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[2017] ZALCJHB 482
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Mnguni v Mbekwa NO and Others (JR1993/13) [2017] ZALCJHB 482 (27 October 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
no: JR 1993 / 13
In
the matter between:
TUMISANI
PATRICK
MNGUNI
Applicant
and
COMMISSIONER
PEARL MBEKWA N.O.
First
Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
Second Respondent
WESTONARIA
LOCAL MUNICIPALITY
Third
Respondent
Heard:
20 April 2016
Delivered:
27 October 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 – arbitrator’s decision regular and sustainable
– award upheld
Bargaining
council arbitration proceedings – Review of proceedings,
decisions and awards of arbitrators – assessment
of evidence by
arbitrator – assessment and determination of evidence
unassailable – findings must stand
Misconduct
– intimidation and insolence – principles considered –
employee clearly insolent and behaving in intimidatory
manner –
employee guilty of misconduct – award upheld
Dismissal
– consideration of appropriate sanction – misconduct
gross – dismissal a fair and appropriate
sanction in the
circumstances – award upheld
Review
application – part of record missing – consequences to
review application – in the interest of the parties
to decide
review on the merits
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
This is one of those matters that seems to
be never-ending. The applicant was dismissed by the third
respondent as far back
as 3 March 2009, now approaching a decade ago,
and has twice turned in the bargaining council and once in this
Court. Once
again, this unfortunately is an example of the kind
of situation that simply does not fit in comfortably with the
objective of
speedy resolution of employment disputes. Hopefully this
matter can now be concluded.
[2]
What
is now before me to decide is a review application by the applicant
to review and set aside an arbitration award made by the
first
respondent in her capacity as an arbitrator of the South African
Local Government Bargaining Council (‘the second respondent’).
This application has been brought in terms of Section 145, as read
with Section 158(1)(g), of the Labour Relations Act
[1]
(‘the LRA’).
[3]
As touched on above, this matter has as its
origin the dismissal of the applicant by the third respondent on four
charges of misconduct,
on 3 March 2009. The applicant
challenged his dismissal as an unfair dismissal to the second
respondent, and was successful
in that challenge. In an
arbitration award dated 26 February 2010, arbitrator Khoza appointed
by the second respondent to
arbitrate the matter found that the
applicant’s dismissal was substantively unfair, and directed
that the applicant be reinstated.
The third respondent launched
a review application to challenge this arbitration award on 22 April
2010, which application was
brought under case number JR 940 / 10.
[4]
The third respondent’s review
application under case number JR 940 / 10 ultimately came before
Basson J for determination,
on 24 January 2012. On this
occasion, the third respondent in turn was mostly successful.
Basson J granted an order
dismissing the third respondent’s
review application pertaining to charges 1 and 3 in respect of the
misconduct for which
the applicant was dismissed. But the
learned Judge upheld the third respondent’s review application
where it came to
charges 2 and 4 in respect of the misconduct for
which the applicant was dismissed. The learned Judge remitted
the matter
back to the second respondent for determination
de
novo
before another arbitrator, but
only in respect of charges 2 and 4.
[5]
The dispute then indeed proceeded back to
the second respondent, and on this occasion, the first respondent was
appointed as arbitrator
to decide the matter. The dispute
came before the first respondent for arbitration on 10 and 28 August,
17 October,
19 November, and 12 December 2012. The arbitration
continued on 28 February, 29 April, and then concluded on 10 and 11
July
2013. Following the conclusion of the arbitration
proceedings, and in an arbitration award handed down on 30 August
2013,
the first respondent found in favour of the third respondent
and decided that the applicant’s dismissal by the third
respondent
was fair. The first respondent then dismissed the
applicant’s unfair dismissal claim. It is this determination of
the first
respondent that gave rise to the current review
application.
[6]
The
applicant’s review application was filed on 16 September 2013,
and was thus brought within the 6(six) weeks’ time
limit under
Section 145
[2]
of the LRA. The review application is accordingly properly
before this Court for determination. It must however be stated,
from
the outset, that the first respondent found that the applicant had
only committed the misconduct in respect of charge 4.2
of the charges
levied against him, and upheld his dismissal as being fair on that
charge only. It is therefore only necessary
to consider the
relevant background facts relating to this charge, which I will
proceed to summarize next.
The
relevant background
[7]
The applicant commenced employment with the
third respondent on 16 February 2007, and was employed as a VIP
protector in the third
respondent’s mayoral department.
[8]
The misconduct for which the applicant was
dismissed took place on 18 August 2008. On that day, the
applicant attended at
the third respondent’s testing station,
where he conducted himself in an unacceptable manner, which will be
elaborated on
below.
[9]
Prior to these events, there had been a
history of the applicant coming to the testing station and
misbehaving. Johanna Magrieta
Moolman (‘Moolman’),
a drivers’ licence testing officer employed at the testing
station, stated that some time
before the incident giving rise to the
charge against the applicant, she found the applicant in the cash
office, where only the
cashiers are allowed. When Moolman asked
him to leave the cash office, he told her that he was her boss and
behaved in a
rude and aggressive manner towards her.
[10]
Michael Freddie Schoeman (‘Schoeman’)
was the testing station manager at the time. Schoeman had been
told by employees
(which included Moolman, and two of the cashiers
being Mrs Steenkamp and Mrs Molekwe) that a certain individual had
come to the
testing station, accessed restricted areas, and behaved
in a rude and aggressive manner. These employees were referring
to
the applicant, but Schoeman did not know who he was. Schoeman
stated that he told employees that if this person came again, they
should call him.
[11]
On 18 August 2008, Mrs Steenkamp called
Schoeman to tell him that the individual concerned was there again.
Schoeman left
what he was doing and found the applicant in the cash
office where Molekwe sat. Schoeman asked the applicant who he
was.
The applicant then informed Schoeman that he (the
applicant) was their new boss and they all had to listen to him.
The applicant
behaved rudely and aggressively towards Schoeman.
All of this took place in full view of members of the public and
other
employees.
[12]
In order to try and diffuse what was
happening, Schoeman asked the applicant to accompany him to his
(Schoeman’s) office.
The applicant initially resisted,
but then acceded to the request. Once in Schoeman’s office,
Schoeman asked the applicant
to identify himself. The applicant
took out his identity card and threw it at Schoeman. The
applicant proceeded to
tell Schoeman once again that he, the
applicant, was now the boss at the testing station and everyone had
to listen to him.
The applicant was shouting at Schoeman
throughout. Moolman, who had the office next door to Schoeman,
heard the entire altercation,
and confirmed that the applicant was
rude and aggressive towards Schoeman.
[13]
Schoeman also stated that the conduct of
the applicant disrupted him in fulfilling his normal duties, and he
in fact had to leave
a member of the public he was attending to in
order to deal with the applicant. Also, all of the above
took place in
the context of the applicant persisting in entering an
area of the testing station where he was not allowed.
[14]
The aforesaid conduct of the applicant then
formed the basis of one of the misconduct charges proffered against
the applicant in
disciplinary proceedings that followed. For
the reasons set out above, the other charges are no longer relevant.
The
charge, as formulated, had the general label of ‘intimidation,
verbal abuse and disrupting the operations of the employer’.
