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[2017] ZALCJHB 264
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Watson v South Africa Rugby Union (SARU) and Others (C672/2015) [2017] ZALCJHB 264 (30 June 2017)
IN THE LABOUR COURT OF SOUTH
AFRICA, JOHANNESBURG
Reportable
Case NO: C672/2015
In the matter between:
ANDRÉ
WATSON
Applicant
and
SOUTH AFRICAN RUGBY UNION
(‘SARU’)
First
Respondent
COMMISSION FOR CONCILIATION,
MEDIATION
&
ARBITRATION
Second
Respondent
JOSEPH WILSON
THEE
Third
Respondent
Heard: 17 August 2016 (Cape Town) &
11 October 2016 (Johannesburg)
Delivered: 30 June 2017
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
“
Hockey
players only know two languages – English and profanity!”
[1]
[1]
Whether the above jocular remark can be said to be descriptive
of all other professional sports is debatable. It is accepted however
that professional sports in general is
competitive,
emotional, intense, and obviously result driven. Professional
athletes’ mantra is “
failure
is not an option”
, whilst that of
rugby fanatics is;
"Rugby is not just a sport, It’s
a way of life".
Within that context, it
is not uncommon for failures or negative results on the sports field
to be met with liberal and gratuitous
use of obscenities
by
players, coaches, technical staff and spectators, as an expression of
frustration, anger, or disappointment. Obviously, such
a reaction is
met
disgust by all ‘civilised’ human
beings.
[2]
When it comes to the workplace however, the question to be
addressed by the facts of this case is whether employees, who are
charged
with the administration of rugby in whatever capacity, are
also at liberty to gratuitously use profanities when engaging with
each
other? To the extent that it was argued in this case that use of
intemperate language was part and parcel of ‘rugby culture’,
can its use by employees nevertheless be deemed to be incompatible
with the environment of that ‘culture’?
[3]
The applicant, André
Watson approached this court in terms of the provisions of section
145 of the Labour Relations Act (The
LRA)
[2]
to review and set aside the award of the Third Respondent
(Arbitrator), dated 27 June 2015, in terms of which he was dismissed
from the employ of the First Respondent (“SARU”). The
award was issued pursuant to an Inquiry in terms of the provisions
of
section 188A of the LRA. SARU opposed the review application.
Background:
[4]
Watson was employed by SARU as a General Manager: Executive Head of
Referees. He commenced his employment during November 1998
and
reported to the CEO of SARU, Mr. Jurie Roux. As at the time of the
arbitration proceedings, he was due to retire in five years’
time. As per the Notice of Arbitration dated 13 March 2015, the
following charges were levelled against him:
(1)
“
Grossly inappropriate and/ or
unprofessional and/ or unbecoming behaviour and/ or abusive conduct:
(a)
In the first instance, allegedly towards
participants at the High-Performance Referees Camp, including the
Referees, in and around
November 2014 arising from the manner in
which you addressed such participants, the language that you used and
the attitude displayed
towards them.
(b)
In the second instance, when allegedly
addressed Coaches and referees prior to the commencement of the
Varsity Cup 2015 arising
in the manner in which you addressed the
Referees and Coaches, the language that you used and the attitude you
displayed towards
Cwengile Jadezweni.
(c)
In the third instance, when you allegedly
uttered words following or similar effect to Mr Rasta Rashivenge-
“I’ll f****
you up…I will kill you if you turn
your back on South Africa…I will destroy you as I am more
powerful than you know”
– on or about 28 August 2014
during discussions between two of you pertaining to contract
negotiations.
(2)
As a consequence of the alleged conduct
above and, in general, the manner in which you manage and/ or deal
with Referees, a breakdown
of your relationship with majority of
Referees on the Elite and National Panel has allegedly arisen in that
they are unwilling
to work with you thereby leading to a situation of
possible incompatibility on your part arising from such conduct.
(3)
Your conduct as alleged has the potential
to bring
the name and reputation of SARU
into disrepute.”
[5]
The charges emanate from an investigation initiated by SARU,
following upon a grievance letter submitted to it during January
2015
by one of its employee Mr. Mark Lawrence, on behalf of a group of 24
employees within its Referees’ Department. The
grievance letter
was sent to Roux, Mr. Hoskins (SARU President), and SARU’s
Human Resource Manager, Ms Ingrid Mangcu.
A meeting called by
management with the aim of resolving the said grievances led to
matter being referred for investigations by
Mr. Jeremy Chennells, an
independent Labour Law and Management Consultant.
[6]
The grievances by the members of the Referees’ Department arose
inter alia
from Watson’s alleged conduct at events
hosted SARU. One was at the High-Performance Camp held between 27 and
29 November
2014. The event was attended by referees from the
Referees’ Department, female referees, and rugby officials from
Botswana,
Zimbabwe, Namibia, Kenya and the USA. In this regard, it
was alleged that during this open session, Watson spewed obscenities
in
reference to Selectors upon being asked a question the latter had
not attended the event, by saying; “
f**** the Selectors”
and “
f**** their mothers”
.
[7]
At another event held on 28 November 2014 (closed session of the
Camp), it is alleged that he went on a foul-mouthed tirade
when
addressing referees, including telling them that; ‘
You are a
bunch of f**** women’; ‘you are a bunch of spoilt
brats, you f**** women, you really are greedy and
egocentric and
nothing is good enough unless you f**** sign it’; ‘I
don’t always have something to say to you,
so why must I f****
call you?’; ‘you f**** up’; ‘you can’t
teach me at the age of 50 to change my
f**** communication style and
drop my tone of voice and change my ‘s’ and ‘I’s’
and spell ‘vok’
with an ‘f’ instead of a
‘v’….’’
[8]
Another incident complained of occurred at the Varsity Cup Tournament
during January 2015. Watson gave a presentation to University
Coaches
and a number of Varsity Cup referees. It is alleged that Watson had
humiliated one of the referees, Mr Cwengile Jadezweni,
after a video
footage of a previous rugby game officiated by the latter was
screened. At the conclusion of the screening, Watson
allegedly turned
to Jadezweni in the presence of all attendees, and said, “
This
is not the way to communicate on the field and we will not
communicate like that”.
Watson allegedly thereafter turned
to Jadezweni and said; ‘
I hope you have learnt your lesson’
.
Jadezweni is alleged to have been humiliated by this incident,
especially after the other attendees turned around to look at him.
[9]
Further allegations against Watson were that he used abusive and
threatening language towards one of the referees, Mr Rasta
Rashivenge, at a meeting held in SARU’s offices. Rashivenge was
one of the up and coming referees under Watson and his offence
was to
have designs to leave South Africa for Australia. Watson allegedly
did not take this news well and had said to Rashivenge;
“
I
will f*** you up, I will kill you if you turn your back on South
Africa, I will destroy you as I am more powerful than you know.”
[10]
Chennells was also tasked with investigating further allegations that
Watson’s management style as the Head of the Referees
Department was unprofessional; arrogant; demeaning; unapproachable;
autocratic; and that he always used abusive and threatening
language;
had intimidated and pressured referees; that he was ‘bombastic’
and had ‘lost the change-room’.
Some of the referees also
questioned his reasoning.
[11]
The Chennells’ investigation was conducted by interviewing all
interested parties including the Watson. The recommendations
issued
on 22 February 2015 to SARU were
inter alia
:
a)
“
a
Disciplinary Hearing should be initiated, at which Andre Watson is
called to answer the allegations at the High-Performance Referee
Camp
in November 2014, he was party to conduct which was grossly
unprofessional, was abusive and insulting and which impugned the
reputation of both management and SARU;
b)
The Disciplinary Chairperson (as designated in
(a) above) should additionally be tasked to assess whether Watson’s
overall
management style and relationship with his subordinates, have
accorded with the values of the organisation;
…
if Watson is
deemed to have failed in this regard, the Chairperson should be
mandated to assess whether in light of the relationship
that
presently exists in his department, the trust relationship between
Watson and his subordinates has been damaged to such an
extent that
an ongoing employment relationship has been rendered untenable;
c)
An
assessment should be made by the designated Chairperson as to whether
Watson has the ability to continue to manage the department
in the
light of the polarization between himself and the other referees.
