The individual applicant found several
of his friends
at the club, and they continued drinking. In the
course of the night at the club, a French woman, one Victoria, joined
him and
his friends.  The party continued at the club until
about 03h00, when the individual applicant then invited five guests,
which
included his friends and Victoria, to his apartment for further
drinks. They continued drinking to 09h00 that morning, and the
individual applicant passed out at about 09h30.
[8]
The individual applicant awoke at about
19h00 that Saturday evening, 1 September 2012. He noticed Victoria
lying asleep in the spare
bedroom, and he did not know when she went
to sleep. Two of the other guests were also still in the apartment,
listening to music,
and waiting for the individual applicant to let
them out. When these two guests tried to wake Victoria, they were
unable to do
so as she was not breathing.
[9]
The paramedics were then summoned, who
unsuccessfully tried to revive Victoria, and pronounced her deceased
on the scene. The Police
were then summoned, and an investigation
then followed.  The official cause of death of Victoria was
found to be “pulmonary
oedema’, being excessive fluid on
the lungs.
[10]
The incident came to the attention of the
French press.  An article appeared in the Le Parisien on 3
September 2012.
It mentioned that a 26 year old woman was found
dead after a late night party, in the apartment of the First
Secretary.  The
article described the ‘diplomat’ as
having co-operated with the investigation, and a post mortem would
follow. The
Le Figaro published a similar article also on 3 September
2012.  A Metrofrance.com article followed on 5 September 2012,
and
added that a toxicology report showed drugs in the woman’s
system and she had died of pulmonary oedema. None of these articles

implicated the individual applicant in any wrongdoing or in fact
having been intoxicated. The local South African press also then

picked up on the story, with similar articles appearing in a number
of publications.
[11]
The third respondent has a code of conduct
in place that regulates the conduct of its overseas diplomats (‘the
Code’).
Clause C5.2 provides that an employee must act
responsibly as far as the use of alcoholic beverages are concerned.
Clause
4.5.2 of the Code provides that even if an employee is off
duty, the employee remains a public servant and as such must behave
responsibly so as to not embarrass the public service.
[12]
Takalani Netshitenshe (Netshitenzhe’),
the Ambassador: Budapest, was tasked to investigate the entire
matter. He interviewed
a variety of parties, conducted an in loco
inspection, and filed a formal report dated 15 October 2012.  He
found that there
was no evidence of any kind that the individual
applicant was involved in drug use or supplied any drugs to his
friends or received
drugs from them. He also did not find that the
individual applicant was responsible for the death of Victoria.
But Netshitenshe
did accept that the individual applicant behaved
irresponsibly, did breach the Code, and in bringing the guests to his
apartment
under the circumstances that he did he breached security.
Netshitenshe made a number of recommendations, which included that

disciplinary action be taken against the individual applicant, but
also that the third respondent needed to address what seemed
to be a
larger problem that existed with regard to conduct of diplomats
abroad, in the same context as the incident concerning
the individual
applicant.
[13]
The third respondent then decided to pursue
disciplinary charges against the individual applicant.  In a
charge sheet dated
7 December 2012, three charges were tabled against
the individual applicant. The first charge was that the individual
applicant
acted in an irresponsible manner insofar as the use of
alcohol was concerned and thus he violated clause C5.2 of the Code.

The second charge related to the conduct of the individual applicant
bringing the third respondent into disrepute, in that he excessively

consumed alcohol to the extent of becoming unconscious, which was
widely publicized in the media.  The third charge was a
gross
negligence charge, resulting from the fact he had passed out from
excessive alcohol consumption.
[14]
The disciplinary hearing then took place at
the Embassy in Paris from 18 to 20 February 2013. It was presided
over by another Ambassador,
being Ambassador George Johannes
(‘Johannes’). In a written finding dated 18 March 2013,
Johannes found the individual
applicant guilty of charges 1, 2 and 3
against him, and imposed the sanction that his security clearance be
revoked, and that he
be recalled back to the country and be dismissed
upon return. What is however apparent from the finding of Johannes is
that his
decision to dismiss was primarily focussed on the nature of
the misconduct itself, and paid very little attention to the issue of

an appropriate sanction
per se
.
[15]
The individual applicant appealed his
dismissal on 4 April 2013.  In a written finding dated 2 May
2013, the appeal chairperson
upheld the findings of guilty of the
individual applicant on the first and second charges, but overturned
the finding of guilty
on the third charge by concluding that gross
negligence had not been proven. The appeal chairperson also dealt
with the issue of
an appropriate sanction, and set aside the revoking
of the security clearance of the individual applicant, reinstating
it.
But the appeal chairperson upheld the sanction of the
recall of the individual applicant, followed by his dismissal.
The
finding was received by the individual applicant on 6 May 2013,
which was then the date of his dismissal.
[16]
The applicant then challenged the dismissal
of the individual applicant as an unfair dismissal dispute, by way of
a referral to
the first respondent on 24 May 2013, and, as stated
above, this dispute ultimately came before the second respondent for
arbitration.
The parties concluded a pre-arbitration minute in the
course of the arbitration proceedings. In particular, and in terms of
this
pre-arbitration minute, the individual applicant admitted guilt
to all the ‘elements’ of charges 1 and 2 against him,
and
all the second respondent was called on to decide was whether
dismissal was an appropriate sanction for his misconduct on these

charges.
[17]
Following the conclusion of the arbitration
proceedings, and in the arbitration award referred to above, the
second respondent upheld
the dismissal of the individual applicant as
being fair.  This is the conclusion that is challenged by the
applicant on review.
The
test for review
[18]
The
appropriate test for review is settled. In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[3]
Navsa
AJ held that the standards as contemplated by Section 33 of the
Constitution
[4]
are in essence to be blended into the review grounds in Section
145(2) of the LRA, and remarked that ‘
the
reasonableness standard should now suffuse s 145 of the LRA
’
.
The learned Judge held that the threshold test for the reasonableness
of an award was:
‘…
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?...
’
[5]
[19]
Pursuant
to the judgment in
Sidumo
,
and in every instance where the constitutionally suffused Section
145(2)(a)(ii)
[6]
is sought to be applied to substantiate a review application, any
failure or error of the arbitrator relied on, must lead to an

unreasonable outcome arrived at by the arbitrator, for it to be
reviewable. In my view therefore, what the applicant must show
to
exist in order to succeed with a review in this instance, is firstly
that there is a failure or error on the part of the arbitrator.
If
this cannot be shown to exist, that is the end of the matter. But
even if this failure or error is shown to exist, the applicant
must
then further show that the outcome arrived at by the arbitrator was
unreasonable. If the outcome arrived at is nonetheless
reasonable,
despite the existence of the error or failure, that would equally be
the end of the review application. In short, in
order for the review
to succeed, the error of failure must affect the reasonableness of
the outcome to the extent of rendering
it unreasonable.
In
Herholdt
v Nedbank Ltd and Another
[7]
the
Court said:
‘…
.
A result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that was before
the
arbitrator. Material errors of fact, as well as the weight and
relevance to be attached to the particular facts, are not in
and of
themselves sufficient for an award to be set aside, but are only of
consequence if their effect is to render the outcome
unreasonable.
’
[20]
As
to the application of the reasonableness consideration as articulated
in
Herholdt
,
the LAC in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[8]
said:
‘…
.
in a case such as the present, where a gross irregularity in the
proceedings is alleged, the enquiry is not confined to whether
the
arbitrator misconceived the nature of the proceedings, but extends to
whether the result was unreasonable, or put another way,
whether the
decision that the arbitrator arrived at is one that falls in a band
of decisions a reasonable decision maker could
come to on the
available material.
’
[21]
Accordingly,
the reasonableness consideration envisages a determination, based on
all the evidence and issues before the arbitrator,
as to whether the
outcome the arbitrator arrived at can nonetheless be sustained as a
reasonable outcome, even if it may be for
different reasons or on
different grounds.
[9]
This necessitates a consideration by the review court of the entire
record of the proceedings before the arbitrator, as well as
the
issues raised by the parties before the arbitrator, with the view to
establish whether this material can, or cannot, sustain
the outcome
arrived at by the arbitrator. In the end, it would only be if the
outcome arrived at by the arbitrator cannot be sustained
on any
grounds, based on that material, and the irregularity, failure or
error concerned is the only basis to sustain the outcome
the
arbitrator arrived at, then the review application would
succeed.
[10]
In
Anglo
Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others
[11]
it was held:
‘…
.
the reviewing court must consider the totality of evidence with a
view to determining whether the result is capable of justification.

Unless the evidence viewed as a whole causes the result to be
unreasonable, errors of fact and the like are of no consequence and

do not serve as a basis for a review.
’
[22]
Of
importance in this matter, considering the grounds of review raised
by the applicant, is the concept of an error of law, and
how this
kind of case is contemplated to be dealt with under the review test.
In line with the review test summarized above, the
mere existence of
an error of law would be insufficient to substantiate a successful
review application, unless that error of law
has the result of an
unreasonable outcome.  In
Head
of Department of Education v Mofokeng and Others
[12]
the Court held:
‘…
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, evidenced 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 enquiry, undertaken
the enquiry
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
enquiry or a decision
which no reasonable decision maker could reach on all the material
that was before him or her.
'
[23]
In
Democratic
Nursing Organisation of SA on behalf of Du Toit and Another v Western
Cape Department of Health and Others
[13]
it
was said:
‘
Since
the advent of the Constitution of the Republic of South Africa 1996
(the Constitution), the concept of review is sourced in
the
justifications provided for in the Constitution and, in particular,
that courts are given the power to review every error of
law provided
that it is material; that is that the error affects the outcome. …
’
[24]
In
Opperman
v Commission for Conciliation, Mediation and Arbitration and
Others
[14]
the Court specifically dealt with a situation where the applicant
sought to review and set aside an award of substantive fairness
on
the basis of an error of law, and in particular contending that the
arbitrator grossly misapplied the law pertaining to inconsistency.