The specifics of the charge were:
‘
That
the employee is guilty of misconduct by contravening paragraph 2(d)
of the Code of Conduct, by failing to act in the best interest
of the
Municipality and in such a way that the credibility and integrity of
the Municipality is not compromised read with paragraphs
1.2.9 and
1.2.11 of the Disciplinary Procedure by failing to refrain from any
ruse, abuse, insolent, provocative, intimidatory
or aggressive
behaviour to a fellow employee or member of the public or with others
in any form of action, which will the effect
of disrupting the
operations of the employer. … The employee on or about the
18
th
of August 2008 again arrived at the Testing Station, being the
premises of the employer utilized for purposes of a testing station
for the obtaining of drivers’ licences, and on his arrival
acted in rude and aggressive manner towards Mr Beertjie Schoeman.
Further on the abovementioned date being the 18
th
of August the employee’s actions disrupted the duties of Mr
Schoeman and effectively the operations of the employer.
’
(sic)
[15]
Disciplinary proceedings were then convened
before one J A Motepe, in which the applicant was represented by his
chosen SAMWU official.
In a comprehensive written ruling dated 25
February 2009, the applicant was found guilty of all the charges
against him, which
included the charge referred to above. It is also
clear from the ruling that the chairperson considered the issue of an
appropriate
sanction. The chairperson recommended that the applicant
be dismissed, and this recommendation was then implemented by way of
a
letter of dismissal by the third respondent to the applicant on 3
March 2009.
[16]
The applicant then challenged his dismissal
as an unfair dismissal dispute to the second respondent, and as
discussed above, successfully
so. This was however overturned
on review and sent back to the second respondent for determination
de
novo
on
inter
alia
the above charge. On this
occasion, it came before the first respondent who then upheld the
dismissal of the applicant on the above
charge, finding the
applicant’s dismissal to be substantively and procedurally
fair. Now it is the applicant’s
turn to challenge this
finding of the first respondent on review, and it is this review
application that is now before me.
The
test for review
[17]
The
appropriate test for review is now 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]
[18]
Accordingly,
in every instance where this constitutionally suffused Section
145(2)(a)(ii) of the LRA is sought to be applied by
a review
applicant 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 this failure or error to be
reviewable. Therefore in my view, what the review applicant
must show
to exist in order to succeed with a review application 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, then that is
the end of the matter. But even if this
failure or error is
shown to exist, the review applicant must then show further that the
outcome arrived at by the arbitrator was
unreasonable. If the
outcome arrived at is nonetheless reasonable, despite the error or
failure that is equally the end of
the review application. In
short, in order for the review to succeed, the error or failure must
affect the reasonableness
of the outcome to the extent of rendering
it unreasonable.
In
Herholdt
v Nedbank Ltd and Another
[6]
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.’
[19]
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
[7]
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.’
[20]
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.
[8]
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 and issues can, or cannot,
sustain
the outcome arrived at by the arbitrator. In the end, if the
outcome arrived at by the arbitrator cannot be sustained
on any
grounds, based on that material and issues, and the irregularity,
failure or error concerned is the only basis to sustain
the outcome
the arbitrator arrived at, the review application would succeed.
[9]
In
Anglo
Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others
[10]
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.
’
[21]
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 first respondent.
Grounds
of review
[22]
The
applicant’s case for review must be made out in the founding
affidavit, and supplementary affidavit.
[11]
As was said
in
Northam
Platinum Ltd v Fganyago NO and Others
[12]
:
‘…
.
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’
.
[23]
In the founding affidavit, the applicant’s
review grounds consist mostly of the applicant in essence quoting
from the first
respondent’s award, and then disagreeing with
what was recorded, and then suggesting that such findings were
irregular and
unreasonable. No proper motivation is provided as
to why these findings are reviewable. This is not a proper
manner
in which to articulate grounds of review. It must be
illustrated in sufficient particularity as to why the findings made
by the first respondent were irregular, and then further, an
unreasonable outcome.
[24]
What I can gather from the founding
affidavit is that the applicant’s submission is that the first
respondent’s finding
that the applicant had intimidated
Schoeman because the applicant had suggested he was Schoeman’s
boss and an HOD was reviewable,
because Schoeman did not specifically
testify to this effect and the first respondent made this deduction
of her own accord.
[25]
The applicant also contends that the first
respondent ignored material evidence, to the effect that Schoeman was
called to come
to the cashier’s office, where the applicant
was, to confront the applicant about what he was doing there.
According
to the applicant, this meant that Schoeman decided to leave
his workstation, and it was not the applicant that disrupted
Schoeman’s
work, as the first respondent found to be the case.
[26]
The applicant’s supplementary
affidavit in terms of Rule 7A(8)(a) does not fare much better where
it comes to grounds of review.
Only one proper ground of review
is raised therein, being that the first respondent committed a
reviewable irregularity in finding
that the trust relationship
between the applicant and the third respondent had broken down.
The supplementary affidavit does
not say why this is so, other than
indicating that legal argument in this regard would be submitted.
[27]
I will now decide the applicant’s
review application based on these grounds of review.
Evaluation
[28]
This matter can be decided by first having
regard to the undisputed facts. It was never disputed that the
applicant was at
the testing station on 18 August 2008 and that he
does not work there. It was also not disputed that he accessed the
areas of the
testing station that were not normally accessible, and
that he was asked what he was doing there. Schoeman indeed had to
deal with
the applicant, and the applicant did inform Schoeman that
he was Schoeman’s boss. Finally and on the undisputed facts,
the
applicant certainly raised his voice, and there was an
altercation between him and Schoeman.
[29]
In this context, and considering the charge
as it was brought against the applicant, the issues the first
respondent as arbitrator
had to decide was relatively simple.
She had to decide whether the applicant in his altercation with
Schoeman shouted at
him, was rude, aggressive and intimidatory
towards him, and further whether his conduct had the effect of
interrupting normal work
activities at the testing station. If
the first respondent accepted that the applicant had so transgressed,
then the first
respondent had to decide whether the applicant had
earned his dismissal as a fair sanction. It is clear from a
reading of
the first respondent’s award and the reasoning
contained therein that she indeed appreciated that the matter hinged
on deciding
these issues, which she then did. Her approach in
deciding the matter is in my view unassailable.
[30]
What did the evidence before the first
respondent then show where it came to answering these questions?
Both Moolman and Schoeman
testified in the arbitration. Moolman
confirmed all the events relating to the conduct of the applicant
discussed above,
as well as the fact that he was not allowed in the
cash office area. Schoeman also testified about all the events
summarized above.
Schoeman was adamant that he never shouted
back at the applicant. He explained how he was interrupted in
his work by the
events that took place. It may be stated that
at the time of the arbitration, Schoeman had retired and was no
longer employed
at the third respondent, and thus had no skin in the
game, so to speak.
[31]
The final relevant witness for the
applicant was Thabo Ndlovu (‘Ndlovu’). He was the
municipal manager of the
applicant. He testified that
considering the misconduct the applicant had been found guilty of,
there was no prospect of
a continuing employment relationship between
the parties, and this relationship was irretrievably damaged. In
particular, Ndlovu
was concerned about the intimidation component of
the charge. He described the misconduct to be very serious. He
also stated
that a proper example had to be set throughout the
municipality, and if the applicant was not properly dealt with, this
could have
a negative impact in the organization. Ndlovu
mentioned an incident where he met the applicant in a lift (he did
not even
know the applicant), and the applicant twice asked him why
he hated him, despite the fact that he did not even know the
applicant.