This point of assessment is one of “incapacity”
arising
from Watson’s possible incompatibility with his department
going forward;
d)
The assessment will require analysis whether
Watson has both the inclination and capacity to alter his management
style and to modify
his interactions with his subordinates, in such a
way that the trust relationship between himself and his subordinates
can be restored;
…
This process
might include consideration for the modification of Watson’s
role to minimise his managerial oversight, a structured
intervention
to guide and measure fundamental change on his part or termination of
his service on grounds of incapacity and incompatibility;
e)
The allegation that Watson threatened to
assault Rashivenge is most serious one and requires that it be tested
in an appropriate
forum;
…
The
Disciplinary Hearing cited in (2) above, should additionally be
tasked to call Andre Watson to answer the allegation that on
28
th
August 2014, he directed threatening and abusive and threatening
statements to Rasta Rashivenge in flagrant breach of SARU
Disciplinary
Code.’
The
section 188A of the LRA Inquiry:
[12]
The parties had agreed to the section 188A of the LRA Inquiry on 16
March 2015, and had concluded a pre-Arbitration Minute
on 15 April
2015. The inquiry was held over a period of 8 days commencing 9 April
2015 until 2 June 2015. The parties had also
submitted written
closing arguments.
[13]
At the inquiry, SARU lead the evidence of six witnesses, being,
Messrs Chennells, the investigator, and Marius Jonkers, Rashivenge,
Jaco Peyper, Craig Joubert and Jadezweni, who were all referees. The
evidence of Chennells was largely in regard to his investigation
and
report. He had confirmed the findings in his report, the remarks made
by Watson, and the recordings he had relied upon which
were made
during the High-Performance Camp during November 2014.
[14]
Chennells confirmed that from his investigations, most of the
referees he had interviewed viewed the remarks made by Watson
at the
above-mentioned events as intimidation, and took offence to his use
of crude language during camp. Some had even thought
of resigning
after the incident. Having also interviewed Watson, Chennells
testified that the former had accepted the concerns
raised by the
other referees, and had at some stage, indicated his willingness to
change his management style.
[15]
Jonkers testified in regards to the incident at the High Performance
Camp, and stated that Watson made the remarks attributed
to him in
the presence of South African referees and international visitors,
including female participants. He testified that Watson
often used
swear words.
[16]
Jonkers was not present when the incident between Watson and
Rashivenge took place. Rashivenge had however called him after
the
incident and spoke to him in confidence, and told him that as a
result of the incident with Watson, he could not continue his
role
with South African Rugby and that he was leaving. Jonkers further
testified that he regarded Watson as his mentor, and that
despite the
incidents, their relationship was not affected. He further stated
that Watson did not tolerate being challenged, and
that his attitude
was that it was either ‘
his way or the highway’.
[17]
Jonker also referred to an incident that took place during 2014 when
he was driving from Cape Town to officiate a rugby match
in
Bloemfontein. He was accompanied by his wife and young children. He
had then called Watson on a speaker phone whilst driving
to ask him
about the AMS System. Watson responded in expletives, including; ‘
Jy
is te f**** groot vir jou skoene…. En as jy nie op die f****
AMS wil gaan dan is jy nie f***** voorbereid’
. When Jonker
objected and told him that his family could hear the conversation,
his response was
; ‘dus jou f*** probleem’.
After
that conversation, and whilst driving to the match, Jonker was
informed by Lawrence that he had been replaced as a referee
in the
match he was going to. Jonker had to call Watson to apologise in
order not to be removed from the game, and upon doing so,
he was put
back to officiate the match, and had continued with his trip to
Bloemfontein. According to Jonker, the incident impacted
on one of
his young sons who thereafter refused to call Watson “
Oom
Wattie’
as he used the ‘
f’
word.
[18]
Rashivenge serves on both the local and international referees’
panels. He gave evidence in regard to his meetings with
Watson during
August and September 2014 concerning contract renewals. He had raised
the issue that he was concerned about Watson’s
attitude towards
him, and wanted to establish whether he disliked him and whether it
was racial. It was at that stage that
Watson had responded by
saying that he would
f**** him up and destroy him, and that he was
powerful and destroy him if he turned his back on South Africa
.
Rashivenge testified that be felt victimised and questioned whether
other referees would be treated in the same manner, and had
subsequently left for Australia. He further testified that during the
China Seven’s Tournament, Watson apologised twice to
him and
that he gave him an embrace. He nevertheless did not see a future
with Watson and that a relationship was not feasible.
He reiterated
that he no longer trusted Watson and had no respect for him after the
incident.
[19]
Peyper’s testimony was to the effect that at the Referees’
High-Performance Camp, he had led a presentation during
the ‘Open
Session’. Some of the referees inquired about the absence of
Selectors in that meeting, as they held the
view that Selectors could
benefit from the presentations, particularly since they were the ones
that judged referees on line-outs
and mauls. It was at that point
when Watson said; “
f*** the selectors and f**** their
mothers”
. One of the participant’s (Q Immelman)
father was known to be a Selector. Peyper had had taken an empty jar
(‘swearing
jar’), placed it in front of him and said
that; ‘
This is a swearing jar, R5.00 for anyone who swears
for use in the bar later’.
Undeterred, Watson had then
offered his credit card whenever a swear word was used.
[20]
Peyper further stated that Watson continued using foul language for
the duration of the meeting. He was of the opinion that
Watson would
not change and that he could not work with him again. He had
confirmed that he had a private conversation with Watson
regarding
the incident and that the latter had acknowledged that he was wrong.
Watson however did not apologise to the group.
[21]
Joubert testified that Watson’s management style was very
threatening. He conceded that Watson was also supportive. He
also had
a conversation with Rashivenge towards the end of 2014, and the
latter had confirmed that he was leaving South Africa
for Australia,
as he was threatened by Watson. He testified that he always felt that
Mr Watson would not change, and that many
referees were unhappy with
him. He testified that Rashivenge was an honest person, and he had no
reason to doubt his version in
respect of the incident with Watson.
[22]
Jadezweni testified regarding the incident which occurred during
January 2015 at the commencement of the Varsity Cape Tournament
after
the presentation and the showing of a recorded match he had
officiated. He confirmed that remarks attributed to Watson, and
testified that he was humiliated as an up and coming referee
especially after the other referees in the meeting had turned around
to look at him subsequent to Watson’s comments. His view was
that Watson’s comments were not warranted.
[23]
Watson testified, and had also called upon other referees, Messrs
Oreogopotse Rametsi, and Rodney Boneparte, Ms Aletta Coetzee,
an
Office Support Adviser, Mr Jurie Roux the Chief Executive Officer, Mr
Peirre Oelofse a Direct Line Manager to Mr Watson and
Mr Steven
Meintjies the Chairperson of South African Referees Association to
testify on his behalf.
[24]
Rametsi testified that he was present at the High-Performance Camp
and that he did not hear Watson say; “
f**** the selectors
and f**** their mothers”,
and that he would have objected
if he had heard him say so. He however confirmed that Watson
used inappropriate language at
the camp, and contended that the use
of foul language was common, as Peyper had also used it before. He
confirmed that Watson made
the remarks attributed to him towards
Jadezweni at the Varsity Cup, but did not believe that Jadezweni was
humiliated. Under cross-examination,
Rametsi’s contention was
that the words uttered by Watson did not affect people’s
dignity, and were not directed specifically
at the coaches.
[25]
Bonaparte confirmed that foul language was used by Watson and others
at the High-Performance Camp. He however did not experience
any
threatening behaviour by Watson, and did not hear him utter the words
“
f**** the selectors and f**** their mothers”
. His
contention was also that had he heard those words, he would have
objected.
[26]
Aletta Coetzee used to report directly to Watson. She testified that
she was present at the High-Performance Camp and did not
recall
hearing the foul language attributed to Watson. Had she done so, she
would also have objected to its use. She could however
recall that
words such as ‘
up you’
and ‘
flippant’
were instead used regularly. Her contention was that Watson’s
management style was hard driven and result oriented, and that
if
foul language was used, it must be contextualised and not
personalised. Her approach was simply to ignore it.
[27]
Watson in his testimony conceded that his conduct at the
High-Performance Camp in the presence of external stakeholders could
be interpreted as arrogant. He had admitted that he had said ‘
f****
the selectors’
. He denied however that he had also said
‘
f**** their mothers’
.