The Court said:
[15]
‘
In
the case before me, the arbitrator committed an error of law by
referring to and then not following the dictum of Basson J in
Rennies.
But even if that in itself does not make the award reviewable, it led
to an unreasonable result. It must be reviewed and set aside
on that
basis.’
[25]
Therefore, the applicant, in relying on an
error of law on the part of the second respondent, would have to show
that this error
materially affected the outcome arrived at, rendering
it unreasonable.
[26]
Against the above principles and test, I
will now proceed to consider the applicant’s application to
review and set aside
the arbitration award of the second respondent.
Grounds
of review
[27]
The
applicant’s case and grounds for review must be made out in the
founding affidavit, and supplementary affidavit.
[16]
As was said
in
Northam
Platinum Ltd v Fganyago NO and Others
[17]
:
‘…
.
The basic principle is that a litigant is required to set out all the
material facts on which he or she relies in challenging
the
reasonableness or otherwise of the commissioner's award in his or her
founding affidavit’
.
[28]
In the founding affidavit, the applicant
raised a number of review grounds, which can all be summarized into
the following principal
grounds:
28.1
The second respondent failed to consider material evidence in
deciding whether dismissal was an appropriate sanction, considering

his failure to refer to any of this evidence in his award;
28.2
The second respondent failed to consider that the trust relationship
had not broken down, having regard to the fact that following
the
incident, the individual applicant was not suspended, and continued
to work for eight months in the same capacity and attended
to all his
duties and to his UNESCO portfolio;
28.3
The second respondent failed to apply the law correctly or at all
where it came to considering the issue of inconsistency as
raised in
the arbitration by the applicant;
28.4
The second respondent failed to consider the totality of
circumstances where it came to him deciding whether dismissal was
an
appropriate sanction.
[29]
In
the supplementary affidavit
[18]
,
the applicant in essence mostly elaborates on these same review
grounds as raised in the founding affidavit referred to above,
but
just providing further detail and embellishment to motivate these
principal review grounds.  The applicant however added
that the
manner in which the second respondent dealt with the issue of
inconsistency pertinently raised by the applicant, constituted
an
error of law which rendered the award reviewable.
[30]
I will now consider the applicant’s
review application based on these grounds of review.
Evaluation:
Dismissal as an appropriate sanction
[31]
From
the outset, I must confess that I have a number of difficulties with
the award of the second respondent, even as it stands.
In his
award, the second respondent records that neither in the arbitration
nor in the pre-arbitration minute did the applicant
contend that the
third respondent acted unfairly in imposing the sanction of
dismissal. Nothing can be further from the reality.
The
applicant specifically, in the pre-arbitration minute, and numerous
times in the opening address in the arbitration, disputed
that
dismissal was an appropriate sanction, and called on the second
respondent to decide whether the sanction of dismissal was
too harsh.
This would be an out and out fairness enquiry, even if it is not
specifically called such.
As
was said by Ngcobo J in
Sidumo
:
[19]
‘…
The
commissioner's starting-point is the employer's decision to dismiss.
The commissioner's task is not to ask what the appropriate
sanction
is but whether the employer's decision to dismiss is fair’
[32]
The second respondent in effect became
fixated on trying to find a label reading ‘unfairness’,
and then in not finding
it, he inappropriately narrowed the enquiry
he had to make.  The second respondent completely failed to
appreciate that a
case of dismissal being an inappropriate sanction
is synonymous with case of dismissal being unfair on the basis of the
sanction
of dismissal being unfair.
[33]
The
second respondent, in his award, refers to the judgment of
Sidumo
where the Constitutional Court dealt with the issue of an appropriate
sanction, but unfortunately the second respondent simply
does not
seem to appreciate what this judgment actually says.  The second
respondent completely missed the
ratio
decidendi
of the judgment in
Sidumo
.
In fact, the second respondent in his award only refers to the
judgment in
Sidumo
where reference was made therein to an earlier judgment in
Nampak
Corrugated Wadeville v Khoza
[20]
,
but the second respondent never dealt with ultimate conclusion
arrived at by the Court in
Sidumo
.
I am comfortable in concluding that the second respondent seemed
oblivious to all that he needed to consider in deciding
whether
dismissal was appropriate as specifically articulated in
Sidumo
.
[34]
How
should the second respondent, as arbitrator, then have decided the
issue of the appropriateness of the sanction of dismissal?
The
answer is given by Navsa AJ in
Sidumo
,
where the learned Judge said:
[21]
‘
In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or she
will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee's challenge
to the
dismissal. There are other factors that will require consideration.
For example, the harm caused by the employee's conduct,
whether
additional training and instruction may result in the employee not
repeating the misconduct, the effect of dismissal on
the employee and
his or her long-service record. This is not an exhaustive list.
’
[35]
Shortly
after the judgment in
Sidumo
was handed down, the
ratio
in that judgment was dealt with by the LAC in
Fidelity
Cash Management
[22]
,
where the Court held as follows:
‘
In
terms of the
Sidumo
judgment, the commissioner must –
(a)
take into account the totality of circumstances” (para 78);
(b)
consider the importance of the rule that had been breached”
(para 78);
(c)
consider the reason the employer imposed the sanction of dismissal,
as he or she must take into account the basis
of the employee's
challenge to the dismissal” (para 78);
(d)
consider
''the harm caused by the employee's conduct” (para 78);
(e)
consider ''whether additional training and instruction may result in
the employee not repeating the misconduct”;
(f)
consider
''the effect of dismissal on the employee” (para 78);
(g)
consider the
employee's service record.
The
Constitutional Court emphasized that this is not an exhaustive list.
The commissioner would also have to consider the Code of
Good
Practice: Dismissal and the relevant provisions of any applicable
statute including the Act.
’
[36]
Further
following on the judgment in
Sidumo
,
a number of other principles were crystalized out that would require
consideration in assessing whether the sanction of dismissal
is
fair.  The further principles are the issue of the breakdown of
the trust / employment relationship between the employer
and
employee, the existence of dishonesty, the possibility of progressive
discipline, the existence or not of remorse, the job
function and the
employer’s disciplinary code and procedure.
[23]
However, and in general terms, what requires consideration by an
arbitrator was articulated by Van Niekerk J in
Vodacom
(Pty) Ltd v Byrne NO and Others
[24]
as
follows:
‘…
the
determination of the fairness of a dismissal required a commissioner
to form a value judgment, one constrained by the fact that
fairness
requires the commissioner to have regard to the interests of both the
employer and the worker and to achieve a balanced
and equitable
assessment of the fairness of the sanction …’
And
in
Wasteman
Group v SA Municipal Workers Union and Others
[25]
Davis
JA said:
‘…
The
commissioner is required to come to an independent decision as to
whether the employer's decision was fair in the circumstances,

these circumstances being established by the factual matrix
confronting the commissioner. …
’
[37]
Therefore,
in terms of
Sidumo,
what
the second respondent had to do was to determine if the third
respondent as employer in dismissing the individual applicant
acted
fairly, and in doing so had to consider the totality of circumstances
with reference to all the factors referred to above,
as established
by the factual matrix before the second respondent as a whole.
The second respondent needed to analyse all
the evidence, apply this
analyses to all the requisite considerations identified above, and
come to a properly reasoned conclusion
as to whether dismissal was a
fair or an unfair sanction.  In
Theewaterskloof
Municipality v SA Local Government Bargaining Council (Western Cape
Division) and Others
[26]
the
Court said:
‘…
Various
components must be placed in the scales: an objective analysis of the
particular facts of the case; adequate regard to the
applicable
statutory and policy framework; and adequate regard to the pertinent
jurisprudence as developed by the courts. Only
then can a value
judgment, properly so called as a comparative balancing of competing
factors, be made by the commissioner, producing
as an end result an
impartial answer to the central question whether or not the dismissal
was fair. Reaching a value judgment in
relation to competing factors
will in many cases be fairly straightforward but in others it may be
helpful to conduct the comparison
process with reference to a common
question, being how the factor relates to the relevant features of
the employer's operational
requirements. A proper assessment of those
requirements underlies the determination of what is fair and at the
same time provides
an objective framework for a value to be placed on
one factor and another.
’
[38]
A
consideration of the second respondent’s award and the
reasoning contained therein leaves one with little doubt that he