He considered the attitude of the applicant
worrying. Under cross examination, Ndlovu said that the
misconduct of the applicant
was something that resorted under his
area of responsibility. He also said that it was not just about
intimidation, but all
the other issues ‘linked to’ the
case should also be considered.
[32]
Where it came to the case of the applicant,
most of his evidence is missing from the record (which I will deal
with later). According
to what the first respondent recorded in her
award, the applicant testified that he was entitled to be at the
testing station and
in the cash office, by virtue of the fact that he
considered himself as HOD of VIP protection. He said that it was
Schoeman who
accosted him, and demanded to know what the applicant
was doing in the cash office where people were working with money.
According
to the applicant, he said that he expected Schoeman to
greet him first, and was not happy with the manner in which Schoeman
had
asked him what he was doing there. The applicant admitted that
Schoeman asked him to come to Schoeman’s office where he showed
Schoeman his access card. The applicant stated that he was
never rude towards Schoeman nor shouted at him, but admitted he
told
Schoeman he was Schoeman’s HOD and his boss. The
applicant also said that he never disrupted Schoeman in his work.
[33]
The applicant’s only other witness
was Lesebo Papo (‘Papo’), the assistant manager: EAP and
OHS. Most of
his testimony related to the absence from work
charge against the applicant, which is no longer a relevant
consideration in these
proceedings. Papo testified that the applicant
was head of VIP protection, but did add that this was as far as he
was concerned
not a senior position. Papo testified that the
applicant’s access card gave him access to all areas at the
testing
station.
[34]
Therefore,
and where it came to the conduct of the applicant complained of, the
first respondent was confronted with two mutually
destructive cases,
only one of which could be true. The first respondent has to
decide which case to accept. As was
said in
Sasol
Mining (Pty) Ltd v Ngqeleni NO and Others:
[13]
‘
One
of the commissioner's prime functions was to ascertain the truth as
to the conflicting versions before him
’
.
[35]
The
first respondent accepted the version of Schoeman. In doing so,
the first respondent in fact came to a proper and reasoned
conclusion. She specifically considered a number of critical
probabilities, one of which was the fact that the applicant had told
Schoeman that he (the applicant) was Schoeman’s HOD and his
‘boss’. As touched on above, one of the applicant’s
grounds of review was that because Schoeman did not specifically
testify that he was intimidated because the applicant told Schoeman
he was Schoeman’s HOD / ‘boss’, the first
respondent was not permitted to draw such an inference. But
nothing can be further from the truth. In deciding which of the
mutually destructive cases to accept, the first respondent must
have
regard to probabilities.
[14]
Probabilities mean, as said in
Minister
of Safety and Security v Jordaan t/a Andre Jordaan Transport,
[15]
that the
inference must be drawn from the evidence which would be the ‘the
most natural or acceptable inference’. In
Bates
and Lloyd Aviation (Pty) Ltd v Aviation Insurance Co
[16]
it was
held as follows:
‘
The
process of reasoning by inference frequently includes consideration
of various hypotheses which are open on the evidence and
in civil
cases the selection from them, by balancing probabilities, of that
hypothesis which seems to be the most natural and plausible
(in the
sense of acceptable, credible or suitable).’
[36]
It
was thus permissible for the first respondent to infer from the
testimony presented (which included testimony by the applicant
himself) that the statements to Schoeman to the effect that the
applicant was Schoeman’s HOD and boss was intended to
intimidate
Schoeman. In my view, it would actually be difficult
to think of any other reason why the applicant would say this to
Schoeman
in the circumstances. These statements by the applicant to
Schoeman must also be considered in the context of it being made in a
rude and aggressive manner, and the applicant being confronted about
being in a restricted area. In
National
Union of Metal Workers of South Africa (NUMSA) obo Motloba v Johnson
Controls Automotive SA (Pty) Ltd and Others
[17]
the Court dealt with comparable situation to the matter
in
casu
,
and said:
‘…
Mr
Motloba shouted at Ms Bezuidenhout; he was aggressive and enraged on
account of the accusation made by the group of employees
that he had
agreed with Johnson Controls’ interpretation of the collective
agreement without their mandate. It is also probable
that, in a fit
of anger, Mr Motloba pointed and poked Ms Bezuidenhout with his
finger as a display of his aggression. His level
of aggression was
such that Ms January thought that he would strike at Ms Bezuidenhout.
He had the intention to act as he did.
Mr Motloba’s downright
denial that he did not point at Ms Bezuidenhout or poked her with his
finger must be rejected.’
The
Court concluded as follows based on these facts:
[18]
‘…
there
was sufficient evidence which showed that Mr Motloba threatened and
intimidated Ms Bezuidenhout. As already highlighted, he
invaded Ms
Bezuidenhout’s personal space and shouted at her at a
relatively short distance …
’
The
applicant behaved similarly towards Schoeman, save only for the fact
that the applicant at least did not touch Schoeman.
The
first respondent’s conclusions in this regard is justified, and
cannot be seen to be unreasonable. There is thus
no merit in
this ground of review.
[37]
The evidence of Schoeman and Moolman
emerged unscathed from cross examination. I am satisfied from a
reading of the record
that their evidence was cogent, and without any
material contradiction. They also corroborated one another in all the
relevant
respects. There was no reason for the first respondent to
not have preferred, and then rely, upon their evidence. As to
the
applicant witness Papo, he was argumentative and at times evasive
under cross examination. He did not want to make pertinent
concessions
that were called for. His testimony in any event
did not seek to contradict what had been testified to by Schoeman and
Moolman
in any way, as to the events on 18 August 2008.
[38]
The
entire evidence in chief and part of the cross examination of the
applicant has not been transcribed. It is the duty of the
applicant
to place such transcript before the Court in order to support his
review application, and if the transcript is lost,
or incapable of
being transcribed, the applicant should attempt a
reconstruction.
[19]
In the supplementary affidavit, the applicant has set out the
particulars of his efforts in obtaining what was initially
a missing
part of the recording of the arbitration, containing the applicant’s
evidence, which was later obtained.
This recording later
obtained then constituted the supplementary record filed by the
applicant. But still, there is no explanation
of any kind about
the missing part of the evidence in this supplementary record and
what was done to reconstruct that missing part.
The applicant
has elected to proceed with the review application despite this
missing part of the record, and the third respondent
has taken no
issue with this course of action proposed. Considering the past
history of this matter, it is clear to me that
both parties want to
dispose of this matter, now, and on the merits, once and for all.
[39]
I
have to say that without the bulk of the applicant’s evidence,
it is difficult for me to evaluate the applicant’s
evidence and
determine whether the first respondent may have committed a
reviewable irregularity in considering, and then determining,
such
evidence.
[20]
As the court said in
Uee Dantex
Explosives (Pty) Ltd v Maseko and Others:
[21]
‘
When
this court exercises its powers of review under s 145 of the Act, the
point of departure for any debate concerning challenges
made to the
conduct or decisions of a commissioner is what was before the
commissioner during the proceedings. What was before
the
commissioner, is constituted by the record of the proceedings. …’
[40]
The
applicant has pertinently stated that he is still prepared to proceed
with the review application with the record as it stands,
which the
applicant submitted would be sufficient to substantiate his review
application. The applicant is of course free
to decide to do
so.
[22]
In
Doornpoort
Kwik Spar CC v Odendaal and Others
[23]
it was held:
‘…
In
such circumstances the court will decide whether or not the award is
reviewable by looking at all the evidence available, the
documentary
evidence and the record as incomplete as it may be.’