[28]
He however did not deny the incident, and during the arbitration
proceedings (as recorded by the Arbitrator), he had on various
occasions during his testimony, apologised and indicated his
willingness to change. He testified that since the initiation of the
disciplinary processes he had taken the initiative to change his
shortcomings. He testified that prior the process there was no
indication of a break down in relationship between him and the other
referees. He denied that the relationship between him and
SAFU had
irretrievably broken down, and that it could be mended if an
opportunity was provided. He testified that he was not made
aware of
the issue of him being incompatible with other employees and that
this was never reported to his line manager.
[29]
Jurie Roux, is the SARU COO, and Watson reported to him. He testified
that the use of foul language was unacceptable and needed
to be
addressed. He however declined to comment on whether the relationship
between Watson and SARU had become incompatible.
[30]
Pierre Oelofse was Watson’s direct manager. He was also at the
High-Performance camp and had heard Watson use the foul
language
attributed to him. He however denied that Watson had also said ‘
f****
their mothers’
. He further testified that Rasta Rashivenge
was an ‘honest and nice person’, but was in the habit of
fabricating stories.
[31]
Steven Meintjies is the chairperson of the SA Referees Association.
He confirmed that Watson used foul language including having
said;
‘
we are a bunch of f**** women’
. He however
testified that the language was directed towards referees and not at
selectors, and that other participants equally
used foul language.
Despite conceding that Watson had used foul language towards
selectors, he had no recollection of him saying
‘
f**** their
mothers’
, and that had he heard it, he would have
intervened. He further blamed himself for allowing foul language to
be used over a period
of time, and testified that the practice of
swearing had been prevalent throughout SARU since 1984 and there was
a need for change.
According to Mentjies, Watson was of the view that
referees were not working as a unit and it was at that stage that he
had labelled
them spoilt brats. He held Watson in high esteem and as
a person who had achieved objectives and had a participative
management
style, which was direct and open.
Award:
[32]
Having considered and analysed the evidence of both parties and
further having had regard to the issues he was called upon
to
determine, and the parties’ arguments, the Arbitrator made the
following conclusions:
32.1 Watson was guilty of the
allegations under 1 (a) on the basis that the evidence presented by
his witnesses in regards to the
use of foul language at the
High-Performance Camp was to be rejected, as it was highly improbable
that Bonaparte and Coetzee could
not have heard what was said, and
that Mentjies’ version was convenient as he alleged to have
only heard a portion of what
Watson had said. He observed that the
witnesses wanted to defend an improbable version.
32.2 The version of Peyper was more
probable, and Watson had made the remarks referred to at the Varsity
Cup Tournament meeting,
and he was therefore guilty of charge 1(a) as
charged;
32.3 Watson was also guilty under
charge 1 (b) as it was common cause that he had uttered the words
attributed to him towards Jadezweni
at the meeting with Varsity
coaches and referees;
32.4 Watson was also guilty under 1
(c), and there was no reason to believe that Rashivenge would have
fabricated his version to
incriminate him falsely, especially in
light of the good relationship they had;
32.5 Watson’s conduct
constituted incompatibility which warranted action, and in view of
his position and high visibility
in the public domain, the employment
relationship could not be restored. Further having had regard for the
institution, it would
be difficult for SARU to continue a
relationship with an employee who had shown no remorse, and the trust
and confidence had broken
down.
32.6 SARU had therefore discharged the
onus placed on it to prove that Watson was guilty of the allegations
and that the trust relationship
was damaged and not repairable. He
found that the accumulative effect of the allegations against Watson
was sufficiently serious
to terminate his services.
The
review:
[33]
The grounds of review on which the award was challenged as captured
in the founding affidavit can be condensed as follows;
i. the Arbitrator failed to reach a
decision, based on the balance of probabilities;
ii. the Arbitrator committed a gross
irregularity and/or reached an unreasonable and/or unfair conclusion
in that he failed to apply
the accepted approach in order to
determine factual disputes;
iii. the Arbitrator exceeded his
powers in that he misconceived the nature of the inquiry before him
and failed to appreciate that
the case to have decided was whether
the relationship between Watson and SARU had become incompatible and
if so, what was the appropriate
sanction thereto;
iv. the Arbitrator failed to
appreciate that the question as to whether Watson’s employment
was rendered incompatible resorted
under the heading incapacity, and
was to be dealt with in terms of the principles established in that
regards.
v. the conclusion arrived at by the
Arbitrator that the relationship between Watson and SARU could not be
restored was not reasonable
in that:
a.
The management of SARU at no point in time testified that the trust
relationship had broken down;
b.
The management of SARU never testified that Watson’s management
style was incompatible with it;
c.
No evidence was presented that, but for the intervention of Chennells
and the formal disciplinary process, the grievances raised
by
relevant individuals would not have and could not be addressed;
d.
The aforesaid evidence together with the evidence of Chennells to the
effect that Watson had expressed a clear understanding
for the
difficulties experienced in relation to his management style ought to
have led to a reasonable conclusion that at all relevant
times during
the grievance process, he had demonstrated the ability to appreciate
the complaints of the relevant referees, but
in addition thereto,
demonstrated his willingness to address same;
e.
The Commissioner ought to have considered the fact that Watson had a
long service record with SARU and in addition thereto, he
had a clean
record;
[34]
Watson’s further
contention was that the issue for determination was therefore whether
the conduct detailed in the Notice
of Arbitration and his conduct in
general rendered him incompatible with the culture of environment at
SARU
[3]
.
It was further submitted that in order to dismiss him fairly on
grounds of incompatibility, SARU not only had to demonstrate the
actual alleged incompatibility but also that the incompatibility
persisted notwithstanding a fair process to address it, and that
the
allegations
per se
did not justify a conclusion that his employment with SARU was
rendered incompatible without compliance with general principles
for
dismissal based on fair reason. He further supported this contention
based on the fact that of the five referees called to
testify against
him at the arbitration proceedings, and only two indicated the
unwillingness to work with him.
[35]
It was further submitted on Watson’s behalf that in the event
the court found that the Arbitrator did not misconceive
the nature of
the inquiry and/ or did not misconceive the nature thereof to the
extent to constitute a gross irregularity, his
application of the
principles pertaining to incapacity/incompatibility in the context of
prevailing authorities nonetheless constituted
a gross irregularity
and rendered the award reviewable.
SARU’s
response and submissions:
[36]
In opposing the review, SARU moved from the premise that the
allegations of misconduct preferred against Watson were those
listed
in the Notice of Arbitration, being charges 1(a), 1(b), 1(c) and 3,
and that it could not therefore be correct that the
central issue for
determination or material issue related to the allegation of
incompatibility to the exclusion of other forms
of misconduct
alleged. In this regard, it was further submitted that;
i. The allegations of misconduct were
not dependent on any finding that Watson was incompatible and such
allegations were correctly
dealt with in terms of the law applicable
to misconduct cases.
ii. The allegation of a breakdown in
the relationship between Watson and the Referees and the consequent
incompatibility was only
dependent on an adverse finding that Watson
was guilty of misconduct, but was also dependent on adverse finding
regarding the manner
in which he had managed and/ or dealt with
Referees on his Department and whether they were unwilling to work
with him.
iii. The dismissal for incompatibility
was classified as a form of incapacity if the employee concerned is
not to blame for the
misconduct that rendered him incompatible. In
this case the evidence showed that Watson was to blame for the
conduct that rendered
him incompatible and such incompatibility was
rightly and reasonably treated as a misconduct by both SARU and the
Arbitrator.
iv. Watson’s conduct was grossly
unacceptable and had destroyed the working relationship. His conduct
did not arise from incapacity
but from misconduct.
[37]
SARU relied on the Code of Good Practise: Dismissal to demonstrate
that the Arbitrator followed the correct approach in terminating
the
employment relationship. It argued that the Arbitrator was alive to
the nature of incompatibility which he had classified as
misconduct,
and that the rationale for dismissing an employee who is unable to
work in harmony with his colleagues was the employer’s
right to
expect its employees to conduct themselves in a manner that is
acceptable to their colleagues. It was submitted that the
contract of
employment contained an implied term which stated that Watson would
not act in a manner calculated to cause disharmony
and a breakdown in
the employment relationship.