never did any of the above, nor conducted the kind of evaluation and
assessment actually required of him.
In
Maepe
v Commission for Conciliation, Mediation and Arbitration and
Another
[27]
the
Court said:
‘
Although
a commissioner is required to give brief reasons for his or her award
in a dismissal dispute, he or she can be expected
to include in his
or her brief reasons those matters or factors which he or she took
into account which are of great significance
to or which are critical
to one or other of the issues he or she is called upon to decide.
While it is reasonable to expect a commissioner
to leave out of his
reasons for the award matters or factors that are of marginal
significance or relevance to the issues at hand,
his or her omission
in his or her reasons of a matter of great significance or relevance
to one or more of such issues can give
rise to an inference that he
or she did not take such matter or factor into account.’
[39]
As stated, and in finding that dismissal
was not too harsh a sanction, the second respondent in his award
relied only on a limited
number of reasons.  The second
respondent considered the nature of the third respondent’s
‘business’, so
to speak, which he described as being to
promote and uphold cooperation with the international fraternity
where image is of paramount
importance, and where negative publicity
would harm this image.  The second respondent also considered
that the offences were
serious, and because of the serious nature of
these offences this would make further employment intolerable.
That is the
sum total of the factors relied upon by the second
respondent.
[40]
Applying
the above dictum in
Maepe
,
it would have been necessary for the second respondent to set out all
his considerations on an appropriate sanction in his award,
and it is
therefore clear that the second respondent has failed to consider
most of the factors he was required to consider, and
certainly had no
regard to the factual matrix as a whole. This failure is tantamount
to the second respondent not discharging the
duty that rested upon
him to decide whether dismissal was a fair sanction. This would be
the kind of gross irregularity contemplated
by the review test I have
articulated above.  In
Solari
v Nedbank Ltd and Others
[28]
the
Court said the following, specifically referring to the conduct of a
commissioner when deciding if dismissal was an appropriate
sanction:
‘…
it
is clear on the totality of the evidence before the commissioner that
he did not properly consider all the evidence and therefore
arrived
at a conclusion that a reasonable decision maker could not reach then
the award ought to be set aside. The same will apply
when the
commissioner makes certain inferences from the proven facts that are
totally out of sync with those facts. The inference
reached without a
proper consideration of the proven facts would be an unreasonable
decision or a decision which a reasonable decision
maker could not
reach’
[41]
With the manner of determination of the
issue of dismissal as a fair sanction by the second respondent
constituting a gross irregularity,
the second part of the review test
nonetheless necessitates a determination as to whether the second
respondent’s conclusion
that dismissal was an appropriate
sanction is a reasonable outcome, even if for other reasons or on
other grounds.  This determination
requires that I must now
consider the totality of facts and circumstances, and all of the
sanction factors identified above, in
order to decide whether the
dismissal of the individual applicant was nonetheless a fair
sanction.
I
will commence with a consideration of the nature of the misconduct.
I cannot help but think that its seriousness was exaggerated,
because
of the spectacle that followed. It must always be borne in mind that
the individual applicant cannot be held accountable
for the death of
Victoria. He was also never charged with any misconduct relating to
this. What the third respondent did was to
try and infuse the
unfortunate death of Victoria and all the circumstances relating
thereto into the misconduct charges against
the applicant to try to
give it a different flavour.  But the second respondent should
have seen the charges for what they
were, being that the individual
applicant breached the rule where it came to excessive consumption of
alcohol, which in itself,
and for the reasons to follow, is not
serious enough to justify a sanction of dismissal for a first
offence. I accept that if it
was proven that the individual
applicant’s conduct directly or indirectly caused, or
contributed to, the death of Victoria,
such as for example that he
gave her drugs or spurred her on to drink more than she should have,
the situation may well have been
different.  However, no such
evidence existed. In simple terms, the evidence shows that all the
applicant did was drink too
much and pass out. It shows further that
his only link to Victoria was that she was there in his apartment at
his invitation, and
where she was found after she died.
[42]
I can understand the reason for this rule
as contained in the Code. The fact is that the consumption of alcohol
is not prohibited
even where it comes to attending official embassy
functions. The rule is clearly aimed at preventing the excessive
consumption
of alcohol by diplomats who represent the country, in
order for them not to make a spectacle of themselves. This, thereby,
prevents
them from embarrassing the foreign services and country,
which unfortunately is a situation which often accompanies the
excessive
consumption of alcohol.
[43]
I
believe that it was highly likely that if it was not for a dead body
in the individual applicant’s apartment, the fact that
he went
home after a night of drinking and passed out on his bed would not
have led to his dismissal. As harsh as this may sound,
the dead body
in his apartment had nothing to do with the misconduct of his
excessive drinking and passing out, even though this
consideration
may be relevant in another context, which I will deal with later. The
second respondent’s acceptance that just
because the misconduct
existed a dismissal was warranted, is simply not an appropriate and
justified conclusion.  In
Dikobe
v Mouton NO and Others
[29]
the Court held:
‘
It
may be mentioned that the award is bereft of any consideration of the
appropriate sanction, it seemingly being that the arbitrator
took it
for granted that guilt on the terms he found, warranted dismissal.
That approach is, in principle, wrong …
’
In
the end, I am not satisfied that the misconduct in this case was
serious enough to,
per se,
necessitate the dismissal of the individual applicant.
[44]
Where
there is some level of tolerance for alcohol consumption
per
se
,
which seems to be part and parcel of life in the diplomatic core, the
surpassing by an employee of that level of tolerance requires

progressive discipline before dismissal.
[30]
This is clearly an entirely different situation to those cases where
an employee works in a dangerous working environment
and where any
consumption of alcohol would be a danger to the employee and his or
her fellow employees, or would be even prohibited
by law (such as the
mining industry), both being cases where a zero tolerance approach is
essential.
[31]
In the kind of cases where a level of tolerance is permitted, it does
not mean that employees escape being held accountable,
if they exceed
this level of tolerance.  But what it does mean, is that the
objective of discipline in such a case would have
to be to impress
upon the employee that he or she has transgressed and that this is
considered to be misconduct, and that through
the application of
discipline it is ensured that this transgression does not happen
again. The employee, who ventured out of the
employment fold, so to
speak, is brought back into the fold, but with conditions attached to
resist a repetition of the misconduct.
I
n
Timothy
v Nampak Corrugated Containers (Pty) Ltd
[32]
the
Court said:
‘…
Progressive
sanctions were designed to bring the employee back into the fold, so
as to ensure, by virtue of the particular sanction,
that faced with
the same situation again, an employee would resist the commission of
the wrongdoing upon which act the sanction
was imposed. The idea of a
progressive sanction is to ensure that an employee can be
reintegrated into the embrace of the employer's
organization, in
circumstances where the employment relationship can be restored to
that which pertained prior to the misconduct.
…’
[45]
In my view, a conspectus of the evidence
shows that the individual applicant had a singular lapse of judgment,
considering that
his conduct on the day was uncharacteristic. He
should have known better than to continue to revel the night away
when he was already
approaching intoxication much earlier in the
evening. But there was no evidence or indication that he was a
habitual miscreant
where it came to these kind of situations. This
kind of singular error in judgment cries out for progressive
discipline, which
would more than likely make the individual
applicant a very cautious employee where it comes to possible
excessive alcohol consumption
in the future. That kind of result is
what progressive discipline is all about.
[46]
A
final written warning to the individual applicant for his breach of
the Code in respect of his conduct on 31 August and 1 September
2012
would have impressed upon him the error of his ways, and would have
made it clear that any such future transgression would
result in the
loss of his job.  In
Gcwensha
v Commission for Conciliation, Mediation and Arbitration and
Others
[33]
the Court held:
‘
I
accept that the purpose of a warning is to impress upon the employee
the seriousness of his actions as well as the possible future

consequences which might ensue if he misbehaves again, namely that
a repetition of misconduct could lead to his dismissal
.’
[47]
The
next consideration is the harm caused by the individual applicant’s
misconduct. It is also in this context that the true
reason why the
third respondent dismissed the individual applicant becomes apparent.
This harm and this reason is inextricably
tied to one crucial
consideration, being image.   The fact that Victoria was
found deceased in a bed in the individual
applicant’s apartment
after a night of drinking resulting in paramedics being called, the
police being called, and the press
reporting on the incident,
tarnished and prejudiced the image of the foreign services. I accept
that there is merit in such a contention.
But once again, one
is left with the compelling question – would the situation have
had the same impetus if some French reporter
published an article
that the individual applicant, as a senior diplomat, drank too much
and passed out on his bed in his apartment.
I doubt such a situation
would even make the papers, a view actually shared by the initial
investigator, Netshitenshe. And because
no misconduct charges were
levelled at the individual applicant relating to the death of
Victoria, it has to be asked whether the
conduct of the third
respondent in dismissing the individual applicant was not some knee
jerk reaction to the incident making the
newspapers and punishing the
individual applicant for it, rather than a reaction to the misconduct
itself.
[34]
[48]
It is in the abovementioned context that an
important issue pertinently raised by the applicant, and never
considered by the second
respondent, comes into play. This issue is
that even after the incident, the individual applicant continued to
work, unabated,
for some eight months, within the same foreign
services community, interacting with the same diplomats, and
fulfilling the exact
same functions, without any hint of protest from
anyone.  There certainly was no evidence of any protest from the
French Government
about the continued presence of the individual
applicant at the Embassy.  If anything, the evidence seemed to
show sympathy
from the individual applicant’s peers and
colleagues for what had happened to him, with the consensus view
being what happened
to the individual applicant could happen to
anyone. The individual applicant was still described, despite the
incident, as being
a professional, hard working and dedicated
diplomat.
[49]
In my view, the contentions of the third
respondent’s image being tarnished to the extent of
necessitating the dismissal of
the individual applicant is
contrived.  Yes, there certainly was harm to the image and
reputation of the third respondent,
but it was not the kind of harm
that an apology, time and progressive discipline could not completely
fix. As opposed to this,
the individual applicant had just started
building a proper career in the foreign services, with Paris being
his first foreign
deployment, and it seems to me he was good at his
job. To deprive him of the opportunity to fulfil this career
objective, considering
what had actually happened, is unduly harsh.
[50]
Where
one next takes the individual applicant’s personal
circumstances into account, he had studied to join the foreign
services.
He had some five years’ service and an unblemished
disciplinary record, which works in his favour when deciding whether
dismissal
is appropriate.
[35]
It is also not lost on me, as it seemed to have been the case with
the second respondent, that during the eight month period
following
the incident the individual applicant received two favourable
performance appraisals and was allocated projects.
As touched
on above, and save for this one error of judgment, there is no
indication of the individual applicant being a troublesome
employee.
In short, there is nothing in the personal circumstances of the
individual applicant which could indicate that progressive
discipline
would not work.
[51]
In the answering affidavit in the review
application, the third respondent tried to make out some or other
case of dishonesty against
the individual applicant.  In my
view, the third respondent did so because it must have appreciated
the difficulties it was
facing in substantiating the dismissal of the
individual applicant as being fair. This alleged case of dishonesty
related to the
individual applicant allegedly lying when he said he
called the Acting Ambassador about the incident before he allowed the
police
into his apartment, that he changed his version about drug use
in his apartment when the incident occurred, and did not accept
responsibility for the death of Victoria.  This case of
dishonesty is nothing but an artificial creation. The individual
applicant
was never charged with any dishonesty offence. The conduct
of the individual applicant following the incident is not dishonest.