[41]
The
applicant was the only one who testified in support of his case about
the events on 18 August 2008, other than Moolman and Schoeman,
whose
evidence I was able to consider. There is thus nothing by way of
external testimony to the contrary against which to test
their
evidence. As such, this review application can only be decided
on the basis of the testimony of Moolman and Schoeman
as to the
events on the day, and that of Ndlovu where it comes to the issue of
sanction, and if this turns out to be fatal to the
applicant’s
application on the merits, then so be it. In
Nathaniel
v Northern Cleaners Kya Sands (Pty) Ltd and Others
[24]
the Court said:
‘…
.
In
the present circumstances, then, the court must look at the award of
the commissioner together with all the documentary and other
evidence
before him … as well as the available transcript of
proceedings, and then decide whether the award passes
muster….
…
.
The applicant in a review has an onus to prove his/her case and must
do so on all the evidential material properly placed before
the
court. If, after consideration of all of that material (defective as
it may be), the court is unable to find a reviewable irregularity,
then the applicant will obviously fail. A defective record in such
circumstances is but one of the vagaries which accompany the
litigation process.
’
[42]
In my
view, the final say in these kind of circumstances has been aptly
articulated by Sutherland JA in
Intellectual
Democratic Workers Union on Behalf of Linda and Others v Super Group
and Others
[25]
where the learned Judge said:
‘
In
my view, once a proper effort to reconstruct a record has been made,
the review court should tackle the task, provided the record
is
adequate to enable the relevant controversy to be decided. At the two
extremes there could, on the one hand, be an issue that
either does
not or hardly turns on the facts, and on the other hand, the issue
may be one in respect of which close examination
of the content of
the ipsissima verba of witnesses is critical. The former may safely
be heard, despite a rudimentary record, the
latter, perhaps, not at
all. Many cases will fall in between these poles. A measure of
judgment is called for to assess the feasibility
of a proper
adjudication in a given case.
In
certain cases, the record may be rather poor for the relevant
purpose, although not completely useless. The preferable option
may
be to set aside the whole proceedings and allow the dispute to be
adjudicated afresh. However, that option, although from a
purely
forensic standpoint may be attractive, the implications of a remittal
may work undue hardship on one or both parties. Typically,
that
unhappy predicament results from the long elapse of time since the
dispute arose. When a remittal would, after a long elapse
of time,
trigger prejudice, the appropriate choice may be to hear the matter,
warts and all. Generally, in such a case, it is appropriate
for a
court to weigh heavily the wishes of the parties, who after all,
carry the risks of the imperfections of the record; if both
prefer to
press on to a final resolution of the dispute on an inadequate
record, such a choice may tip the judicial judgment call
on whether
to carry on or to remit.
’
Applying
the above
dicta
,
in
casu
,
this is a case falling between the two poles referred to by
Sutherland JA. The missing part of the testimony is important, but
not critical to deciding the review. Both parties have expressed
their clear wish to have this matter concluded. The case also
dates
back to 2008, and it is in the interest of finality not to send it
back to the second respondent again, especially considering
that an
important witness such as Schoeman has long since retired. I am
satisfied that I have enough to decide the matter, warts
and all.
As said by Sutherland JA:
[26]
‘…
the
sensible option is to hear the matter and put the dispute to bed.
’
[43]
Turning
then to deciding this matter on the merits, and considering the
actual reasoning of the first respondent as contained in
her award, I
am overall satisfied that she properly evaluated and determined the
evidence before her, and in particular, the probabilities.
Generally
speaking, the award is well reasoned and deals with all the pertinent
evidence. It is certainly not lacking in
reasoning, which is a
criticism often dispensed by this Court where it comes to awards of
arbitrators.
[27]
This being the case, the applicant would always face an uphill battle
in seeking to show that the outcome arrived at by the
first
respondent was unreasonable.
[44]
The first respondent considered the
evidence of the applicant’s own witness, Papo, to the effect
that the applicant was not
authorized to be in the cash office area.
In this regard, the record shows that although Papo testified that
the applicant’s
access card allowed him access to all areas of
the testing station, he concedes in cross examination that this was
done after the
fact and on instruction from the applicant himself,
and that the applicant was in principle not allowed in the cash
office area.
The first respondent accepted that Schoeman’s
approach to the applicant and the questions he put to the applicant,
because of him not being allowed in the cash office area, made
sense. Based on these pieces of evidence, the first respondent
reasoned that it was likely that the applicant reacted the way that
he did because he knew he was not supposed to be there.
This
reasoning makes sense to me, and is certainly not unreasonable.
[45]
The first respondent also considered the
applicant’s own testimony to the effect that he considered
Schoeman’s approach
to him not to be ‘right’, and
that he expected Schoeman to first greet him. The first
respondent held that it
could be inferred from this view that it was
likely that the applicant refused to identify himself, as Schoeman
had testified was
the case, and reacted aggressively. The first
respondent also considered the applicant’s own testimony about
only speaking
in a loud voice, and after analysing the version,
rejected it, concluding that the applicant was unjustifiably shouting
at Schoeman.
Yet again, I can find little fault with this
reasoning and conclusions reached by the first respondent, which is
in any event fully
supported by the direct testimony of Schoeman and
Moolman. It resorts well within the bounds of
reasonableness.
[46]
As already touched on above, it is
undisputed that the applicant indeed told Schoeman that the applicant
was an HOD and that he
was Schoeman’s boss. I have
already dealt with the first respondent’s finding as to why the
applicant would say
such things to Schoeman, which finding is
unassailable. But the first respondent went even further, and
sought to decide
whether these contentions of the applicant even had
substance. The first respondent held that other than the
ipse
dxit
of the applicant and his witness
Papo, there was no supporting evidence or documents to the effect
that that the applicant held
an HOD position. Papo conceded under
cross examination that he had nothing to do with the appointment of
staff, and in any event
could not point to any document appointing
the applicant as HOD. Papo also conceded he and the applicant
were friends. The
applicant similarly conceded in the part of the
cross examination that was transcribed that he did not have an
appointment letter
where it came to this alleged HOD position. I am
inclined to agree with the first respondent where she reasons that
surely there
must have been some kind of letter of appointment or
documentary evidence proving the applicant was appointed as an HOD.
In light
of all the concessions made by Papo and the complete absence
of any proper documentary evidence substantiating the applicant’s
alleged appointment as HOD, it is highly unlikely that what the
applicant said to Schoeman was true, and the first respondent’s
finding to this effect was entirely rational and reasonable. I may
add my own view that I have difficulty in accepting that the
head of
VIP protection would be in charge of the licencing testing station.
[47]
This then leads logically to the next
consideration, namely that if it is not true that the applicant was
an HOD and Schoeman’s
‘boss’, then what was he
doing in the cash office area and why did he say this to Schoeman?
The first respondent
was very much alive as to how this question was
to be properly answered. She referred to the fact that the
applicant had
come to the testing station for his own personal
benefit, namely to get a licence (PDP). Obviously be did not
want to stand
in line with everyone else, but used his position to
‘jump the queue’, so to speak. When confronted by
Schoeman,
the applicant reacted by saying that he was Schoeman’s
superior and an HOD, which could only serve to ‘resist’
(as the first respondent calls it), the challenge by Schoeman.
This reasoning of the first respondent makes common sense,
and is in
my view the most natural inference to be drawn from the facts. The
first respondent committed no wrong in so concluding,
and certainly
her conclusion in this regard was reasonable.