Evaluation:
[38]
The applicable test in review
proceedings is that of a reasonable decision maker, which the Labour
Appeal Court in
Fidelity
Guard Cash Management Services v CCMA and Others
[4]
reiterated in the following terms:
‘
If
it is an award or decision that a reasonable decision-maker could not
reach, then the decision or the award of the CCMA is unreasonable
and, therefore reviewable and could be set aside. If it is a decision
that a reasonable decision-maker could reach, the decision
or the
award is reasonable and must stand. It is important to bear in mind
that the question is not whether the arbitration or
decision of the
commissioner is one that a reasonable decision would not reach but
one that a reasonable decision maker could not
reach.’
[39]
In
Goldfields Mining
South Africa (Pty) Limited (Kloof Gold Mine v CCMA & Others)
[5]
,
it was held that
a
review court must ascertain whether the arbitrator considered the
principal issue before him/her; evaluated the facts presented
at the
hearing and came to a conclusion which was reasonable to justify the
decisions he or she arrived at.
In
assessing whether the result of an award is unreasonable, the
reviewing court should not adopt a piecemeal approach, and must
further enquire whether;
“……
..
(i) In terms of his or her duty to deal with the matter with the
minimum of legal formalities, did the process that the arbitrator
employed give the parties a full opportunity to have their say in
respect of the dispute? (ii) Did the arbitrator identify the
dispute
he or she was required to arbitrate? (This may in certain cases only
become clear after both parties have led their evidence)
(iii) Did
the arbitrator understand the nature of the dispute he or she was
required to arbitrate? (iv) Did he or she deal with
the substantial
merits of the dispute? (v) Is the arbitrator’s decision one
that another decision-maker could reasonably
have arrived at based on
the evidence?
[6]
[40]
In this case, I did not understand it to be
Watson’s case that the Arbitrator did not afford him an
opportunity to have his
full say in respect of the dispute. Having
had regard to the award, I am also satisfied, contrary to Watson’s
contentions,
that the Arbitrator correctly identified the
dispute he was required to arbitrate, i.e., that the issue to be
decided was whether he was guilty of the allegations levelled
against
him and if so, what would be the appropriate sanction.
[41]
To the extent that it was argued that the Arbitrator had acted
outside of his powers and thus committed a gross irregularity, it
is
not clear on what basis this allegation was made as there is nothing
in the Arbitrator’s analysis that indicates that
he had
exceeded his powers outside of his terms of reference as stipulated
in the parties’ pre-arbitration minute. The only
issue is
whether given the background of the issues, his terms of reference
and the allegations made, he came to a reasonable conclusion.
[42]
The question of whether the Arbitrator went about the wrong
way in considering the issues he was supposed to determine is
different
from whether he had considered those issues. Furthermore,
to the extent that Watson insisted that the Arbitrator misconceived
the
nature of the enquiry, this can only be in relation to how the
Arbitrator dealt with the issue of incompatibility arising from the
misconduct as alleged. I will address the issue of incompatibility at
some stage in this judgment.
[43]
The Notice of Arbitration contains three
main charges against Watson, viz, 1. ‘Grossly inappropriate
and/or unprofessional
and/or unbecoming behaviour and/or abusive
conduct’ in respect of further allegations under (a); (b) and
(c). Charge 2 flowed
from the allegations made in charge 1 and its
sub-charges, and pertains to whether the alleged conduct (if proven),
led to a breakdown
in his relationship with a majority of the
referees, which lead to ‘a situation of incompatibility on his
part arising from
his conduct’. Charge 3 also emanate from the
other charges, and where proven, the issue was whether the alleged
conduct had
the potential to bring the name and reputation of SARU
into disrepute.
[44]
Aligned to the above were the Arbitrator’s
terms of reference as contained in the pre-arbitration minute, which
required of
him to decide;
24.
Insofar as the Applicant admits to using “untoward”
language in the context of the entire address to the Referees
at the
particular session in relations to allegation 1(a), what action, if
any, should be taken against the employee?
25.
Insofar as the Applicant does not admit the remainder of the
allegations in 1(a) and the allegations 1(b), 1(c), 2 and 3:
25.1
Whether SARU has discharged the burden of proving such allegations or
whether they should be dismissed?
25.2
Only in the event that SARU discharge the burden of proving all or
any one of such allegations, what action, if any, should
be taken
against the Employee?
[45]
The
Arbitrator’s starting point was to identify and acknowledge
that he was faced with conflicting versions, which required
the
application of the principles set out in
Stellenbosch
Farmers Winery Group Ltd and Another v Martell & Kie SA and
Others
[7]
.
He further took account of Schedule 8 of the Code of Good Practice
and the guidelines set out therein, and the SARU’s disciplinary
Code and procedure, which governed the standard required of its
employees in the workplace.
[46]
In respect of the charge under 1 (a), the
Arbitrator took account that Watson had conceded that he had said
‘
f**** the selectors’
during the open session. Watson had however denied having said ‘
f****
their mothers’
. A reading of the
award indicates that the Arbitrator was alive to the principles
applicable to the resolution of disputed facts
and conflicting
versions before him. In my view, and upon a proper consideration of
the probabilities in respect of the conflicting
versions proffered by
Watson, Rametsi, Bonaparte and Coetzee as opposed to that of Peyper,
the Arbitrator appropriately assessed
the credibility and reliability
of the witnesses, and made a finding that the version of the three
ought to be rejected.
[47]
In the light of the above, I fail to appreciate
how the Arbitrator could have come to a different conclusion as to
whether Watson
had said ‘
f****
their mothers’
within the context
of everything else he had said. It is equally improbable that
Rametsi, Bonaparte and Coetzee could have heard
anything else that
Watson uttered but for ‘
f****
their mothers’
. Coetzee’s
version that people merely said ‘
flippant’
amongst other things within the context of Watson’s concession
was clearly even more improbable, and a lame attempt at sugar
coating
uncouth language. As the saying goes;
"You can put
perfume on a pig but it's still a pig"
.
It is improbable that she could not have heard
the profanities used by Watson when her other attitude was simply to
ignore it.
[48]
The Arbitrator’s conclusions
therefore that Peyper’s version was more probable are
unassailable, particularly within
the context of the Watson’s
penchant and others to use foul language, and there is no merit in
the contention that the yardstick
applied by the Arbitrator in
determining whether Watson’s witnesses’ evidence was
probable or not was not equally applied
to the evidence of Peyper.
[49]
The submissions made on behalf of Watson
that the foul language, and in reference to ‘
f****
the selectors’
was used within
the context of indicating to the referees that they should referee
what they see and not to impress the Selectors
is clearly without
merit and again, a lame attempt at justifying the use of foul
language. The fact that Watson had conceded that
he had said ‘
f****
the selectors’
speaks volumes of
his and witnesses’ denials. Even if there was any iota of truth
in his contentions, the fact that he did
not say ‘
f***
their mothers
’ does not make his
other part of the foul language less profound given the context
within which it was said and the audience
it was directed at.
[50]
Charge 1 (b) pertained to whether Watson
had humiliated Jadezweni following the screening of a previous match
he had officiated
in. The Arbitrator accepted it as being common
cause that Watson had said the words attributed to him, and the only
issue was whether
these were offensive and harmful. Watson takes
issue with the Arbitrator’s conclusions in this regard, and
contended that
the incident was not specifically meant to humiliate
Jadezweni; that the evidence led did not indicate that the utterances
were
abusive or factually wrong, and that any embarrassment felt by
Jadezweni was as a result of his own subjective response.
[51]
Having had regard to the Arbitrator’s
conclusions in this regard, the only basis the Arbitrator came to the
finding that Watson
was guilty under charge 1 (b), was that it was
common cause that he had uttered the words attributed to him in
respect of Jadezwane.
The Arbitrator had merely stated that he would
deal with this issue as part of his overall conclusion, but there is
nothing in
those conclusions that indicate that he did so. As to how
much weight the Arbitrator was supposed to attach to the context in
which
the remarks were made and the effect thereof is neither here
nor there, as Jadezweni’s subjective reaction to those remarks
prevailed in the absence of any evidence to suggest that the reaction
was unwarranted or exaggerated.