The individual applicant never misled anyone, and always fully
embraced what happened. To even label the individual applicant to
be
dishonest is disingenuous. The matter at hand has nothing to do with
dishonesty.
[52]
There was no evidence of any disciplinary
code or rule in the third respondent necessitating and prescribing
dismissal for the misconduct
the individual applicant had been found
guilty of. This means that dismissal was never a prescribed
imperative for the misconduct.
In fact, the disciplinary code
(clause 2.1) provides that discipline is a corrective measure, and
not a punitive one, and should
always be applied in a prompt, fair,
consistent and progressive manner (clause 2.2).
[53]
This
brings me to the next consideration, being that of remorse. The fact
is that the individual applicant never denied his wrongdoing.
He
conceded that he violated the Code, and his conduct did harm the
image and reputation of the third respondent. He fully admitted
all
the facts relating to the incident.  Even at the arbitration,
the individual applicant conceded his guilt on the misconduct,
and
sought to only challenge dismissal as an appropriate sanction.
In short, the individual applicant never disputed what
he did, and
that it was wrong.  All he said in defence is that he should not
be dismissed for it.  In
Absa
Bank Ltd v Naidu and Others
[36]
the Court held as follows:
‘
Obviously,
the fact of a guilty plea per se or mere verbal expression of remorse
is not necessarily a demonstration of genuine contrition.
It could be
nothing more than shedding crocodile tears. Therefore, the crucial
question is whether it could be said that Ms Naidu's
utterances
empirically and objectively translated into real and genuine remorse.
In
S
v Matyityi
,
the Supreme Court of Appeal remarked as follows on this issue:
'There
is, moreover, a chasm between regret and remorse. Many accused
persons might well regret their conduct, but that does not
without
more translate to genuine remorse. Remorse is a gnawing pain of
conscience for the plight of another. Thus genuine contrition
can
only come from an appreciation and acknowledgement of the extent of
one's error. Whether the offender is sincerely remorseful,
and not
simply feeling sorry for himself or herself at having been caught, is
a factual question. It is to the surrounding actions
of the accused,
rather than what he says in court, that one should rather look. In
order for the remorse to be a valid consideration,
the penitence must
be sincere and the accused must take the court fully into his or her
confidence. Until and unless that happens,
the genuineness of the
contrition alleged to exist cannot be determined. After all, before a
court can find that an accused person
is genuinely remorseful, it
needs to have a proper appreciation of, inter alia: what motivated
the accused to commit the deed;
what has since provoked his or her
change of heart; and whether he or she does indeed have a true
appreciation of the consequences
of those actions.’
’
Considering
the evidence on record, I do not believe the individual applicant was
shedding crocodile tears having been caught out
transgressing the
Code.  I accept that he was genuinely sorry for what happened,
and the harm it caused to the image of the
third respondent. The
evidence showed that he was just as embarrassed because of the events
as any embarrassment which was caused
to the third respondent. The
individual applicant played open cards about all that happened and
never shied away from his responsibility
in this regard. He pleaded
for forgiveness. His testimony was that he doubled his efforts to
make up for the mistake and to restore
any trust lost in him.
Following what was fairly gruelling and extensive cross-examination,
the individual applicant in fact
said ‘
Yes,
there is no one to blame other than myself
’
.
In line with the dictum in
Naidu
referred to above, this behaviour of the individual applicant is
consistent with someone who was genuine remorseful for the wrong
he
had done.
[54]
I
n
De
Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
[37]
the
Court held:
‘…
Acknowledgment
of wrong doing is the first step towards rehabilitation. In the
absence of a re-commitment to the employer's workplace
values, an
employee cannot hope to re-establish the trust which he himself has
broken.
’
The
conduct of the individual applicant, in my view, is consistent with
an employee that seeks rehabilitation, and would and did
re-commit
himself to the values of the third respondent. I am satisfied that he
showed genuine remorse.
[55]
This
then only leaves the issue of the break down in the trust
relationship for consideration. It is true that Ambassador Tebogo

Seokolo (‘Seokolo’), who testified for the third
respondent, testified that the employment relationship had been
destroyed.
Seokolo was the Chief Director: Western Europe, and
overall responsible for the Embassy in which the individual applicant

was stationed.  But his testimony was founded more on general
policy considerations, and his own views following him being
apprised
of the matter and what had happened.  As the applicant properly
pointed out, the individual applicant did not report
to Seokolo, and
did not work with him. In
Edcon
Ltd v Pillemer NO and Others
[38]
the Court held as follows concerning what evidence must be
considered, so as to establish whether there was a break down in the

employment relationship:
‘…
It
is to Naidoo's testimony, as Edcon's sole witness in the arbitration,
as well as the documentary evidence referred to above,
that one must
look to see if indeed there was evidence showing that Reddy's conduct
had destroyed the trust relationship between
her and Edcon. Naidoo's
testimony in the arbitration was mainly to recount the investigative
history of the matter. He also testified
that Edcon was intolerant
towards dishonesty and that employees were generally dismissed if
they committed dishonest acts. This,
he said, was one of Edcon's core
values. As already mentioned Naidoo was the investigator of Reddy's
misconduct and fielded some
of her lies. It was at his
recommendation, as investigator, that Reddy was suspended and
eventually disciplined. What becomes immediately
apparent is that
Naidoo's evidence did not, and could not, deal with the impact of
Reddy's conduct on the trust relationship. Neither
did Naidoo testify
that Reddy's conduct had destroyed the trust relationship. This was
the domain of those managers to whom Reddy
reported. They are the
persons who could shed light on the issue. None testified.
’
[56]
The
individual applicant, as First Secretary, reported directly to the
Director of the UNESCO desk, being Marthinus Van Schalkwyk
(‘Van
Schalkwyk’).  Van Schalkwyk testified that what the
individual applicant in this instance did not harm the
employment
relationship. Van Schalkwyk testified that the misconduct of the
individual applicant did not have an effect in respect
of his UNESCO
duties, and that even after the incident, the individual applicant
was directly involved in two major projects. He
said there was no
problem with the relationship with other diplomats, and he still
considered the individual applicant to be trustworthy
and reliable.
Being the individual applicant’s direct superior, and the
person with whom the individual applicant actually
directly worked,
Van Schalkwyk was in the best position to convey how the individual
applicant’s transgression may have compromised
the employment
relationship.  Also, the evidence was that the Ambassador at the
Embassy in Paris had no difficulty with the
trust relationship with
the individual applicant.  In
Edcon
[39]
,
the Court further held:
‘…
The
gravamen of Edcon's case against Reddy was that her conduct breached
the trust relationship. Someone in management and who had
dealings
with Reddy in the employment setup, as already alluded to, was
required to tell Pillemer in what respects Reddy's conduct
breached
the trust relationship. All we know is that Reddy was employed as a
quality control auditor; no evidence was adduced to
identify the
nature and scope of her duties, her place in the hierarchy, the
importance of trust in the position that she held
or in the
performance of her work, or the adverse effects, either direct or
indirect, on Edcon's operations because of her retention,
eg because
of precedent or example to others.
’
[57]
The testimony and views of Van Schalkwyk is
substantiated by the fact that the individual applicant continued to
work for eight
months fulfilling the exact same functions and duties,
and having the same responsibilities, and was never suspended.
I find
it inconceivable that it can be legitimately suggested that
because the individual applicant drank too much and passed out in his

apartment, this had destroyed the trust relationship, especially
considering that he thereafter continued to do the same work for

eight months without any inkling of a problem.  Added to this,
the French government never asked that the individual applicant
be
removed. I cannot accept that there was a complete destruction of the
trust relationship in this case of the kind that would
compel
dismissal.
[58]
However,
and in any event, even if one should accept the testimony of Seokolo
for the third respondent that the trust relationship
had been
compromised, it does not mean that dismissal follows
per
se
.
As said in
Woolworths
(Pty) Ltd v Mabija and Others
[40]
:
‘…
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.
’
[59]
In
summary, the totality of circumstances, considered in the context of
a balanced evaluation so as to be fair to both parties,
convinces me
that the dismissal as a sanction, in the case of the individual
applicant, was unfair.  In arriving at this conclusion,
I
consider that: (1) the gravity of the misconduct was not sufficiently
serious to justify dismissal
per
se
;
(2) the application of progressive discipline is viable to remedy the
misconduct and avoid a repetition of it in the future; (3)
the
personal circumstances and disciplinary record of the individual
applicant mitigate against dismissal; (4) the individual applicant

has shown the requisite genuine remorse for his misconduct; (5) there
exists no regulatory provisions prescribing dismissal; (6)
any harm
to the third respondent resulting from the misconduct is easily
remediable, and pales by comparison to the harm to the
individual
applicant; (7) the trust relationship cannot be seen to have
completely broken down; and (8) the reason why the individual

applicant was dismissed was rather in reaction to publicity that a
real reaction to the nature of the misconduct the individual

applicant committed.  In the end, the continued employment of
the individual applicant posed no meaningful risk to the third

respondent, and dismissing the individual applicant in this case was
more of an expression of outrage than real risk management.
As
said in
De
Beers
[41]
:
'
A
dismissal is not an expression of moral outrage; much less is it an
act of vengeance. It is, or should be, a sensible operational

response to risk management in the particular enterprise. …’
[60]
My conclusions as set out above serve to
illustrate, in the context of the second part of the review test,
that the outcome arrived
at by the second respondent cannot be
considered to be a reasonable outcome, on any grounds.  The
proper factual matrix and
balanced consideration of the sanction
principles can only result in a conclusion that the individual
applicant’s dismissal
was too harsh, inappropriate as a
sanction, and thus unfair. The second respondent’s
determination to the contrary is not
a reasonable outcome. In the
end, a final written warning issued to the individual applicant for
his misconduct would have sufficed,
and this could be the only
reasonable outcome that could have been arrived at.
Evaluation:
the issue of inconsistency
[61]
The
next issue to be dealt with is the applicant’s inconsistency
challenge.  Again, I must point out that the manner
in which the
second respondent dealt with this issue left much to be desired.
The second respondent records in his award
that there is nothing in
the pre-arbitration minute that makes ‘provision’ for an
inconsistency challenge, and as such,
he would not consider it.
In my view, this reasoning is a clear indication that the second
respondent simply does not understand
the nature of an inconsistency
challenge.  As said in
Naidu
[42]
:
‘
It
is trite that the concept of parity, in the juristic sense, denotes a
sense of fairness and equality before the law, which are
fundamental
pillars of the administration of justice …
’
[62]
Where
it comes to inconsistency, and should this consideration find
application in a particular case, it can serve to contradict
the
fairness of a dismissal in two different contexts. This is
illustrated by the following dictum from the judgment in
Minister
of Correctional Services v Mthembu NO and Others
[43]
:
‘
The
consideration of consistency of equality of treatment (the so-called
parity principle) is an element of disciplinary fairness
…
When an employer has in the past, as a matter of practice, not
dismissed employees or imposed a specific sanction for
contravention
of a specific disciplinary rule, unfairness flows from the employee's
state of mind, ie the employees concerned were
unaware that they
would be dismissed for the offence in question. When two or more
employees engaged in the same or similar conduct
at more or less the
same time but only one or some of them are disciplined or where
different penalties are imposed, unfairness
flows from the principle
that like cases should, in fairness, be treated alike.
’
[63]
Firstly,
inconsistency can serve as a possible defence to the existence of
misconduct in itself.  In other words, it serves
as basis to
acquit the employee of the misconduct with which he or she has been
charged. This would be the case, for example, where
an employee is
charged for contravening a rule, but as a result of practice over
time in the past, this rule has been consistently
not followed and
applied by the employer. If an employee in such circumstances is then
charged with breaching such a rule, as a
basis for a misconduct
charge, then inconsistency as a consideration would dictate that the
application of the rule itself has
been negated, resulting in a
conclusion that no valid and binding rule exists that could be
considered to have been breached, and
thus there is no misconduct.
Another example would be where a number of employees commit the same
misconduct, but the employer
then arbitrarily selects some of them to
be disciplined, leaving the other transgressors unaffected.
[44]
As said in
Chemical
Energy Paper Printing Wood and Allied Workers Union and Others v
Metrofile (Pty) Ltd
[45]
:
‘…
Our
law requires that employees who have committed similar misconduct
should not be treated differentially. …
’
[64]
The
second context is where inconsistency is raised as a basis to
challenge the fairness of the sanction of dismissal.
[46]
In this instance, there would be no issue that what the employee was
charged with indeed validly and properly constitutes
misconduct, of
which the employee is guilty, but the issue would be that the
dismissal of the employee for such misconduct would
be inconsistent
with the sanction imposed by the employer for similar and related
misconduct, in the past, in respect of other
employees.  In
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
[47]
,
the Court, in this context, said:
‘
The
courts have distinguished two forms of inconsistency - historical and
contemporaneous inconsistency. The former requires that
an employer
apply the penalty of dismissal consistently with the way in which the
penalty has been applied to other employees in
the past; the latter
requires that the penalty be applied consistently as between two or
more employees who commit the same misconduct.
A claim of
inconsistency (in either historical or contemporaneous terms) must
satisfy a subjective element - an inconsistency challenge
will fail
where the employer did not know of the misconduct allegedly committed
by the employee used as a comparator (see, for
example, Gcwensha v
CCMA & others
[2006] 3 BLLR 234
(LAC) at paras 37-38). The
objective element of the test to be applied is a comparator in the
form of a similarly circumstanced
employee subjected to different
treatment, usually in the form of a disciplinary penalty less severe
than that imposed on the claimant
’
[65]
Where
instances of inconsistency is raised as a defence to dismissal as an
appropriate sanction, this would form part of the value
judgment that
must be exercised in the course of considering all of the sanction
principles discussed above, and is not decisive
on its own.
[48]
This
has to mean that it is certainly part and parcel of the totality of
circumstances when deciding whether dismissal is appropriate,
and
this was the very issue placed before the second respondent to decide
in terms of the pre-arbitration minute.
[66]
Therefore, and having regard to the above,
the second respondent’s conclusion that inconsistency has not
been raised by the
applicant in the arbitration is patently wrong,
and constitutes a gross error of law. The fact is that inconsistency
was raised
in the context of challenging dismissal as an appropriate
sanction. As illustrated above, this is a proper context within which