[48]
All
these probabilities considered, the first respondent then prefers the
evidence of Schoeman. She accepted that the applicant
was rude and
aggressive and shouted at Schoeman, and sought to intimidate him.
The first respondent’s findings on the
facts, in this regard,
is in my view unassailable on review. Insofar as the first
respondent can be seen to have made a credibility
finding in
preferring the evidence of Schoeman over that of the applicant, there
is nothing on the record to indicate that this
credibility finding
would be completely out of kilter or irreconcilable with the evidence
as contained in the record and the applicant
has in any event made
out no such case in the founding affidavit or supplementary
affidavit.
[28]
There is simply no justified basis on which to interfere with any
such a credibility finding made by the first respondent.
[49]
This leaves the part of the charge relating
to the applicant’s conduct disrupting the duties of Schoeman.
There can
be little doubt that this was indeed the case. As a
matter of logic, and whilst attending to the applicant, Schoeman
could
not do his other work. Schoeman testified that he was
busy with other work when it was brought to his attention that the
unknown individual (which turned out to be the applicant) was in the
cash office area again. The applicant simply had no business
being there. Schoeman was compelled to deal with it. The first
respondent dealt with all these considerations in her award,
and in
my view justifiably so. Her conclusions to this effect are properly
arrived at, and entirely reasonable.
[50]
The applicant has put forward as a ground
of review, as identified above, that the first respondent ignored
that it was Schoeman
that chose to leave his work and come and attend
to the applicant, and thus it could not be contended that the
applicant had disrupted
Schoeman in his work. I consider this
reasoning to be ridiculous, and to criticize the first respondent for
not considering
it, completely undeserving. The fact is
that the applicant had no business being in the cash office area.
He
was not allowed to be there. Schoeman had been briefed by
his employees about some unknown person (as said this turned out
to
be the applicant) coming into the cash office area and misbehaving.
When he was told this person was back, he was obliged to
deal with
the situation. The fact that he chose to deal with the
situation cannot detract from the culpability of the applicant
and
the fact that overall considered, he was the direct cause of the
disruption. There is simply no substance in this ground of
review.
[51]
In conclusion, the first respondent’s
finding that the applicant was rude and aggressive towards Schoeman
and sought to intimidate
him is unassailable and properly supported
by the evidence. Similarly, the finding of the first respondent that
the applicant’s
conduct interfered with the normal duties of
Schoeman is equally unassailable. Considering charge 4.2 against the
applicant as
set out above, there can be little doubt that the
applicant committed this misconduct with which he had been charged.
The first
respondent’s finding to this effect is not in any way
irregular, and certainly a reasonable outcome based on the evidence
properly considered as a whole. There is no substance to the
applicant’s review application where it comes to these
conclusions of the first respondent.
[52]
This the only leaves the issue of an
appropriate sanction for this misconduct. The applicant has
also raised as a ground of
review that his dismissal as a sanction
was unfair, and in particular took issue with the first respondent’s
finding that
the trust relationship had broken down.
[53]
In
deciding whether this ground of review raised by the applicant has
any substance, regard must first be had to the nature of the
misconduct the applicant had committed. At its core, the
applicant’s conduct towards Schoeman, as manager of the testing
station, was insolent. As was said in
Commercial
Catering and Allied Workers Union of SA and Another v Wooltru Ltd t/a
Woolworths (Randburg)
[29]
:
‘…
insolence
is defined as: "offensive contemptuousness of action or speech
due to presumption"; and insolent is defined
as: "contemptuous
of rightful authority; presumptuously contemptuous; impertinently
insulting". Likewise,
Collins
English Dictionary
(1983) does not regard insubordination and insolence as synonyms.
Insolent is defined as: "offensive; impudent or disrespectful".
It is clearly a synonym for cheeky which is defined as:
"disrespectful in speech or behaviour; impudent".
Disrespectful
(the other synonym for both of these words) is defined
as: "contempt; rudeness; lack of respect for". It is clear
that
insolence, disrespect, rudeness and impudence are birds of a
feather. …’
[54]
In
Environserve
Waste Management (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
[30]
the Court defined ‘insolence’ as follows:
‘
The
offence of
insolence
is
generally equated with conduct which is offensive, disrespectful,
impudent, cheeky, rude, or insulting. Such conduct may be verbal,
in
writing or through demeanour, and invariably has the consequences of
demeaning the person it is directed at or his or her authority.
At
worst, it has an element of contempt attached to it. Conduct commonly
associated with
insolence
varies
in degrees and extremes, and may include talking back; talking over;
shouting at; aggressively arguing; talking in a disrespectful,
demeaning or contemptuous manner; body language such as eye rolling,
direct finger pointing, looking or walking away whilst the
superior
is talking, or worst, gesturing disrespectfully towards a superior,
including showing him/her the proverbial middle finger
…
’
There
can be little doubt that the applicant’s conduct towards
Schoeman was disrespectful, impudent and contemptuous of this
authority as manager of the testing station. The conduct of the
applicant was undoubtedly demeaning to Schoeman, considering
what was
said, and certainly rude as well.
[55]
But
did this justify dismissal? The above
ratio
in
Wooltru
was applied in
Palluci
Home Depot (Pty) Ltd v Herskowitz and Others
[31]
,
and the Court came to the following conclusion:
[32]
‘…
acts
of mere insolence and insubordination do not justify dismissal unless
they are serious and wilful. A failure of an employee
to comply with
a reasonable and lawful instruction of an employer or an employee's
challenge to, or defiance of the authority of
the employer may
justify a dismissal, provided that it is wilful (deliberate) and
serious. Likewise, insolent or disrespectful
conduct towards an
employer will only justify dismissal if it is wilful and serious. The
sanction of dismissal should be reserved
for instances of gross
insolence and gross insubordination as respect and obedience are
implied duties of an employee under contract
law, and any repudiation
thereof will constitute a fundamental and calculated breach by the
employee to obey and respect the employer's
lawful authority over him
or her.
’
[56]
In
Environserve
Waste Management
[33]
the Court applied the above
dictum
from the judgment in
Palluci
,
and held:
‘
It
is accepted that the offence of mere
insolence
is
not in itself sufficient to result in a dismissal. What is defined as
‘mere
insolence
’
will
obviously depend on the circumstances and the conduct in question,
and its effects. However, for
i
nsolence
to justify a dismissal, it must by all accounts be wilful and
serious, with the result that the employment relationship
irretrievably breaks down. Examples of gross
i
nsolence
include
some as already indicated above, and may extent to
inter
alia
,
verbal abuse and/or tirades which may be laced with crass
profanities, making personal or crude insults or gestures toward a
superior, coupled with violent conduct in some instances, or even
making physical or other threats.’
[57]
In my
view, the following
dictum
from the judgment in
Sylvania
Metals (Pty) Ltd v Mello N.O. and Others
[34]
aptly summarized the legal position where it comes to insolence as
misconduct, as follows:
‘
This
Court in
Palluci
Home Depot (Pty) Ltd v Herskowitz and Others,
discussed
the “
fine
line”
between
insubordination
and insolence, with the latter being
conduct
that is offensive, disrespectful in speech or behaviour, impudent,
cheeky, rude, insulting or contemptuous. While the Court
noted that
i
nsolence
may become insubordination where there is an outright challenge to
the employer’s authority,
“
acts
of mere insolence and insubordination do not justify dismissal
unless they are serious and wilful
”. The
sanction of dismissal is reserved for instances of
gross insolence and gross insubordination or
the
wilful
flouting of the instructions of the employer.