[52]
In respect of charge 1(c), the Arbitrator
appreciated that he was confronted with two conflicting versions in
regard to what Watson
had said to Rashivenga. It was argued on behalf
of Watson that he had persistently denied having uttered threatening
and abusive
comments to Rashivenge in their meeting on 28 August
2014, and that the latter’s reaction was initially that he had
viewed
those comments as ‘racial’ as he was of the view
that his other colleagues would not be treated in that manner. It was
further submitted that the Arbitrator failed to and/or unreasonably
failed to resolve the factual dispute in that regard, as it
was
apparent that Rashivenge had other reasons for leaving South Africa,
and had already made plans to leave prior to the alleged
incident due
to his belief that the ‘system’ had failed him in view of
issues surrounding his contract. It was further
argued that in any
event, the complaint by Rashivenge never formed part of the
Chennells’ investigations, and other than
these issues,
subsequent e-mails between Rashivenge and Watson indicated that the
two had made peace, inclusive of the two having
embraced and made
peace at the China Tournament.
[53]
It was correctly pointed out on behalf of
SARU that the fact that Watson had initially denied the allegation
and had thereafter
stated that he could have said the words
attributed to him but in a jocular fashion made his version
improbable and unreliable,
and further cast aspersions on his
credibility. The Arbitrator had followed this reasoning, and found
that to the extent that Watson
had conceded that he might have
uttered the words in question to Rashivenge but in a jocular fashion,
it was more than probable
that Watson had uttered the words in
question.
[54]
The Arbitrator based his reasoning on the
fact that Watson may have been displeased with Rashivenge’s
intentions to leave
for Australia, in that as a person of colour, he
was deemed to be a referee with great potential. The Arbitrator
concluded that
Watson had made the remarks without realising its
consequences, and there was no reason to believe that Rashivenge
could fabricate
his version and incriminate Watson falsely since the
two had a good relationship. In the light of Watson’s previous
instances
of making inappropriate remarks, the Arbitrator’s
conclusions that he was guilty of having uttered the words in in
question
my view cannot be faulted. It was common cause that
Rashivenge had confided in Jonker and Joubert after the incident, and
notwithstanding
Oelofse’s contention that Rashivenge was in the
habit of fabricating stories, there was no basis for the Arbitrator
to have
come to that conclusion. As to whether the remarks made
towards Rashivenge were threatening was an issue the Arbitrator
failed
to deal with. On the whole however, in respect of the
Arbitrator’s findings in this regard, there is no basis to
conclude
that these were not reasonable.
[55]
In the light of the above, I am satisfied
that the Arbitrator in finding Watson guilty of the charges levelled
against him by SARU
had dealt with the enquiry set out in the
pre-arbitration minute, which was to establish whether SARU had
discharged the burden
of proving the allegations. Furthermore, there
can be no doubt that the conduct complained of, especially in regard
to the events
at both the open and closed sessions of the High
Performance Camp should be viewed as grossly inappropriate,
unprofessional and
unbecoming. Even if the spewing of obscenities was
part of ‘rugby culture’ as alleged by Watson, the nature
of the
crude language used by him in the presence of foreign quests
was inexcusable, and the consequences thereof, without the need for
any other evidence, was to bring SARU’s name into disrepute,
bearing in mind that the event was hosted by it.
[56]
Charge 2 pertained to whether the conduct
complained of led to a breakdown of Watson’s relationship with
the referees to the
extent that they were no longer willing to work
with him. The second leg of the charge was whether the conduct
complained of had
led to a possible incompatibility on Watson’s
part. As correctly pointed out on behalf of SARU, the issue of the
breakdown
of the relationship with the referees and resultant alleged
incompatibility cannot be viewed in isolation from the allegations of
misconduct as already dealt with. As shall further be illustrated
below, there is a fine line between incompatibility and misconduct.
[57]
It
was submitted on behalf of Watson that the Arbitrator’s
conclusions in this regard were not reasonable, and that he had
committed a gross irregularity specifically since he had misconceived
the nature of the enquiry.
To
the extent that it was argued on behalf of Watson that the award was
reviewable on account of the alleged gross irregularity,
it is trite
that
gross
irregularity should concern the conduct of the proceedings rather
than the merits of the decision
[8]
,
and further that a gross irregularity is also committed when a
decision-maker misconceives his/her mandate or his/her duties in
conducting the enquiry
[9]
.
[58]
As already stated, I did not understand it
to be Watson’s case that he did not get a fair hearing, and any
allegation of irregularity
on the part of the Arbitrator is not about
the conduct of the proceedings but rather the manner with which he
had undertaken the
enquiry in respect of the issue he was required to
determine, and more particularly, the issue surrounding
incompatibility as opposed
to ordinary misconduct.
[59]
In dealing with the questions surrounding
the alleged breakdown of relationships and incompatibility, the
Arbitrator did so within
the context of considering the appropriate
sanction. In my view, this approach cannot be faulted in that if it
were to be found
that there was indeed a breakdown in relationships
between Watson and the referees, and which had led to
incompatibility, it would
then have been within that context that the
Arbitrator had to determine the appropriate action to be taken in
accordance with paragraph
25.2 of the pre-arbitration minute.
[60]
As per the Notice of Arbitration, the
allegation of a breakdown of relationship was in reference to the
Elite and National Panel
referees, and not between Watson and SARU.
It is accepted that where it is found that fellow employees can no
longer have a trust
relationship with each other, this can also
impact on the employment relationship between the concerned employee
and the employer.
However, for the purposes of the enquiry before the
Arbitrator, and from the notice of arbitration itself, the focus of
the trust
relationship was between Watson and the referees. In this
regard, the Arbitrator in arriving at his conclusions took account of
the following factors;
i.
the allegations made in the grievance by
the ‘
twenty-three people who
allegedly attested to Watson’s alleged dictatorial and
bombastic management style’
.;
ii.
Watson’s communication style which
was described as arrogant, demeaning; threatening and abusive, and
which had alienated
him from the referees;
iii.
The fact that Rashivenge was not prepared
to come back to South Africa whilst Watson was still in charge;
iv.
the allegation that Watson had lost the
changing room
v.
Some of the referees wanted to resign after
the Rugby World Cup if Watson was still in charge
[61]
It was submitted on behalf of Watson that
of the five referees called upon by SARU to testify, only Jonker and
Rashivenge indicated
that they were not willing to work with him, and
even then, Rashivenge’s motivation for his expressions was
subject to scrutiny.
It was however submitted on behalf of Watson
that the Arbitrator acted unreasonably by simply relying too much on
the Chennells’
report in respect of the other allegations
against Watson.
[62]
The Chennells’ report or
recommendations formed part of the documentary evidence before the
Arbitrator. It is accepted that
not all 24 referees would have been
expected to testify in the proceedings, and the issue therefore is
what weight was the Arbitrator
to attach to the allegations made
before Chennells and the findings made, to the extent that it was
alleged that most referees
did not want to work with Watson.
[63]
In
Impala Platinum
Limited v Zirk Bernardus Jansen & Others
[10]
,
it was confirmed
that
it is not correct that an employer must always lead evidence to
establish a breakdown in the trust relationship in order for
a
sanction of dismissal to be appropriate. It was held that
it
must be implied from the gravity of the misconduct that the trust
relationship had broken down and that a dismissal is the appropriate
sanction
[11]
.
Furthermore, it has been held that
the
breakdown of the trust relationship is not solely dependent on what
the employer says, and that irrespective of the employers’
testimony in this regard, the Commissioner is still enjoined to
enquire whether that is indeed so
[12]
.
[64]
In my view, and to the extent that the
allegations of misconduct/incompatibility in this case were made by
other employees, I can
see no reason why the above principle should
not be applicable as between employees. Thus, the issue therefore is
whether to the
extent that the complaints as consolidated in the
grievance letter, and as further established by the Arbitrator to
have merit,
were of such a nature that it could be implied that the
relationship between Watson and the Elite and Panel Referees had
broken
down, leading to incompatibility.
[65]
The overall evidence, or more specifically
as led by Peyper, Joubert, Jonker and Rashivenge points Watson as
having a propensity
to gratuitously use obscenities whenever dealing
with the referees whether in formal gatherings or as individuals. The
events at
the open and closed sessions in November 2014 at the
High-Performance Camp points in that direction. Jonker’s
experience
in that regard especially as it happened in the presence
of his family further bears testimony to Watson’s disregard for
anything civil whenever talking to the referees. Furthermore, the
fact as attested to by Jonker that Watson could remove referees
from
matches at a whim is indicative of his management style, which it can
safely be said confirms allegations of a dictatorship
and abuse of
authority. Rashivenge was in any event reminded by Watson of how
powerful he was. I am therefore prepared to accept
that overall, and
without the necessity of testimony of all the referees, Watson’s
management style can be said to not only
result driven and robust as
alleged by Coetzee, but also vulgar, autocratic, demeaning,
unprofessional and to some extent abusive.