such a challenge could apply.
[67]
But
further, and to compound matters, the applicant, at the outset of the
arbitration, made it clear that it would raise inconsistency.
The
representative of the applicant in the arbitration, in the course of
the opening address, said: ‘
With
the harshness of the sanction, it will definitely also refer to
consistency.
’
This
statement was never contradicted by the third respondent’s
representative.  This meant that the applicant was entitled
to
accept that inconsistency was properly in issue as part and parcel of
the sanction of dismissal being inappropriate.
[49]
The conduct of raising this at the start of the arbitration was
fully in line with the following
dictum
in National Union of Mineworkers on behalf of
Botsane
v Anglo Platinum Mine (Rustenburg Section)
[50]
where the Court held:
‘
Moreover,
as a matter of practice, a party, usually the aggrieved employee, who
believes that a case for inconsistency can be argued,
ought, at the
outset of proceedings, to aver such an issue openly and unequivocally
so that the employer is put on proper and fair
terms to address it.
…
’
[68]
By
refusing to consider the applicant’s inconsistency challenge,
the second respondent in effect negated a critical consideration
he
was obliged to consider, and this in my view would certainly have a
direct and material impact on the outcome of this matter,
rendering
it unreasonable.  In
Network
Field Marketing (Pty) Ltd v Mngezana No and Others
[51]
the
Court said:
‘…
.
By excluding the applicant's evidence from serious consideration on
this unwarranted basis, the arbitrator effectively denied
the
applicant a fair hearing which amounts to misconduct by the
arbitrator in relation to his duties ….’
[69]
It
is now settled that in the case of an inconsistency challenge, the
burden is on the employee party to produce sufficient evidence
before
the arbitrator to substantiate such a challenge. This evidence must
be sufficient to the extent that the employer is able
to identify the
elements of the challenge, in particular to which other employees it
may relate and what the facts are that substantiate
the challenge.
The employer must be placed in a position so as to competently be
able to present a defence thereto.  In
Comed
Health CC v National Bargaining Council for the Chemical Industry and
Others
[52]
the Court said:
‘
It
is trite that the employee who seeks to rely on the parity principle
as an aspect of challenging the fairness of his or her dismissal
has
the duty to put sufficient information before the employer to afford
it (the employer) the opportunity to respond effectively
to the
allegation that it applied discipline in an inconsistent manner. One
of the essential pieces of information which the employee
who alleges
inconsistency has to put forward concerns the details of the
employees who he or she alleges have received preferential
treatment
in relation to the discipline that the employer may have meted out.’
[70]
The
point in the end therefore is that the second respondent’s
approach to the inconsistency challenge of the applicant, as

reflected in his award, is unsustainable. The second respondent
needed to consider the inconsistency challenge, and in not doing
so,
committed a gross and reviewable irregularity.  The second
respondent, in refusing to allow the applicant an opportunity
to
present this challenge and present the requisite evidence in this
regard, as it was required to do, deprived the applicant a
fair
ventilation of the issue. The failure of the second respondent to
even consider inconsistency means that this Court is now
required to
consider it, to establish whether there was actual merit in that
challenge.
[53]
[71]
Turning next to the substance of the
inconsistency challenge of the applicant, it is in essence founded on
a complaint that other
diplomats committed misconduct that featured
in the press and similarly caused harm and prejudice to the good name
and reputation
of the foreign services, but these diplomats were not
dismissed. The inconsistency challenge is thus not raised as a
defence to
the misconduct or breach of the Code committed by the
individual applicant, but aimed at the issue of the reaction of the
third
respondent to reputational damage caused by the publication of
the misconduct of diplomats in the press. The fact is that it was
an
important part of the third respondent’s case where it came to
justifying the dismissal of the individual applicant that
his
misconduct was indeed published in the press.
[72]
What the applicant sought to introduce into
evidence was a number of newspaper articles, reporting on misconduct
by diplomats, in
instances where these diplomats were not dismissed
despite these articles. I will shortly set out these instances, in
respect of
which the press articles were sought to the discovered by
the applicant. In the case of one Bruce Koloane, he was the Chief of
State Protocol, who authorized the landing of the private jet of the
Gupta family at the Waterkloof Airforce base. This was widely

publicized, and Koloane also pleaded guilty to the misconduct, but
was not dismissed.  Next, there was the case of the Consul

General to Shanghai, Lassy Chiwayo (‘Chiwayo’) who was
found walking naked in the street in Shanghai, which was again
widely
reported.  Chiwayo was recalled, but was not dismissed. The
second in charge of the Embassy in Harare, Zimbabwe, Mlulami
Singapi
(‘Singapi’), assaulted a female staffer in the Embassy.
This was also reported in some detail in the press,
but Singapi was
not dismissed.  Jerome Barnes, a senior foreign diplomat in
London, was found guilty of indecent assault of
an SAA cabin
attendant, which incident was reported in the press, but he retained
his position.  Mpendulo Khumalo (‘Khumalo’),
a
senior consulate official in Los Angeles, United States, assaulted
his wife, was questioned by police and investigated, and this
was
reported in the Los Angeles Times.  Khumalo was not dismissed.
The comparisons to the case sought to be made out by the
third
respondent, in justifying the dismissal of individual applicant, are
clear.
[73]
The
Court in
Irvin
and Johnson Ltd,
[54]
aptly
determined the principles applicable to inconsistency, as follows:
‘…
Consistency
is simply an element of disciplinary fairness …. Every
employee must be measured by the same standards ….
Discipline
must not be capricious. It is really the perception of bias inherent
in selective discipline which makes it unfair.
Where, however, one is
faced with a large number of offending employees, the best that one
can hope for is reasonable consistency.
Some inconsistency is the
price to be paid for flexibility, which requires the exercise of a
discretion in each individual case.
If a chairperson conscientiously
and honestly, but incorrectly, exercses his or her discretion in a
particular case in a particular
way, it would not mean that there was
unfairness towards the other employees. It would mean no more than
that his or her assessment
of the gravity of the disciplinary offence
was wrong. It cannot be fair that other employees profit from that
kind of wrong decision.
In a case of a plurality of dismissals, a
wrong decision can only be unfair if it is capricious, or induced by
improper motives
or, worse, by a discriminating management policy....
Even then I dare say that it might not be so unfair as to undo the
outcome
of other disciplinary enquiries. If, for example, one member
of a group of employees who committed a serious offence against the

employer is, for improper motives, not dismissed, it would not, in my
view, necessarily mean that the other miscreants should escape.
…
’
[74]
In
my view, the
ratio
in the judgment in
Irvin
and Johnson
indicates
that the following considerations apply to the determination of the
issue of inconsistency: (1) Employees must be measured
against the
same standards (like for like comparison); (2) Did the chairperson of
the disciplinary enquiry
conscientiously
and honestly determine the misconduct;
(3)
The decision by the employer not to dismiss other employees involved
in the same misconduct must not be capricious, or induced
by improper
motives or by a discriminating management policy (in other words this
conduct must be bona fide)
[55]
;
and (4) A value judgment must always be exercised
[56]
.
[75]
In
general, inconsistency as a consideration is intended to protect
employees against arbitrary conduct by the employer. Objective

difference in circumstances is thus an important consideration.
In
Southern
Sun
[57]
it
was said:
‘…
An
inconsistency challenge will fail where the employer is able to
differentiate between employees who have committed similar
transgressions
on the basis of inter alia differences in personal
circumstances, the severity of the misconduct or on the basis of
other material
factors …
’
[76]
Considering the facts
in
casu
, the individual applicant has a
legitimate cause of complaint where it comes to inconsistency.
Applying the principles
relating to inconsistency to the facts, I am
satisfied that the chairperson of the disciplinary hearing, as well
as the appeal
chairperson, properly determined the misconduct of the
individual applicant, and there is thus no problem in this respect.
But
that being said, a like for like comparison leaves the third
respondent exposed. In this case, it is not about comparing the
content
of nature of the act of misconduct on a like for like basis.
It is about what was reported in the press about the misconduct
of
employees in the past, and then how the third respondent reacted to
this.  In short, the applicable like for like comparison
is
about whether the content of the reported article, as it stands,
would cause embarrassment to the third respondent and bring
its good
name into disrepute, and what the third respondent then did about it
vis-à-vis the errant employee.
[77]
Comparing the articles published about the
transgression of the individual applicant to all the other articles
referred to above
as contained in the bundle of documents, there is
little basis for distinction where it comes to the possible
embarrassment and
the harm to the reputation of the third respondent,
all these articles would or could cause.  It can hardly be said
that an
article about the consulate general being caught walking
naked down in the street in Singapore would be less embarrassing and
cause
less harm to the third respondent’s reputation, than an
article about the individual applicant having a party in his own
apartment, with one of his guests turning up deceased due to no fault
of his own.  Similarly, articles about senior diplomats