’
[58]
The
first respondent paid scant attention in her award to all the
elements of the applicant’s insolent conduct. What
the
first respondent focussed on was the intimidation component of the
misconduct, which she described as serious misconduct. However,
considered together, the other elements of the insolence of the
applicant as coupled with the intimidation would certainly make
the
transgression a gross violation.
[35]
In
Johnson
Controls Automotive
[36]
the Court said:
‘
There
is no evidence in support of the argument that Johnson
Controls regarded the incident as normal. On the contrary, it
will be remembered that Ms Scheepers’ testimony was to the
effect that Johnson Controls viewed the encounter as a personal
attack on Ms Bezuidenhout’s integrity which could not be
countenanced. Mr Motloba’s outbursts were completely
unacceptable
and devoid of any respect. Mr
Partington
, for
Johnson Controls, argued that the conduct displayed by Mr Motloba was
in truth reminiscent of the kind of belligerence
and militancy that
has no place in industrial relations. I agree.
’
The
same can be said about the conduct of the applicant
in casu
.
It was devoid of respect, belligerent and entirely unacceptable.
It was an attack on Schoeman so as to stop Schoeman
taking issue with
the fact that the applicant was where he was not allowed to be.
[59]
The
facts in the judgment of
Palluci
may serve as a comparison, to the contrary so to speak, of the facts
in
casu
.
I point out that in
Palluci
,
the Court accepted that although the employee could be said to be
insolent, it could not be considered to be gross, and as such
dismissal was not justified.
[37]
In
Palluci
,
the allegation against the employee was that she had accused the
managing director of being ‘not an MD” and of being
unprofessional, and also shouted at him in the presence of other
staff. The Court in fact rejected this case of the employer
and
thus held that it did not happen.
[38]
In
casu
,
and to the contrary, the statements made by the applicant to Schoeman
no doubt happened, as well as the fact that he shouted at
Schoeman in
the earshot of others.
[60]
Also
in
Palluci
,
the Court held that what the employee did wrong was complaining to
the managing director about a deduction from her salary in
a brash
and arrogant manner, and she turned her back on him. The Court
said that this conduct was ‘insolent, impudent,
disrespectful,
and rude’, but held that it was not ‘persistent, wilful
and a serious challenge to, or defiance of the
employer's
authority’.
[39]
The Court also considered, as an important consideration, that the
employee had been provoked by the act of the deduction from
her
salary and by the condescending manner in which the managing director
dealt with her query in this regard. The Court
concluded, in
finding dismissal to be inappropriate:
[40]
‘…
This
resulted in nothing more than, at best, an isolated knee jerk in the
heat of the moment by the first respondent, who had been
provoked by
her employer. It is clear from the evidence that she did not intend
to challenge or defy Lambrecht's authority, but
in her anger at the
deduction coupled with Lambrecht's refusal to discuss the issue with
her by inter alia condescendingly turning
his back to her, she
reacted precipitously by demanding, in a raised voice, that he should
not turn his back to her while she was
discussing the issue of the
deduction with him. Whilst the first respondent's conduct was
manifestly insolent, it cannot be said
to be a serious, persistent
and deliberate challenge to the employer's authority …
’
[61]
Turning to what is now before me, the
evidence showed that the applicant had a penchant for coming to the
testing station and throwing
his weight around, without any cause or
reason for doing so, and when it was simply not his place to do
this. In fact, Schoeman
had been alerted beforehand to this
unknown person who was behaving in such a manner. And sure
enough, the applicant came
back and did the same thing, thus leaving
Schoeman with no choice but to intervene. There is nothing
Schoeman or any of the
staff at the testing station did to provoke
the applicant. Rather, the applicant wanted to use his
employment at the third
respondent to his advantage when coming to
procure a licence, and behaved as he did when confronted. In
sum, he shouted and
was rude and aggressive, made statements to
Schoeman about the applicant’s position which was not true,
initially refused
to identify himself and then threw his identity
card at Schoeman, which conduct was witnessed by others. This
places the
insolence of the applicant far outside the realm of what
was considered in
Palluci
not to be dismissable.
[62]
The
judgment in
Sylvania
Metals
[41]
is a far more apposite comparator to the matter
in
casu
.
In that matter,
[42]
the Court dealt with a situation where, in a meeting, the employee
said
he
was unwilling to work with his senior, adopted an argumentative and
hostile approach to his senior during the meeting, refused
to answer
questions put to him, and stated that he required his instructions to
him to be put in writing in future. The employee
also left the
meeting before it was concluded and in evidence was unrepentant about
his conduct. Based on this, the
Court held as follows, in
upholding the dismissal of the employee as a fair sanction:
[43]
‘…
The
employee was aggressive, rude and disrespectful in his speech and
behaviour towards Mr Malema during the course of the meeting.
His
refusal to adhere to a reasonable instruction given to him to explain
the circumstances of the valve repair was both wilful
and serious.
His insistence that all future instructions to him to be signed by
the plant manager, that he would not work according
to Mr Malema’s
standards and his decision to leave the meeting before it had
concluded posed a deliberate and serious challenge
to the employer’s
authority. His conduct indicated a refusal to respect the authority
of Mr Malema as his superior. It also
indicated an approach which was
impractical insofar as it sought to require Mr Malema to place all
instructions to him in writing.
The employee’s chosen course of
behaviour constituted serious misconduct. It was not merely insolent
but also insubordinate
in the refusal to respect and adhere to the
line of authority in the workplace.
’
[63]
Although
not specifically referred to in the first respondent’s award,
an important consideration
in
casu
is a complete absence of remorse by the applicant for what he did. In
fact, the applicant persists with an approach that he did
nothing
wrong. The first respondent does pertinently say in her award that
she does not believe that progressive discipline is
possible.
This indicates to me that the first respondent appreciated that there
was a lack of remorse on the part of the
applicant. In
De
Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
[44]
the Court said:
‘
This
brings me to remorse. It would in my view be difficult for an
employer to re-employ an employee who has shown no remorse.
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. …’
[64]
In
any event, and even if the first respondent did not consider the
applicant’s lack of remorse, it is always about whether
the
outcome arrived at by the first respondent was reasonable, and this
factor would certainly be an important component in rendering
the
outcome arrived at to be reasonable. In
Theewaterskloof
Municipality v SA Local Government Bargaining Council (Western Cape
Division) and Others
[45]
the Court applied the aforesaid
dictum
in
De
Beers
,
and said:
‘…
This
passage was endorsed and applied by the LAC in its unanimous decision
in
The
Foschini Group (Pty) Ltd v Marie Fynn and Others
(unreported case no DA 1/04 31 January 2006). In that case, a sales
assistant was found guilty of displaying abusive and threatening
language as well as aggressive behaviour towards a customer, for
which she was dismissed. The LAC held the dismissal to have been
fair, holding at paras 21 and 22 that:
“
Throughout
the series of events which comprised this dispute, including the
hearing before second respondent, first respondent showed
no remorse
or regret for the conduct which she had displayed on the day in
question. In this regard the... dictum... in
De
Beers
...
at para 25 is of application to the present
dispute....