[66]
As to whether the above conclusions can be
said to point to an environment of incompatibility (the second leg of
the enquiry under
charge 2) and whether a dismissal was appropriate
in the circumstances must be examined within the context of
principles applicable
where incompatibility is alleged.
[67]
It
was argued on behalf of SARU that a dismissal for incompatibility is
classified as a form of incapacity if the employee concerned
is not
to blame for the conduct that renders him incompatible. It was
further argued that a dismissal for the same issue will be
classified
as a form of dismissal for misconduct, if the employee concerned is
to blame for the conduct that renders him incompatible.
In this
regard, it was argued that this should be the case where the conduct
is grossly unacceptable and it destroys the working
relationship
[13]
.
To this end, it was further argued that since Watson was to blame for
the conduct that rendered him incompatible, such incompatibility
was
correctly dealt both by SARU and the Arbitrator as a form of
misconduct deserving a dismissal.
[68]
Watson’s main contention was that the
Arbitrator failed to appreciate that the material issue that had to
be determined was
whether the question his employment was rendered
incompatible resorted under the heading of ‘incapacity,’
and that
it was to be dealt with in terms of the principles
established in that regard.
[69]
Incompatibility arises from a particular
set of facts and cannot be viewed in isolation. As pointed out on
behalf of SARU, it cannot
be correct that the issue for determination
or the material issue, related to the allegations of incompatibility
to the exclusion
of misconduct proven. In my view, whether
incompatibility is to be treated as a form of misconduct or
incapacity or both needs
to be determined within the framework of
what that concept entails.
[70]
In terms of section 188 of the LRA, the
dismissal of an employee is unfair unless the employer can show that
the reason for such
a dismissal was related to the employee’s
conduct, incapacity or the employer’s operational
considerations. Each of
these requires a particular procedure to be
followed before a dismissal can be deemed to be justified.
[71]
The LRA does not make provision for the
concept of incompatibility, nor does it define incapacity. It is thus
left to the Courts
and dispute resolution fora upon a consideration
of the facts of each case, to determine where this species of conduct
falls in,
to the extent that it has been recognised as a valid ground
for dismissal. The danger however is that incompatibility is
invariably
about human behavioural traits, and it is always going to
be impossible to pigeonhole any specific conduct as either
incompatibility,
misconduct or incapacity without a proper
consideration of the facts of each case.
[72]
Various meanings have been ascribed to
incompatibility within the context of the workplace. It can refer to
an employee’s
inability to maintain a harmonious relationship
with his / her colleagues, or when the employee is unable to adapt to
the company’s
‘corporate culture’, which in my
understanding refers to norms and standards as shall be set and
implemented by the
employer.
[73]
The
essence of incompatibility has been seen to be an irremediable
breakdown in the working relationship caused through personality
differences, an inability to work together in harmony, friction
between employees, a discordance in approaches and the like
[14]
.
This obviously must be distinguished from innocuous,
mild
or harmless eccentricity or exhibitionism, which might cause
irritation, annoyance, unease or minor discomfort to other employees
or management
[15]
.
[74]
The
rationale for the dismissal of employees accused of causing
disharmony is the right of an employer to expect its employees to
adapt and adhere to a certain set of norms and standards, and to
conduct themselves in a manner harmonious and acceptable to everyone
in the workplace. Thus, a dismissal would be considered fair if the
ultimate results of that incompatibility is to irretrievably
break
down relationships in the workplace
[16]
.
[75]
The onus is on the employer alleging incompatibility to
demonstrate that the employee in question was responsible
substantially
for the disharmony or breakdown of relationships at the
workplace, and that incompatibility as proven constituted a fair
reason
for the dismissal in the circumstances of a given case. The
fairness of the dismissal in incompatibility cases, turns on a
variety
of factors including but not limited to:
i. the nature and the seriousness of
the conduct of the employee in causing disharmony with the others;
ii. the assistance given to the
employee to address his or her problem. This may include counselling
and facilitating a relationship
building by objective exercise.
iii.
placing the employee in another
alternative position if the remedial action has failed.
[17]
[76]
I
subscribe to the view that incompatibility should be deemed as a
species of incapacity
[18]
,
as it signifies a situation where co-workers find it unbearable to
tolerate another employee’s behaviour, demeanour and
general
personality, thus negatively affecting work performance of both the
employee concerned and that of his co-workers.
[77]
However,
the
mere fact that an
employee’s behaviour or conduct has been deemed incompatible
does not necessarily imply that such an employee
should immediately
be dismissed, as
the
employer is required to seek ways and means of reversing the
incompatibility complained of. If the employee is believed to
be the cause of the problem, he/she has the right to be advised that
there is a problem, and be given a chance to resolve it, as
a
dismissal is always considered a measure of last resort. Thus prior
to
reaching a decision
to dismiss, the employer must make some sensible, practical and
genuine efforts to effect an improvement in
interpersonal
relationships with a view of correcting the incompatibility
complained of
[19]
.
This is in line with the constitutional right to fair labour
practice, as further finding expression under the provisions of
sections 185 and 188 of the LRA, and further in line with Item 10 of
Schedule 8, Code of Good Practice: Dismissal.
[78]
It further follows from the above principles that
the
employer's own strong feelings about incompatibility or the feelings
of the fellow employees, are on their own not sufficient.
This is so
in that Courts should guard against instances where both employers
and employees make allegations of incompatibility
against another
employee for spurious if not malicious reasons. A workplace brings
together people with different personalities,
cultures,
characteristics and the like. It is a powder keg waiting to explode
because of personality clashes and other differences
amongst
employees that have nothing to do with work. It is therefore not
uncommon for co-employees to dislike each other for a
variety of
reasons other than those based on work performance, and to use an
excuse of incompatibility as a way of getting rid
of that employee.
[79]
To the extent that it was argued on behalf
of SARU that the circumstances of this case should be treated as a
form of misconduct
since Watson was to blame for the conduct that
rendered him incompatible, it is again emphasised that there is a
fine line between
instances of incompatibility and ordinary
misconduct
. In my view, and further
in line
with the principles set out above, the starting point is to treat any
allegation of incompatibility as a case of incapacity.
It is only
once measures put in place to address and reverse the incompatibility
complained of have failed that it can be treated
as misconduct. Thus,
once those measures, accompanied by set norms and standards have
failed to yield results, and the employee
continues with his or her
errant ways, nothing prevents an employer from dealing with that
employees’ subsequent behaviour
as misconduct. In this case
therefore, the onus was on SARU to demonstrate that it had taken
every possible means to address the
conduct of Watson, and that these
measures had not yielded any result.
[80]
The above conclusions in regard to conduct
classified as incompatibility should however be distinguished from
conduct that would
ordinarily be classified as misconduct, even if
such conduct takes place within the overall context of
incompatibility. In this
regard, it is acknowledged that there can be
a single incident which signifies an overlap between incompatibility
and ordinary
misconduct, that would require a different approach, or
in the alternative, some conduct even if viewed as eccentric might be
downright
misconduct rather than incompatibility. The facts of each
case will obviously be determinative.
[81]
In this case for instance, and particularly
in respect of charge 1 (c), the allegation was that Watson had said
to Rashivenge; “
I will f**** you
up… I will kill you if you turn your back on South Africa……
I will destroy you….”
. The
profanities, as argued on behalf of Watson may form part of
incompatibility, and are distinguishable from the threats of violence
made within the same context, which would ordinarily be construed as
misconduct. I however hold the view that the threats of violence
made
with the profanities is indicative of the gross nature of the
misconduct, and it would nonsensical to distinguish incompatibility
from misconduct in that context. I will revert to this point at a
later stage in this judgment.