assaulting fellow staff or family members, and indecently assaulting
a cabin attendant on an aircraft, would certainly not be less

embarrassing and cause lesser reputational harm, than the articles
about the individual applicant. Finally, not much need to be
said
about the reputational damage caused by the articles relating to the
Gupta plane landing at Waterkloof air force base. Despite
the above
clear similarities, the individual applicant was the only one
dismissed.  Thus, measuring employees against the
same
standards,
in casu
,
would bring inconsistency into play.
[78]
Next, is the decision to dismiss the
individual applicant and not others, tantamount to arbitrary
behaviour on the part of the third
respondent?  It does seem to
be so.  There is no evidence as to what necessitated dismissal
in the case of the individual
applicant, as compared to the other
instances of published transgressions by other senior diplomats where
those miscreants escaped
dismissal.  It is my view that in the
case of the individual applicant, an attitude of overreaction and
retribution prevailed
on the part of the third respondent that
principally motivated dismissing the individual applicant.  This
would be seen as
discipline driven by improper motive. Considering
the completely insufficient and sparse manner in which both the
disciplinary
and appeal chairpersons reasoned the issue of dismissal
as an appropriate sanction, it cannot even be said that there was a
bona
fide decision taken which was simply wrong and to an extent
excusable where it comes to inconsistency.
[79]
Finally, and even excluding all else, this
is not a case where the exercise of a value judgment would justify
the individual applicant
being treated differently.
In
casu
, this value judgment must be
exercised as part and parcel of the sanction considerations, fully
discussed above. This value judgment
would make dismissal
inappropriate.  The value judgment in this instance supports the
application of corrective discipline
instead, and is not a situation
where it can be argued that despite differentiating the individual
applicant from other comparable
misconduct by other employees, he
nonetheless deserved dismissal.
[80]
In summary, and where it comes to
inconsistency, the dismissal of the individual applicant would
equally be rendered to be unfair.
The second respondent’s
failure to even consider this is therefore not only grossly
irregular, but is fatal to his award
being considered to be a
reasonable outcome, and the award should therefore be reviewed and
set aside on this basis as well.
Conclusion
[81]
For
all the reasons as set out above, it is my view that the second
respondent’s determination in his award that the dismissal
of
the individual applicant was an appropriate sanction is grossly
irregular, and resorts well outside the bands of what may be

considered to be a reasonable outcome.
[58]
As such, the award of the second respondent falls to be reviewed and
set aside.
[82]
Having
reviewed and set aside the award of the second respondent, I see no
reason to remit this matter back to the first respondent
again for
determination
de
novo
before another arbitrator. All the required evidence has been led and
is on record. The transcript is complete and all the documentary

evidence presented is part of the record. I thus have sufficient
evidentiary material before me to finally determine this matter.
[59]
Because it is clear from the evidence, and the applicable principles
in
casu
,
that the dismissal of the individual applicant by the third
respondent is too harsh, inappropriate, and thus unfair, the
dismissal
of the individual applicant must be held to be
substantively unfair. I shall therefore substitute the award of the
second respondent
with an award that the dismissal of the individual
applicant by the third respondent was substantively unfair, on the
basis that
the sanction of dismissal was unfair.
[83]
This then only leaves the issue of the
appropriate consequential relief to be afforded to the individual
applicant, consequent upon
this conclusion.  I will next turn to
deciding this.
The
issue of the relief
[84]
The relief to be afforded to an employee
whose dismissal is found to be unfair flows from Section 193(1) of
the LRA, which provides
as follows:
‘
If
the Labour Court or an arbitrator appointed in terms of this Act
finds that a dismissal is unfair, the Court or the arbitrator
may -
(a) order the employer to reinstate the employee from any date not
earlier than the date of dismissal;
order
the employer to re-employ the employee, either in the work in which
the employee was employed before the dismissal or in other
reasonably
suitable work on any terms and from any date not earlier than the
date of dismissal; or (c) order the employer
to pay compensation
to the employee.
’
[85]
In terms of Section 193(2), an employee
found to have been unfairly dismissed must be reinstated or
re-employed by the Labour Court
or an arbitrator, as the case may be,
unless one or more of the following specified exceptions are shown to
exist:
‘
(a)
the employee does not wish to be reinstated or re-employed; (b) the
circumstances surrounding the dismissal are such that a
continued
employment relationship would be intolerable; (c) it is not
reasonably practicable for the employer to reinstate or re-employ
the
employee; or (d) the dismissal is unfair only because the employer
did not follow a fair procedure.
’
[86]
In
applying Sections 193(1) and (2), the Court in
Equity
Aviation Services Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[60]
said:
‘
The
legislative structure for the resolution of unfair dismissal disputes
is clear and coherently crafted. The LRA allows for any
of the three
remedies set out in s 193(1) to be granted to an unfairly dismissed
employee. Reinstatement or re-employment remains
the legislatively
preferred remedy so as to restore the employee to the employment
relationship. They safeguard the employee's
security of employment.
Either of the two remedies may be granted except in the specified
circumstances set out in s 193(2) in
which case compensation in terms
of s 193(1)
(c)
may be ordered, the amount of which depends on the nature of the
dismissal.
’
[87]
This
exact sentiment was very recently echoed
SA
Revenue Service v Commission for Conciliation, Mediation and
Arbitration and Others
[61]
where it was held:
‘
The
correct approach to adopt when the dismissal has been found to be
unfair, is first to consider the provisions of s 193(1) and
then s
193(2) to determine which of the three remedies —
reinstatement, re-employment or compensation — may be granted.

This is buttressed by these remarks by Zondo J
[62]
:
Once
the Labour Court or an arbitrator has found a dismissal unfair, it or
he is obliged to consider which one of the remedies listed
in s
193(1) is appropriate, having regard to the meaning of s 193(2).
Considering both the provisions of s 193(1) and s 193(2)
is important
because one cannot adopt the attitude that dismissal is unfair,
therefore, reinstatement must be ordered. The Labour
Court or an
arbitrator should carefully consider the options of remedies in s
193(1) as well as the effect of the provisions of
s 193(2) before
deciding on an appropriate remedy. A failure to have regard to the
provisions of s 193(1) and (2) may lead to the
court or arbitrator
granting an award of reinstatement in a case in which that remedy is
precluded by s 193(2).’
[88]
It
is clear from the ratios in
Equity
Aviation Services
and
SA
Revenue Service
that reinstatement is the primary remedy for a substantively unfair
dismissal, and must follow a finding of unfair dismissal, unless
it
can be shown by the employer or be apparent from the evidence that
one of the special circumstances in Section 193(2) exist.
This
approach has also been consistently applied by the Labour Appeal
Court.
[63]
As said in
Boxer
Superstores (Pty) Ltd v Zuma and Others
[64]
:
‘…
Reinstatement
is in effect, the default position. …
’
[89]
Considering
whether any of the special circumstances in Section 193(2) apply, it
was clear that throughout the proceedings, the
individual applicant
sought reinstatement, meaning that Section 193(2)(a) did not apply.
Also, procedural fairness was never
in issue, disqualifying
consideration of Section 193(2)(d).  This then only leaves
Section 193(2)(b) – employment relationship
intolerability, and
Section 193(2)(c) – reasonable practicability.  In
Mediterranean
Textile Mills
[65]
the Court said the following where it comes to considering these
conditions:
‘…
at
the conclusion of each case it remains the responsibility of the
court or the arbitrator to determine whether or not, on the

evidentiary material properly presented and in the light of the
Equity
Aviation
principle, it can be said that the reinstatement order is justified.
In other words, even in a situation such as the present, where
no
specific evidence was canvassed or submissions made during the trial
on the issue of the non-reinstatable conditions, the court
or the
arbitrator is not only entitled but, in my view, is obliged to take
into account any factor which in the opinion of the
court or the
arbitrator is relevant in the determination of whether or not such
conditions exist.
In
Xstrata
[66]
the Court added the following:
‘
An
employer wishing to avoid reinstatement must satisfy the arbitrator
that one of the exceptions to reinstatement applies, in this
case to
show that it would not be practicable. The employer should lead
evidence concerning relief in anticipation of a finding
that a
dismissal might be ruled unfair.
’
And
finally in this respect, the Court in
Eskom
Holdings Ltd v Fipaza and Others
[67]
said:
‘
The
enquiry that determines the issue of whether or not reinstatement
should be ordered has as its focal point the underlying notion
of
fairness between both the employer and the employee which 'ought to
be assessed objectively on the facts of each case bearing
in mind
that the core value of the LRA is security of employment'
’
[90]
Considering
then what is contemplated by Sections 193(2)(b) and (c), the Court in
Xstrata
[68]
gave examples as to what could constitute ‘reasonably
practicable’ as contemplated by Section 193(2)(c), as follows:
‘
The
object of s 193(2)
(c)
of the LRA is to exceptionally permit the employer relief when it is
not practically feasible to reinstate; for instance, where
the
employee's job no longer exists, or the employer is facing
liquidation, relocation or the like. The term 'not reasonably
practicable'
in s 193(2)
(c)
does not equate with 'practical', as the arbitrator assumed. It
refers to the concept of feasibility. Something is not feasible
if it
is beyond possibility. The employer must show that the possibilities
of its situation make reinstatement inappropriate. Reinstatement
must
be shown not to be reasonably possible in the sense that it may be
potentially futile. An employee's length of service, the
delay in the
arbitration and alleged untested shortcomings in capacity are not
normally relevant to the question of practicability.
…
’
[91]
Despite
what was said in
Xstrata
,
the Court in
Witzenberg
Municipality
[69]
did
consider the fact that the employee had not worked for the employer
for a considerable period of time as a relevant factor in
coming to
the conclusion that reinstatement was not reasonably practicable.
This was also an important consideration to the
Court in
Republican
Press (Pty) Ltd v CEPPWAWU and Others
[70]
,
where it has held:
‘
...
While the Act requires an order for reinstatement or re-employment
generally to be made a court or an arbitrator may decline
to make
such an order where it is "not reasonably practicable" for
the employer to take the worker back in employment.
Whether that will
be so will naturally depend on the particular circumstances, but in
many cases the impracticability of resuming
the relationship of
employment will increase with the passage of time …
’
[92]
In
dealing with Section 193(2)(b), the Court in
Boxer
Superstores
[71]
said that an important consideration would be the evidence as to the
nature of the relationship between the parties, as well as
the
gravity and nature of the misconduct the employee had been found
guilty of.  The Court aptly described the consideration
as being
whether: ‘
the
relationship between the two parties is at the level where they can
no longer work together’
.
The gravity and nature of the misconduct was also the deciding
consideration in
SA
Revenue Service
[72]
,
as well as the lack of remorse by the employee.  In
Eskom
Holdings
[73]
it was said:
‘…
there
should be a properly conducted enquiry at the arbitration hearing
which seeks to determine whether or not the trust relationship