In the present case first respondent held a responsible position in
appellant's organization. It is trite that in the service industry
"the customer is king". In the case of a senior employee,
albeit under some measure of provocation, who pursues the customer
to
outside of the premises, then engages in an altercation of the kind
which required her to be led back into the premises by the
store
messenger, and shows no regret or remorse for her conduct, an
employer is entitled legitimately to adopt the attitude that
the risk
of continuing the employment of this person is unacceptably great.”
’
[65]
What
the applicant needed to do to mitigate the seriousness of his
misconduct was to acknowledge his wrongdoing, express regret
for what
he had done, and tender an apology to Schoeman. This would have gone
a long way in possibly convincing an arbitrator such
as the first
respondent that dismissal may not have been a fair sanction. The
failure to do so must weigh heavily against the applicant.
In
Johnson
Controls Automotive
[46]
it was held as follows:
‘
A
simple apology may have resolved the issues. Instead, an
obstinate trivialisation of the incident and a denial that the
event was inappropriate pervade the record. The misconduct for which
Mr Motloba was charged was serious. He showed no contrition.
Although
he intimated that he learned from his experience as a leader not to
permit his constituency to approach matters in the
manner that
they did, he denied that he made a mistake in approaching Ms
Bezuidenhout with the group of approximately 20 employees.
I am
satisfied that the sanction of dismissal meted out was appropriate in
the circumstances of this case.
’
[66]
What
makes matters even worse
in
casu
is that the applicant’s misconduct took place in the cash
office area for all to see. It was witnessed by members of
the
public and even when Schoeman took the altercation to his office, the
applicant shouted at Schoeman to the extent that Moolman
in the
adjacent office could hear.
In
Humphries
and Jewell (Pty) Ltd v Federal Council of Retail and Allied Workers
Union and Others
[47]
the Court
held as follows:
‘…
In
our view a disregard by an employee of his employer's authority,
especially in the presence of other employees, amounts to
insubordination
and it cannot be expected that an employer should
tolerate such conduct. The relationship of trust, mutual confidence
and respect
which is the very essence of a master servant
relationship cannot, under these circumstances, continue. In the
absence of
facts showing that this relationship was not detrimentally
affected by the conduct of the employee it is unreasonable to compel
either of the parties to continue with the relationship…
’
[67]
The
conduct of the applicant surely disrupted the harmony in the
workplace. This the first respondent clearly properly
appreciated.
The conduct of the applicant hindered the work of
employees, and in particular Schoeman. The applicant caused a
state of
disharmony to exist, without any provocation, cause or
reason. In this regard, the Court in
Public
Servants Association of SA on behalf of Khan v Tsabadi NO and
Others
[48]
said:
‘
By
its very nature the employment relationship places certain
obligations upon the employee, two aspects of which are the generic
duties of the employee to maintain a harmonious relationship and to
cooperate with her employer. Brassey notes that the employee's
obligation to ensure a harmonious relationship with the employer and
other staff requires that she should do nothing to undermine
it …’
[68]
It is
true that that the first respondent did not specifically refer to all
the factors that must be considered in deciding whether
the sanction
of dismissal imposed on the applicant was fair.
[49]
However, the first respondent did consider the important issues such
as the gravity of the offence, the absence of remorse, and
what the
disciplinary code provided for as a sanction. And then, specifically,
the first respondent dealt with the issue of the
trust relationship.
She accepted the testimony presented by Ndlovu that testified for the
applicant that the trust relationship
had been destroyed.
Ndlovu, by virtue of his position, was competent to testify about the
trust relationship. There is no
basis to interfere with this
conclusion of the first respondent, which is properly supported by
the evidence on record, and the
disciplinary hearing documents.
The destruction of the trust relationship also strongly mitigated in
favour of a conclusion
that the applicant’s dismissal was a
fair sanction. T
he
following
dictum
in
Miyambo
v CCMA and Others
[50]
is
particularly apposite,
where it was
held:
‘
It
is appropriate to pause and reflect on the role that trust plays in
the employment relationship. Business risk is predominantly
based on
the trustworthiness of company employees. The accumulation of
individual breaches of trust has significant economic repercussions.
A successful business enterprise operates on the basis of trust...
’
[69]
The
applicant, as touched on above, has raised a complaint that there was
no testimony from his own superior about the trust relationship,
as
Ndlovu was not such a person.
[51]
I am compelled to point out a certain irony in this complaint,
considering what the applicant did. As stated, the applicant
referred to himself as Schoeman’s boss. That being so,
Schoeman’s ultimate superior is Ndlovu, and it would follow
that he must be the applicant’s superior as well. The
applicant tried to prove he was Schoeman’s ‘boss’
and failed. But where it comes to sanction, he then tries to
distance himself from that part of his case. The applicant
wants to have his cake and eat it. And I again refer to the
discussion above to the effect that unlike in
Edcon
,
Ndlovu as municipal manager was the proper person to testify about
the employment relationship, and his evidence that this kind
of
misconduct resorted within his scope of responsibility is the
testimony that should be accepted. There is accordingly
no
merit in this ground of review.
[70]
Overall
considered, the decision of the first respondent in finding that the
dismissal of the applicant was a fair sanction can
be comfortably
reconciled with the following
dictum
from the judgment in
Msunduzi
Municipality v Hoskins
[52]
,
where the Court dealt with what it called ‘serious
insubordination and insolence’
[53]
by an employee, and held:
[54]
‘
In
my view, the arbitrator correctly applied his mind to all the
material that was placed before him. He took into account the
seriousness of the insubordination, the respondent’s blatant
well-publicised challenge to the authority of the municipal
manager, that he showed no remorse when he appeared at the
arbitration, and found dismissal to be an appropriate sanction. The
fact that the arbitrator did not make specific reference to schedule
8 to the LRA does not detract from the fact that factors relevant
to
sanction were in this matter taken into account. The arbitrator
considered progressive discipline and found that given,
inter alia,
the seriousness of the transgression, lack of remorse and instead
being defensive, the complete breakdown in the employment
relationship between the respondent and the municipal manager, as
well as the responsibility of the municipality to deliver services,
it would not be practicable to restore the employment relationship.
…
’
[71]
To sum up, the first respondent simply
cannot be faulted where she found that the applicant has indeed
committed the misconduct
as contemplated by charge 4.2. And then
where it comes to dismissal as a fair sanction, the outcome arrived
at by the first respondent
is founded on proper and legitimate
factual and legal considerations, and overall considered is a finding
a reasonable decision
maker could come to. The applicant has
therefore failed to justify a proper basis on which this Court should
interfere with
the award of the first respondent.
Conclusion
[72]
In
Gold
Fields Mining
[55]
the Court
said:
‘…
.
The questions to ask are these: … (ii) Did the arbitrator
identify the dispute he was required to arbitrate….? (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? and (v) is the arbitrator’s
decision one that another decision-maker could reasonable
have
arrived at based on the evidence?’
In
casu
, all these questions must clearly
be answered in the affirmative, and this can only lead to an ultimate
conclusion that the first
respondent’s award must be upheld
[73]
Therefore, and for all the reasons set out
above, I conclude that the first respondent’s arbitration award
is not reviewable.
I am satisfied that there is nothing
untoward or irregular in the first respondent’s evaluation and
determination of the
evidence. Insofar as the issue of the
outcome arrived at by the second respondent may be considered on the
basis of it being
reasonable or unreasonable, there is in my view no
doubt that it would comfortably resort within the bands of
reasonableness as
required, in order to be sustainable on review.
The applicant’s review application accordingly falls to be
dismissed.
[74]
This then only leaves the issue of costs.