[82]
For the purposes of a determination of the
issue surrounding incompatibility however, I accept without
reservation that Watson’s
general demeanour in dealing with the
referees was unprofessional, uncouth and bordered on the despicable
as demonstrated by the
events at the High-Performance Camp and as
further attested to by Jonker. There can therefore be no doubt as
demonstrated through
the grievance submitted by the referees that
Watson’s conduct had clearly led to a point of incompatibility,
where it had
become untenable for other referees to work with him.
[83]
There
are however concerns with the manner with which the Arbitrator dealt
with the issue of incompatibility in this case. In arriving
at the
conclusion that a dismissal was the appropriate, the Arbitrator took
account of the guidelines stipulated in
Sidumo
& others v Rustenberg Platinum Mines Ltd & Others
[20]
and the fact that
SARU
had a Disciplinary Code and Procedure which provided for progressive
disciplinary measures in cases related to misconduct.
The arbitrator
further considered the fact Watson had long service with no
disciplinary record, and the fact that he had made immense
contribution to referees’ department as also attested to by
witnesses who had testified against him. The Arbitrator was not
persuaded by these factors, and held that even if other individuals
were guilty of the same conduct, this was immaterial as Watson
was a
senior employee and the ‘buck stopped with him’. The
Arbitrator’s view was further that Watson was incapable
of
changing, and that he had not shown any genuine remorse nor had he
apologised to those he had offended.
[84]
Significant with the Arbitrator’ conclusion was that he
had regard to the essence of the concept of incompatibility, and
acknowledged
that an employer must make sensible and practical means
to improve interpersonal relations. Inexplicably however, the
Arbitrator
concluded that; ‘
In the above circumstances with
the challenges faced by SA Rugby I am not convinced that the latter
is achievable. I have particularly
considered the position that
Watson held and his high visibility in public domain’.
It
is not apparent from these conclusions as to what ‘
circumstances’
the Arbitrator was referring to. Furthermore, Watson’s
public
profile
, could not for all intents and purposes, have trumped his
right to a due process to the extent that the conduct in question was
viewed as incompatibility. As correctly pointed out on his behalf, it
was at that point that Arbitrator misconceived the nature
of the
enquiry or undertook the enquiry in the wrong manner. It is trite
that once this happens
,
the conclusions reached by the
Arbitrator cannot by all accounts be reasonable.
[85]
The Arbitrator, despite acknowledging the fact that prior to
dismissing on account of incompatibility, SARU was obliged to put
measures
in place to rectify the incompatibility complained of,
nevertheless failed to consider that this was not done. His
conclusions
that any measures in that regard would not have yielded
any results in view of ‘
the challenges faced by SARU’
are not in my view reasonable.
[86]
It was common cause that until at a point when the referees
lodged a grievance, SARU had not been made aware, at least
officially,
that there was a problem with Watson’s conduct. A
second factor which the Arbitrator overlooked was that the Chennells’
investigation merely resulted with a report and recommendations.
Significant with these recommendations were the following;
‘
An
assessment should be made by the designated Chairperson as to whether
Watson has the ability to continue to manage the department
in the
light of the polarization between himself and the other referees.
This point of assessment is one of “incapacity”
arising
from Watson’s possible incompatibility with his department
going forward;
The
assessment will require analysis whether Watson has both the
inclination and capacity to alter his management style and to modify
his interactions with his subordinates, in such a way that the trust
relationship between himself and his subordinates can be restored;
…
This
process might include consideration for the modification of Watson’s
role to minimise his managerial oversight, a structured
intervention
to guide and measure fundamental change on his part or termination of
his service on grounds of incapacity and incompatibility;’
[87]
In the light of the above, it follows that
the sanction of dismissal was not the only option available to the
Arbitrator.
To the extent that it was recommended that any
measures were to be taken, it was for the Arbitrator to first
determine whether,
in the light of SARU’s own disciplinary code
and procedure, measures had been taken to correct the behaviour
complained of,
and whether Watson had responded positively to those
measures or not. It was therefore not reasonable for the Arbitrator
to conclude
that Watson was incapable of changing when he had not
been afforded an opportunity to do so. This view is further fortified
by
the following considerations;
i. There can be no doubt that given
Watson’s personality and conduct over the years, SARU had
condoned it, whether wittingly
or inadvertently;
ii. Until the arbitration proceedings,
SARU had not expressed its discontentment with Watson’s
conduct, and had not at all
raised any trust issues with him.
iii.
SARU’s
CEO, Roux, had declined to commit himself when asked whether the
relationship with Watson had become incompatible.
Oelofse, the Head
of Performance Review, equally failed to give evidence as to whether
the relationship between with Watson had
broken down.
For SARU
therefore to suddenly allege that a trust relationship between it and
Watson was broken as a consequence of the grievance
lodged was
disingenuous and opportunistic, even moreso since the grievance was
lodged in January 2015 when the main incidents complained
of took
place in November 2014;
iv. Uncontroverted evidence indicated
that the use of uncouth language was not uncommon within SARU
circles, including by senior
officials. For SARU to contend otherwise
is equally disingenuous.
v. The submission made on behalf of
Watson however that rugby is a ‘
brutal, confrontational,
competitive and macho
’ sport, hence its environment
permitted the use of such language is devoid of any truth. The
gratuitous use profanities cannot
by any stretch of imagination be
part of any corporate or sports culture. It is accepted that
sportspeople are not saints who have
been cocooned from the
vulgarities of the game. They are entitled to express their
frustrations and disappointments when things
do not go their way on
or off the sports field. However, in doing so, there is no
justification for them to behave like veritable
barbarians and be
uncivilized and obnoxious at any given opportunity. There is indeed a
limit to how much obscenities the ear can
take, irrespective of any
context or environment.
Professional sportspeople
in general are ordinarily regarded as role models, especially to
young people. I do not think being vulgar
and obscene makes one a
better role model.
I am therefore in agreement with the
Arbitrator’s observation that Watson as a leader should have
set a better example, irrespective
of whether foul language was
liberally used within SARU circles or not. He did not have to be
uncouth to be a good manager.
vi. The Chennells’ report
indicated that Watson had acknowledged,
albeit
grudgingly,
that he needed to change his ways. This however was not a basis upon
which to reject any prospects of him changing
his ways, as he needed
to be afforded that opportunity in any event. This is so in that the
report and the arbitration proceedings
was the first opportunity for
SARU to appreciate the magnitude of the problem the referees had with
Watson. Significant with the
Chennells’ investigations and the
arbitration proceedings was that Watson had consistently, or at least
repeatedly, shown
contrition and a willingness to atone for his
behaviour. The Arbitrator acknowledged this fact, but however
concluded that the
show of contrition was belated on the basis that
he ‘
got the impression that he did not realise the
seriousness of the allegations against him
’. In coming to
that conclusion, the Arbitrator had regard to the statement made by
Watson outside of the arbitration proceedings
to the effect that;
‘
you can’t teach me at the age of 50 to change my
communication style’
. The reliance on this statement in my
view was misplaced and amount to nick-picking. That statement arose
from part of the grievances
lodged against Watson, and was part of
the overall allegation of incompatibility before Chennells. It could
therefore not have
been indicative of his alleged unwillingness to
change subsequent to the investigations or the arbitration
proceedings. Thus, there
was no basis for the Arbitrator to conclude
that any remedial action would not have had any effect, when no such
action had not
been taken.
vii. The Arbitrator in coming to his
conclusions was further to be guided by paragraph 25.2 of the
parties’ pre-arbitration
minutes, which provided that; ‘
Only
in the event that SARU had discharged the burden of proving all or
any one of such allegation, what action, if any, should
be taken
against the Employee?’
Thus, to the extent that it was
established that Watson was guilty of conduct under charges 1 (a); 1
(b) and 1 (c), the Arbitrator
was therefore required to first assess
whether there was a breakdown in the relationship between Watson and
the referees, and thereafter
to assess whether there was
incompatibility. Having found that there was indeed a breakdown in
the relationship which had led to
incompatibility, various options
were then available to the Arbitrator in view of the nature of the
proceedings. Thus, in line
with the principles and views set out
above in respect of the issue of incompatibility, and the
Arbitrator’s powers under
both section 138 (9) of the LRA, the
terms of reference, and the Chennells’ recommendations, it was
open to him to rule as
to what action, if any may be taken against
the employee. Those powers in my view were not however limited to a
sanction of a dismissal,
and the finding of the Arbitrator in the
light of the above considerations cannot be deemed to be reasonable.