between the parties has, indeed, been destroyed beyond repair …
’
[93]
In
Potgieter
v Tubatse Ferrochrome and Others
[74]
the Court added:
‘…
the
focal point and overriding consideration in an enquiry concerning the
appropriateness of reinstatement is the notion of fairness
between
the parties. In
Equity
Aviation Services (Pty) Ltd v CCMA & others
,
the court held that fairness ought to be assessed objectively on the
facts of each case bearing in mind that the core value of
the LRA is
security of employment …
’
[94]
In this instance, this is not a situation
where reinstatement would be not reasonably practicable. There is
simply no evidence of
anything, at an organizational level and
considerations of integration, standing in the way of the individual
applicant being reinstated.
He remains properly trained for his
position, and as the evidence showed, his security clearance remained
intact.  He can
readily be redeployed back to his posting in
France, where everyone is happy to work with him. There is no reason
why the individual
applicant cannot resume what had started out as a
promising career in the foreign services, other than this one
blemish. Even if
the time period between when the individual
applicant was dismissed in May 2013 and whether this matter finally
came before me
in September 2016 is considered as a factor in this
respect, I do not believe it to be excessive to the extent of
becoming impracticable.
The delay in
Republican
Press
, for example, was more than six
years. I conclude that the exception in Section 193(2)(c) of the LRA
does not apply.
[95]
Turning then to Section 193(2)(b), this is
the consideration principally relied on by the third respondent. But
the problem is that
the evidence presented by the third respondent to
sustain the application of this exception is severely lacking.
The third
respondent needed lead testimony of persons with whom the
individual applicant would directly work with, to show that any
working
relationship would not be possible.  As already dealt
with above, the actual evidence showed that there exists a real
possibility
that the working relationship between the individual
applicant, his superiors, peers and fellow diplomats in France could
be easily
restored and continue without much fuss. The gravity of the
misconduct is also not such so as to itself, by way or its mere
existence,
destroy the employment relationship, such as for example
the racist conduct of the employee in
SA
Revenue Service
.   Therefore,
it my view that the exception in Section 193(2)(b) equally finds no
application.
[96]
I
therefore conclude that none of the non reinstateable considerations
as contemplated by Sections 193(2)(b) and (c) apply in this
case.
This means that the default position applies, and the individual
applicant is entitled to reinstatement. This reinstatement
must
however be subject to a final written warning, for the reasons I have
set out above.  In
Xstrata
[75]
the Court said that:
‘
If
the exceptions to the remedy of reinstatement do not apply, the
Labour Court and arbitrators only have a discretion with regard
to
the extent to which reinstatement should be made retrospective.
’
[97]
As
to how this discretion must be exercised, the Court in
Equity
Aviation Services
[76]
held:
‘…
In
exercising the discretion a court or an arbitrator may address, among
other things, the period between the dismissal and the
trial as well
as the fact that the dismissed employee was without income during the
period of dismissal, ensuring however, that
an employer is not
unjustly financially burdened if retrospective reinstatement is
ordered or awarded.
’
In
Mediterranean
Textile Mills
[77]
the
Court referred with approval to the aforesaid
dictum
in
Equity
Aviation Services
,
and added the following:
[78]
‘
I
am accordingly inclined to agree with the appellant's counsel that
the retrospective reinstatement order issued by the Labour
Court
entitling the employees to full backpay had the effect of 'unjustly
financially burdening' the appellant and was not objectively
fair on
the facts of this case. The order did not take cognizance of the
employees' conduct which deserved some form of censure
as a mark of
this court's disapproval thereof. In my view, an order granting the
employees 12 months' backpay would be just and
equitable in the
circumstances.’
[98]
In
deciding the appropriate back pay to be awarded, I do consider that
the individual applicant did commit misconduct and that there
was
harm caused to the image and reputation of the third respondent. Even
though these considerations were not enough to work against

reinstatement, they remain valid considerations when deciding the
quantum
of back pay.  I also consider that it was the failure of the
second respondent that resulted in this Court having to be
approached,
and the resulting further delay that took place as a
result thereof. One must also bear in mind what would be considered
to be
just and equitable to both parties, an important consideration
where it comes to monetary awards.
[79]
Taking a leaf out of the book of the judgment in
Mediterranean
Textile Mills
,
I decide that back pay should be limited to 12(twelve) months’
salary.
[99]
This then only leaves the question of
costs.  In terms of Section 162(1) and (2) of the LRA, I have a
wide discretion where
it comes to the issue of costs. The third
respondent did oppose the matter, but I do not think the opposition
was unreasonable.
I am also mindful of the fact that as a
result of the relief afforded in this judgment, an employment
relationship would be restored
between the parties and I am not
inclined to burden the restoration of this relationship with a costs
order. The third respondent
and the PSA also have a continuing
relationship.  I also consider that the individual applicant
indeed did transgress, which
was the catalyst for all that followed.
In all these circumstances, the appropriate order where it comes to
costs, is to
make no order as to costs, and I exercise my discretion
accordingly.
[100]
In conclusion the arbitration award of the
second respondent in terms of which it was found that the dismissal
of the individual
applicant by the third respondent was an
appropriate and fair sanction is irregular, unsustainable and not a
reasonable outcome,
and falls to be reviewed and set aside.  The
award of the second respondent must be substituted with an award that
the dismissal
of the individual applicant by the third respondent is
substantively unfair on the basis that the sanction of dismissal in
this
instance was unfair.  The individual applicant is entitled
to consequential relief, as a result of his substantively unfair