This review application in my view always had little merit, and
should never have been
pursued. The evidence against the applicant
was in reality overwhelming and there was never any valid grounds to
challenge the
credibility and probability findings of the first
respondent. The applicant’s grounds of review were scant,
and not
properly motivated. For these reasons, I was sorely tempted
to make a costs award against the applicant. But in its heads
of argument, the third respondent has not asked for costs. I
also consider that the previous review proceedings in favour
of the
third respondent also did not carry with it an order of costs.
Exercising the wide discretion I have under Section
162 of the
LRA, I consider it appropriate that no costs order be made against
the applicant.
Order
[75]
In the premises, I make the following
order:
1.
The applicant’s review
application is dismissed.
2.
There
is no order as to costs.
_____________________
S Snyman
Acting
Judge of the Labour Court
Appearances:
For the
Applicant:
Mr N Thaanyane of Thaanyane Attorneys
For the Third Respondent:
Adv L Pillay
Instructed
by:
De Swart Vogel Myambo Attorneys
[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]
(2013)
34
ILJ
2795 (SCA)
at
para 25.
[7]
(2014) 35 ILJ 943
(LAC) at para 14. The
Gold
Fields
judgment was 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.
[8]
See
Fidelity
Cash Management
(
supra
)
at para 102.
[9]
See
Campbell
Scientific Africa (Pty) Ltd v Simmers and Others
(2016) 37 ILJ 116
(LAC) at para 32.
[10]
(2015) 36 ILJ 1453
(LAC) at para 12.
[11]
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. The applicant did not file a
supplementary affidavit.
[12]
(2010) 31 ILJ 713
(LC) at para 27.
[13]
(2011) 32 ILJ 723
(LC) at para 9.
[14]
In
SFW
Group Ltd and Another v Martell et Cie and Others
2003
(1) SA 11
(SCA) at para 5 the Court said
:
‘…To come to a conclusion on the disputed issues a
court must make findings on (a) the credibility of the various
factual witnesses; (b) their reliability; and (c) the
probabilities...’.
[15]
(2000) 21
ILJ
2585 (SCA) at para 9. See also
SA
Post Office v De Lacy and Another
2009 (5) SA 255
(SCA) at para 35.
[16]
1985 (3) SA 916
(A)
at 939I-J
.
See also
Food
and Allied Workers Union and Others v Amalgamated Beverage
Industries Ltd
(1994)
15 ILJ 1057 (LAC)
at 1064C-E;
National
Union of Mineworkers and another v Commission for Conciliation,
Mediation and Arbitration and Others
(2013)
34 ILJ 945 (LC) at paras 36 – 37.
[17]
(2017)
38 ILJ 1626 (LAC) at para 42
[18]
Id at para 46.
[19]
See
Lifecare
Special Health Services (Pty) Ltd t/a Ekuhlengeni Care Centre v
Commission for Conciliation, Mediation and Arbitration
and Others
(2003)
24 ILJ 931 (LAC) at para 13;
Toyota
SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2016) 37 ILJ 313 (CC) at para 43.
[20]
Compare
Francis
Baard District Municipality v Rex NO and Others
(2016) 37 ILJ 2560
(LAC) at para 25.
[21]
(2001) 22
ILJ
1905
(LC) at para 22; See also
Ndlovu
v Mullins NO and Another
(1999) 20
ILJ
177 (LC) at paras 13-14.
[22]
See
Papane
v Van Aarde No and Others
(2007)
28 ILJ 2561 (LAC) at para 28.
[23]
(2008) 29 ILJ 1019
(LC) at para 7.
[24]
(2004) 25 ILJ 1286
(LC) at paras 16 and 18. See also
Baloyi
v Member of the Executive Committee for Health and Social
Development, Limpopo and Others
(2016) 37 ILJ 549 (CC) at para 36;
Fidelity
Cash Management Services (Pty) Ltd v Muvhango NO and Others
(2005)
26 ILJ 876 (LC).at 881C-E;
Solidarity
on behalf of Botha v Commission for Conciliation, Mediation and
Arbitration and Others
(2009)
30 ILJ 1363 (LC) at para 15.
[25]
(2017) 38 ILJ 1292
(LAC) at paras 8 – 9. See also
Francis
Baard District Municipality
(
supra
)
at paras 21 – 22.
[26]
Id at para 11.
[27]
See for example
Sasol
Mining
(
supra
)
at
para 7;
Blitz
Printers v
Commission for Conciliation, Mediation and Arbitration and Others
[2015]
JOL 33126
(LC)
at para
37;
Kok
v Commission for Conciliation, Mediation and Arbitration and Others
[2015] JOL 32888
(LC);
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
(2010)
31
ILJ
452 (LC)
at
para 20.
[28]
See
Standerton
Mills (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2012)
33 ILJ 485 (LC) at para 18;
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
(2013)
34 ILJ 945 (LC) at para 31.
[29]
(1989)
10
ILJ
311 (IC)
at
315A-G
.
[30]
[2016] ZALCPE 23
(15 November 2016) at para 14.
[31]
(2015) 36 ILJ 1511
(LAC)
at
para 20.
[32]
Id at para 22.
[33]
(
supra
)
at para 15.
[34]
[2016] ZALAC 52
(22 November 2016) at para 18.
[35]
Compare
Environserve
Waste Management
(
supra
)
at para 19.
[36]
(
supra
)
at para 44.
[37]
See
Palluci
(
supra
)
at para 29.
[38]
Id at para 28.
[39]
Id at para 29.
[40]
Id at para 29.
[41]
(
supra
).
[42]
See para 19 of the judgment.
[43]
Id at para 20.
[44]
(2000)
21
ILJ
1051
(LAC)
at
para 25. See also
Independent
Newspapers (Pty) Ltd v Media Workers Union of SA on behalf of McKay
and Others
2013)
34 ILJ 143 (LC) at 146;
Greater
Letaba Local Municipality v Mankgabe No and Others
(2008)
29 ILJ 1167 (LC) at para 34.
[45]
(2010) 31 ILJ 2475
(LC) at paras 27 – 28.
[46]
(
supra
)
at para 53.
[47]
(1991) 12
ILJ
1032
(LAC) at 1037F-H.
[48]
(2012) 33 ILJ 2117
(LC)
at para 116.
See also
Environserve Waste
Management
(
supra
)
at para 16.
[49]
In deciding
whether the decision to dismiss by the applicant was fair, the
‘totality of circumstances’ had to have
been
considered
.
This
‘totality of circumstances’ include
the
reason the employer imposed the sanction of dismissal, the basis of
the employee's challenge to the dismissal, the harm caused
by the
employee's conduct, whether progressive discipline would be
appropriate, the effect of dismissal on the employee, the
employee’s
service record,
the
issue of the nature of the misconduct, any breakdown of the trust
relationship, the existence of dishonesty, the existence
of genuine
remorse, the job function and the employer’s disciplinary code
and procedure. See
Sidumo
(
supra
)
at paras 116 – 117;
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, in this regard.
[50]
(2010)
31 ILJ 2031
(LAC)
at para 13.
[51]
The a
pplicant
is relying on the judgment of
Edcon
Ltd v Pillemer NO and Others
(2009)
30 ILJ 2642 (SCA) at para 19.
[52]
(2017)
38 ILJ 582 (LAC).
[53]
Id at para 26.
[54]
Id at para 29.
[55]
(
supra
)
at para 20 – 21.