[88]
It has already been stated that the issue of incompatibility
ought to be distinguished from that of ordinary misconduct, and to a
large extent, the Arbitrator failed to deal with that distinction in
concluding that the dismissal was appropriate, and essentially
conflated these issues. In my view, and in accordance with the
Chennells’ recommendations, the remarks made to Rashivenge
within the context of the threats were indeed serious, and the
Arbitrator had found Watson guilty of the conduct in question.
[89]
The issue however is whether the Arbitrator should have
decided on a dismissal in that regard. I hold the view that a
dismissal
for this offence was not the appropriate sanction, moreso
since the Arbitrator had conflated the issues for determination. The
only issue emanating from his reasoning pertaining to the incident
with Rashivenge was that he was no longer prepared to come back
to
South Africa because of that incident. At the same time however, I am
prepared to accept that the incident arose out of Rashivenge’s
anxieties about his contract, and at the time, the evidence as
gathered by Chennells was that Rashivenge had in any event, made
an
informed decision to leave for Australia. Other than that issue, not
much is stated by the Arbitrator as to the reason that
incident on
its own was deserving of the ultimate penalty, other than that it was
taken into account in the overall consideration
of the allegations.
In my view, a lesser penalty would have sufficed, given other factors
to be taken into account when considering
such a sanction.
Conclusions:
[90]
Having considered this matter and the conclusions reached
throughout this judgment, I am of the view that the award of the
Arbitrator
ought to be set aside on the basis that the conclusions
reached therein do not fall within a band of reasonableness,
particularly
in regards to the issue surrounding incompatibility. I
am further satisfied that even if Watson was properly found guilty on
the
charge pertaining to the incident with Rashivenge, the
Arbitrator’s decision to impose a sanction was not one that a
reasonable
decision maker could have made in the light of the entire
evidence before him.
[91]
This then brings me to the question of relief. Watson seeks an
order substituting the award of the Arbitrator with an order
retrospectively
reinstating him with back-pay. Since I hold the view
that the circumstances of this case permit an order of reinstatement,
I am
however not convinced that such an order should be with full
back-pay for a variety of reasons. These are that Watson had not
approached
the arbitration proceedings with clean hands. This is
gleaned from the correct findings made by the Arbitrator on the
question
of guilt in respect of the charges, and my conclusions in
respect of charge 3 that indeed Watson’s conduct at the open
session
at the High-Performance Centre camp in November 2014 brought
the name and reputation of SARU into disrepute. It is further
considered
that during the arbitration proceedings, Watson, as duly
and ably assisted by his witnesses, had sought to deny the obvious,
thus
necessitating a protracted inquiry. In the light of these and
other considerations as already dealt with in this judgment, it is
deemed appropriate to order Watson’s reinstatement but with
limited back-pay, coupled with a sanction in respect of the
Rashivenge’s incident.
[92]
I have further had regard to considerations of law and
fairness regarding the issue of costs, and I am satisfied that in the
light
of the conclusions reached on the merits, each party must carry
its own costs.
Order:
[93]
Accordingly, the following order is made;
1. The Arbitration award dated 27 June
2015 issued by the Third Respondent under case number WECT 4145-15 is
reviewed, set-aside
and substituted with the following order;
(a)
‘Andrew Watson is found guilty under charges 1 (a), 1 (b) and 1
(c); and 3 as stipulated in the Notice of Arbitration
(b)
Andrew Watson is to be issued with a Final Written Warning in respect
of the guilt finding under charges 1(c) and 3’
2. The First Respondent is ordered to
reinstate Watson in its employ, on the same terms and conditions as
applicable to his employment
prior to his dismissal.
3. The reinstatement order as above
shall operate with retrospective effect.
4. Back-pay due and payable to Watson
as a result of the order of retrospective reinstatement as above
shall be limited to six months’
salary, at the rate of his pay
as applicable as at 27 June 2015.
5. Each party is to pay its own costs.
___________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: Adv. C. Goosen
Instructed
by: Van Velden – Duffey Inc
For
the First Respondent: Mr. I Gwauza of Edward Nathan Sonnenbergs
[1]
NHL
Hockey Legend, Gordie Howe
[2]
Labour Relations Act 66 of
1995
[3]
In reliance
on
Jabari vs Telkom
SA (PTY) LTD (2006) ILJ 184 LC;
and
National Union of
Mineworkers & Another v Libanon Gold Mining Co Ltd (1994) 15 ILJ
585 LAC:
[4]
[2008] 3 BLLR 197
(LAC)
at
para 97.
[5]
[2007] ZALC 66
;
[2014] 1
BLLR 20
(LAC)
at
para 16
[6]
At para 20
[7]
2003 (1)
SA 11 (SCA)
[8]
Herholdt
v Nedbank Limited (COSATU as Amicus Curiae)
2013 (6) SA 224
(SCA)
at
para 10
.
[9]
See
Head of the Department
of Education v Mofokeng and Others
[2015] 1 BLLR 50
(LAC)
at
paragraphs 30 – 33 where Murphy AJA held that;
“
[30] The
failure by an arbitrator to apply his or her mind to issues which
are material to the determination of a case will usually
be an
irregularity. However, the Supreme Court of Appeal (“the SCA”)
in Herholdt v Nedbank Ltd and this
court in Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others
have held that before such an irregularity
will result in the
setting aside of the award, it must in addition reveal a
misconception of the true enquiry or result in an
unreasonable
outcome.
And,
[33]
Irregularities or errors in relation to the facts or issues,
therefore, may or may not produce an unreasonable outcome or
provide
a compelling indication that the arbitrator misconceived the
inquiry. In the final analysis, it will depend on the materiality
of
the error or irregularity and its relation to the result. Whether
the irregularity or error is material must be assessed and
determined with reference to the distorting effect it may or may not
have had upon the arbitrator’s conception of the inquiry,
the
delimitation of the issues to be determined and the ultimate
outcome. If but for an error or irregularity a different outcome
would have resulted, it will ex hypothesi be material to
the determination of the dispute. A material error of this
order
would point to at least a prima facie unreasonable result.
The reviewing judge must then have regard to the general
nature of
the decision in issue; the range of relevant factors informing the
decision; the nature of the competing interests
impacted upon by the
decision; and then ask whether a reasonable equilibrium has been
struck in accordance with the objects of
the LRA. Provided the right
question was asked and answered by the arbitrator, a wrong answer
will not necessarily be unreasonable.
By the same token, an
irregularity or error material to the determination of the dispute
may constitute a misconception of the
nature of the enquiry so as to
lead to no fair trial of the issues, with the result that the award
may be set aside on that ground
alone. The arbitrator however must
be shown to have diverted from the correct path in the conduct of
the arbitration and as a
result failed to address the question
raised for determination.”
[10]
(JA100/14)
[11]
at para 15
[12]
Barloworld
Logistics v Ledwaba NO
(JA119/14)
[2016]
ZALAC 17
(11 May 2016)
at
para 20
[13]
In
reference to Grogan, Dismissal, Second Edition, 2014 at Page 533
[14]
Jabari vs Telkom SA (Pty)
Ltd
2006 10 BLLR 924
;
Lubke v
Protective Packaging (Pty) Ltd
(1994)
15
ILJ
422
(IC));
Mgijima
v Member of the Executive Council Gauteng Department of Education
and Others (JR1894/2011) [2014] ZALCJHB 414 (27 October
2014)
at
para 70;
Jardine
vs Tongaat Hulett Sugar Limited (2002, 23 ILJ 547)
[15]
Joslin v Olivetti Systems &
Networks Africa (Pty) Ltd (1993) 14 ILJ 227 (IC) At par E-J:
[16]
Wright v
St Mary's Hospital (1992) 13 ILJ 987 (IC)
[17]
Mgijima
at
para 71
[18]
See
Le
Roux and van Niekerk in The South African Law of Unfair
Dismissal
(1994)
at 285-6;
Jabari v
Telkom SA (PTY) LTD (2006) 27 ILJ 1854 LC
[19]
Lubke v Protective
Packaging (Pty) Ltd (1994) 15 ILJ 422 (IC)
at 429D-E;
Hapwood v
Spanjaard Ltd
[1996] 2 BLLR 187
(IC)
at 196-7.
[20]
(2007) 28 ILJ 2405 (CC)
at para 75-79 and 179 -183