dismissal, of reinstatement retrospective to the date of his
dismissal on 6 May 2013 on his same terms and conditions that
prevailed
at the date of his dismissal, but with back pay limited to
12(twelve) months’ salary.
Order
[101]
In the premises, I make the following
order:
1.
The applicant’s review application is
granted.
2.
The arbitration award of the second
respondent dated 24 February 2014 and issued under case number GPBC
1254/2013 is reviewed and
set aside.
3.
The arbitration award of the second
respondent dated 24 February 2014 and issued under case number GPBC
1254/2013, is substituted
with an award that the dismissal of the
individual applicant by the third respondent is substantively unfair.
4.
The individual applicant, Andrew Rae, is
reinstated with retrospective effect to the date of his dismissal on
6 May 2013, on the
same terms and conditions of employment that
prevailed at the time of dismissal, but subject to a final written
warning that will
apply from date of this order for a period of
12(twelve) months.
5.
The back pay payable to the individual
applicant as a result of the reinstatement awarded in terms of
paragraph 4 of this order
shall be limited to an amount equivalent to
12(twelve) months’ salary of the individual applicant.
6.
There is no order as to costs.
_____________________
S.Snyman
Acting Judge of
the Labour Court
Appearances:
For the
Applicant: Ms J Rheeder of Johanette Rheeder Attorneys
For the Third
Respondent: Adv L Pillay
Instructed by:
The State Attorney, Pretoria
[1]
Act
66 of 1995.
[2]
Section 145(1)(a) reads: ‘Any party to a dispute who alleges a
defect in any arbitration proceedings under the auspices
of the
Commission may apply to the Labour Court for an order setting aside
the arbitration award - (a) within six weeks of the
date that the
award was served on the applicant …’
[3]
(2007)
28 ILJ 2405 (CC).
[4]
Constitution
of the Republic of South Africa, 1996.
[5]
Id
at para 110.  See also
CUSA
v Tao Ying Metal Industries and Others
(2008)
29 ILJ 2461 (CC)
at
para 134;
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
(2008)
29
ILJ
964 (LAC) at para 96.
[6]
The
Section reads: ‘
A
defect referred to in subsection (1), means-
(a)
that the commissioner ... committed a gross irregularity in the
conduct of the arbitration proceedings.’
[7]
(2013)
34
ILJ
2795 (SCA)
at para 25.
[8]
(2014)
35 ILJ 943 (LAC) at para 14.  The
Gold
Fields
judgment was also followed by the LAC itself in
Monare
v SA Tourism and Others
(2016) 37 ILJ 394 (LAC) at para 59;
Quest
Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp
Fulfilment Services (Pty) Ltd) v Legobate
(2015) 36 ILJ 968 (LAC) at paras 15 – 17;
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
(2015) 36 ILJ 2038 (LAC) at para 16.
[9]
See
Fidelity
Cash Management
(
supra
)
at para 102.
[10]
See
Campbell
Scientific Africa (Pty) Ltd v Simmers and Others
(2016)
37 ILJ 116 (LAC) at para 32.
[11]
(2015)
36 ILJ 1453 (LAC) at para 12.
[12]
(2015)
36
ILJ
2802 (LAC)
at
para
32
.
[13]
(2016) 37 ILJ 1819 (LAC) at para 21.  See also
Xstrata
SA (Pty) Ltd (Lydenburg Alloy Works) v National Union of Mineworkers
on behalf of Masha and Others
(2016)
37 ILJ 2313 (LAC) at para 12;
MacDonald's
Transport Upington (Pty) Ltd v Association of Mineworkers and
Construction Union and Others
(2016) 37 ILJ 2593 (LAC) at para 30.
[14]
(2017)
38 ILJ 242 (LC) at para 5
[15]
Id at para 25.  See also
SBV
Services (Pty) Ltd v National Bargaining Council for the Road
Freight and Logistics Industry and Others
(2016)
37 ILJ 708 (LC) at para 36.
[16]
See
Brodie
v Commission for Conciliation, Mediation and Arbitration and Others
(2013)
34 ILJ 608 (LC) at para 33;
Sonqoba
Security Services MP (Pty) Ltd v Motor Transport Workers Union
(2011)
32 ILJ 730 (LC) at para 9;
De
Beer v Minister of Safety and Security and Another
(2011)
32 ILJ 2506 (LC) at para 27.
[17]
(2010)
31 ILJ 713 (LC) at para 27.
[18]
Filed in terms of Rule 7A(8) on 18 November 2014.
[19]
Sidumo
(
supra
)
at para 178.  See also
Woolworths
(Pty) Ltd v Mabija and Others
(2016) 37 ILJ 1380 (LAC) at para 15.
[20]
(1999)
20
ILJ
578 (LAC).
[21]
Sidumo
(
supra
)
at
para 78.  This
dictum
was also referred to with approval in
National
Commissioner of the SA Police Service v Myers and Others
(2012)
33 ILJ 1417 (LAC) at
para 82.
[22]
(
supra
)
at
para 94.
[23]
See
Eskom
Holdings Ltd v Fipaza and Others
(2013)
34 ILJ 549 (LAC) at para 54;
Harmony
Gold Mining Co Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2013)
34 ILJ 912 (LC) at para 22;
Trident
SA (Pty) Ltd v Metal and Engineering Industries Bargaining Council
and Others
(2012)
33 ILJ 494 (LC) at para 16;
Taxi-Trucks
Parcel Express (Pty) Ltd v National Bargaining Council for the Road
Freight Industry and Others
(2012) 33 ILJ 2985 (LC) at para 18;
Samancor
Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries
Bargaining Council and Others
(2011)
32 ILJ 1057 (LAC) at para 34;
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
(2011)
32 ILJ 1189 (LC) at paras 26 – 27;
City
of Cape Town v SA Local Government Bargaining Council and Others (2)
(2011)
32 ILJ 1333 (LC) at paras 27 – 28;
Mutual
Construction Co Tvl (Pty) Ltd v Ntombela NO and Others
(2010)
31 ILJ 901 (LAC) at paras 37 – 38.
[24]
(2012)
33 ILJ 2705 (LC) at para 9.
[25]
(2012)
33 ILJ 2054 (LAC) at 2057G-I.
[26]
(2010)
31 ILJ 2475 (LC) at para 19.
[27]
(2008)
29 ILJ 2189 (LAC) at para 8.  See also
Pack
'n Stack v Khawula NO and Others
(2016)
37 ILJ 2807 (LAC) at paras 19 – 20.
[28]
(2014) 35 ILJ 3349 (LAC) at para 29.
[29]
(2016)
37 ILJ 2285 (LAC) at para 24.
[30]
Compare
Taxi-Trucks
Parcel Express (Pty) Ltd v National Bargaining Council for the Road
Freight Industry and Others
(2012)
33 ILJ 2985 (LC) at paras 31 – 33.
[31]
See
Tanker
Services (Pty) Ltd v Magudulela
[1997]
12 BLLR 1552
(LAC);
Transnet
Freight Rail v Transnet Bargaining Council and Others
(2011)
32 ILJ 1766 (LC)
;
Exactics-Pet
(Pty) Ltd v Patelia NO and Others
(2006)
27 ILJ 1126 (LC)
.
[32]
(2010)
31
ILJ
1844 (LAC) at 1850A-C.
[33]
(2006)
27 ILJ 927 (LAC) at para 32.  See also
Transnet
Freight Rail
(supra)
at para 43.
[34]
Compare
Legobate
v Quest Flexible Staffing and Others
(2014)
35 ILJ 738 (LC) at paras 26 – 27.
[35]
See
Samancor
Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries
Bargaining Council and Others
(2011)
32 ILJ 1057 (LAC) at para 36.
[36]
(2015)
36 ILJ 602 (LAC) at para 46.
[37]
(2000)
21 ILJ 1051 (LAC)
at
para 25.
[38]
(2009)
30 ILJ 2642 (SCA) at para 19.
[39]
Id at para 20.
[40]
(2016)
37 ILJ 1380 (LAC) at para 21.
[41]
Id
at
para 22.
[42]
(
supra
)
at para 35.
[43]
(2006)
27
ILJ
2114
(LC) at para 8.
[44]
See
Chemical
Energy Paper Printing Wood and Allied Workers Union v National
Bargaining Council for the Chemical Industry and Others
(2010)
31 ILJ 2836 (LAC) at para 20.
[45]
(2004)
25 ILJ 231 (LAC) at para 35.
[46]
See Schedule 8 Item 3(6) which reads: ‘
The
employer should apply the penalty of dismissal consistently with the
way in which it has been applied to the same and other
employees in
the past, and consistently as between two or more employees who
participate in the misconduct under consideration.’
[47]
(2010)
31 ILJ 452 (LC) at para 10.
[48]
SA
Commercial Catering and Allied Workers Union and Others v Irvin and
Johnson Ltd
(1999)
20 ILJ 2302 (LAC) at para 29;
Absa
Bank Ltd v Naidu
(
supra
)
at paras 36 – 37;
Consani
Engineering (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2004)
25 ILJ 1707 (LC) at para 19.
[49]
Fidelity
Cash Management Services
(
supra
)
at paras 20 – 23;
ZA
One (Pty) Ltd t/a Naartjie Clothing v Goldman No and Others
(2013)
34 ILJ 2347 (LC) at paras 61 – 62 and 67.
[50]
(2014)
35 ILJ 2406 (LAC) at para 39.
[51]
(2011)
32 ILJ 1705 (LC) at para 16.
[52]
(2012)
33 ILJ 623 (LC) at para 10.  See also
National
Union of Mineworkers on behalf of Botsane v Anglo Platinum Mine
(Rustenburg Section)
(
supra
)
at para 39;
Banda
v
General Public Service Sectoral Bargaining Council and Others
[2014]
JOL 31486
(LC) at para 49;
SA
Municipal Workers Union on behalf of Abrahams and Others v City Of
Cape Town and Others
(2011)
32 ILJ 3018 (LC) para 50.
[53]
Banda
(
supra
)
at para 48.
[54]
(
supra
)
at para 29.  See also
Consani
Engineering
(
supra
)
at para 19.
[55]
See
Chemical
Energy Paper Printing Wood and Allied Workers Union v National
Bargaining Council for the Chemical Industry and Others
(supra)
at
para 21.
[56]
See
SRV
Mill Services (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2004)
25 ILJ 135 (LC) at para 23.
[57]
(
supra
)
at para 10.
[58]
See
Msunduzi
Municipality v Hoskins
(2017)
38 ILJ 582 (LAC) at para 30.
[59]
Section 145(4) of the LRA gives this Court the power to finally
determine the matter.  See
W
oolworths
(Pty) Ltd v SA Commercial Catering and Allied Workers Union and
Others
(2016)
37 ILJ 2831 (LAC) at paras 28 – 29;
SA
Custodial Management (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
(2013)
34 ILJ 1255 (LC) at para 28;
Blitz
Printers
v Commission for Conciliation, Mediation and Arbitration and Others
[2015]
JOL 33126
(LC)
at para 77;
Member
of the Executive Council, Department of Health, Eastern Cape v
Public Health and Social Development Sectoral Bargaining
Council and
Others
(2016)
37 ILJ 1429 (LC) at paras 54 – 55
.
[60]
(2008)
29 ILJ 2507 (CC)
at
para 44.
[61]
(2017)
38 ILJ 97 (CC) at para 38.
[62]
The
Court was r
eferring
to the minority judgment of Zondo J in
Toyota
SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2016)
37 ILJ 313 (CC) at para 135.
[63]
Mediterranean
Textile Mills (Pty) Ltd v SA Clothing and Textile Workers Union and
Others
(2012) 33 ILJ 160 (LAC) at para 28;
Independent
Municipal and Allied Trade Union on behalf of Strydom v Witzenberg
Municipality and Others
2012)
33 ILJ 1081 (LAC) at para 30;
Elliot
International (Pty) Ltd v Veloo and Another
(2015) 36 ILJ 422 (LAC) at para 53;
Xstrata
SA (Pty) Ltd (Lydenburg Alloy Works) v National Union of Mineworkers
on behalf of Masha and Others
(2016) 37 ILJ 2313 (LAC) at paras 6 and 8.
[64]
(2008)
29 ILJ 2680 (LAC) at para 9.
[65]
(
supra
)
at para 30.
[66]
(
supra
)
at para 8.
[67]
(2013)
34 ILJ 549 (LAC) at para 66.
[68]
Id at para 11.
[69]
(
supra
)
at paras 31 – 34.  See also
National
Union of Metalworkers of SA on behalf of Maifo and Others v Ulrich
Seats (Pty) Ltd
(2012)
33 ILJ 2918 (LC) at para 48.
[70]
(2007)
28 ILJ 2503 (SCA)
at
para 20 and 22.
[71]
(
supra
)
at paras 9 and 11.
[72]
(
supra
)
at paras 45 – 46
[73]
(
supra
)
at para 66. Compare
Trio
Glass t/a The Glass Group v Molapo NO and Others
(2013) 34 ILJ 2662 (LC) at para 52, where it comes to the kind of
factual considerations that would exist, when it can legitimately
be
said the employment relationship has been destroyed.
[74]
(2014)
35 ILJ 2419 (LAC) at para 39.
[75]
(
supra
)
at para 8.  See also
Billiton
Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and Others
(2010)
31 ILJ 273 (CC) at para 26.
[76]
(
supra
)
at para 43.
[77]
(
supra
)
at para 31.
[78]
Id at para 45.
[79]
In dealing with an award of back pay,
Zondo
JP (as he then was) in
Kemp
t/a Centralmed v Rawlins
(2009)
30
ILJ
2677 (LAC) at para 27 said: ‘
‘…
.
The court has to consider all the relevant circumstances and make
such order as it deems fair to both parties in the light of

everything ...’.  The SCA in
Rawlins
v Kemp t/a Centralmed
(2010)
31
ILJ
2325
(SCA)
upheld
the findings of the LAC with regard to the principles set out in the
LAC judgment.