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[2017] ZALCCT 15
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Mayisela v Commission for Conciliation, Mediation and Arbitration and Others (C138/16) [2017] ZALCCT 15; (2017) 38 ILJ 1826 (LC) (19 April 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT CAPE TOWN)
Reportable
Case
No: C138/16
In
the matter between:
VINCENT
NKULULEKO
MAYISELA
Applicant
and
THE
COMMISSION FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First Respondent
ANTONY
OSLER
Second
Respondent
LEGAL
AID SOUTH AFRICA
Third Respondent
Heard:
15 September 2016
Delivered:
19 April 2017
Summary:
Review of award with multiple charges – reasonableness of
instruction by supervisor – Commissioner not entitled
to
assumed instruction to be reasonable – misconduct –
racism -
racist conduct requires a very firm and
unapologetic response from the courts – review partly
successful – dismissal
unfair – reinstatement ordered.
JUDGMENT
CELE
J
Introduction
[1] This application
seeks to review and set aside an arbitration award with multiple
charges handed down under case number NC1084/14,
dated 14 February
2016 and issued by the second respondent. It is an application in
terms of section 145 of the Labour Relations
Act.
[1]
The arbitration related to the applicant’s dismissal by the
Third Respondent based on allegations that he committed various
acts
of misconduct. The application is on the basis that the arbitrator
failed to conduct a proper enquiry and reached a decision
that no
reasonable arbitrator could reach on the evidence tendered. The third
respondent opposed this application on the basis
that the outlined
grounds of review are not sustainable when evidence tendered is
considered.
Factual Background
[2] Most of the facts in
this matter were common cause between the parties from inception of
the dismissal dispute. I shall defer
to that outline of those facts
as was given by the Commissioner as confirmed by the Applicant in his
founding affidavit. In his
award, the Commissioner described the
background facts thus:
“
4.
The employer is a state-funded provider of legal
services to the indigent, with offices – known as Justice
Centres –
nationally. At the time during which this dispute
arose, the employee was employed as the Justice Centre Executive
(‘JCE’),
managing the Kimberley Justice Centre.
Operationally, he reported to the Regional Operations Executive
(‘ROE’) for
the Western and Northern Cape, Ms C
Robertson. After an investigation into various complaints about the
conduct of the employee,
he was suspended on 22 October 2013. On 6
November 2013 he was served with a number of charges falling under
the headings of gross
insubordination, gross insolence; attacking the
honour, dignity or good name of the ROE; threats and intimidation
toward the ROE;
disruption of the employer’s operations and
activities; professional negligence; conduct bringing the employer
into disrepute;
and absence without leave - all with alternatives of
failing to observe the rules and regulations of the employer.
5.
A disciplinary inquiry was held into the above charges between 21
November and 29 April 2014, in
which the presiding officer was the
ROE for KwaZulu-Natal, Ms V Mdaka. On 11 April 2014 the employee was
found guilty of seventeen
charges and not guilty on eight of the
charges against him. After hearing mitigation and aggravation, the
presiding officer recommended
the dismissal of the employee and this
was implemented by the employer on 14 May 2014.
6.
The present dispute was referred to the CCMA in May 2014. After the
dispute remained unresolved
at conciliation, an arbitration hearing
was held in October 2014. An arbitration award was issued by
commissioner T Potgieter on
8 October 2014, in which it was found
that the employee’s dismissal was substantively and
procedurally fair. The employee
then launched review proceedings in
the Labour Court, which resulted in the award being set aside on 5
August 2015 and the matter
being referred back to the CCMA for
arbitration before a different commissioner.
7.
The present arbitration was set down accordingly and the
parties held a pre-arbitration conference prior to the hearing, of
which
a minute was submitted at the start of proceedings. In the
pre-arbitration conference the employer indicated that it would only
proceed against the employee on four of the charges for which he had
been dismissed, namely gross insubordination (charges 1.1-1.4);
gross
insolence (charges 2.1-2.3); attack on the honour, good name or
dignity of the ROE (charges 3.1-3.2); as well as threats
and
intimidation via email to the ROE (charges 4.1-4.2), together with
the alternatives.
[3] From this factual
background it is clear that this matter has a long history and is
back at this Court for the second time round.
The Second Respondent
found that the Third Respondent had proved the guilt of the Applicant
in respect of each of the nine charges
and therefore that his
dismissal was both substantively and procedurally fair. The Applicant
initiated the present application.
Five grounds of review were
identified by the Applicant. The first ground is covering all the
nine counts. To obviate being repetitive
and after the grounds of
review are outlined, it is rather prudent to approach this
matter by first embarking on the enquiry
count by count at which
instance more facts will become clearer. The remaining four grounds
of review will thereafter be dealt
with.
Grounds for review
[4] Five grounds for
review outlined by the Applicant are:
1.
The Second Respondent committed serious misconduct in that he had
absolutely
no regard to material facts and evidence elicited in cross
examination by the Applicant as apparent from the award. Secondly,
the
Second Respondent deliberately ignored and had no regard to
Applicant’s written submissions and only appears to have had
regard to the Third Respondent’s submissions as apparent from
the award.
2.
Delay to institute disciplinary action and failure to apply
progressive disciplinary
measures. The Second Respondent is alleged
to have not decided the issue at all and made a ruling on evidence
that was not before
him and or presented by Ms Robertson. Applicant
said that there was no evidence that the application of corrective
discipline through
a final written warning could not have been
sufficient to rectify any alleged misconduct as per the Third
Respondent’s Policy
on progressive discipline.
3.
Duplication of charges - The Second Respondent is said to have
refused to arbitrate
and make a ruling on the basis of evidence
placed before him to the effect that a variety of e mails or same
source was used for
different species of misconduct in terms of his
own definition of heaping of charges.
4.
Breakdown in employment relationship – Applicant submitted that
the Second
Respondent failed to arbitrate and to decide on this issue
at all in his award. Applicant contended that Ms Robertson’s
evidence
of a breakdown in the trust relationship between Applicant
and the Third Respondent, and what she purported to be the breakdown
in the meeting of 1 October 2013 was a blatant untruth and a
fabrication in response to the Applicant Labour Court application
in
2015. After dismissal – Applicant submitted that writing e
mails “internally” as a dismissed employee as he
usually
did could not constitute a breakdown in the trust relationship and
simply amounted to prohibition of speech.
5.
Credibility and untruthfulness of Ms Robertson’s
evidence
-
Applicant
submitted that the Second Respondent failed to have regard to Ms
Robertson’s credibility and untruthful nature of
her evidence
as appears from the record and pleadings other than having paid lip
service to having considered both witnesses credibility.
Applicant
said that Ms Robertson evidence was wholly untruthful, perilous and
motivated by an ulterior and personal motive and
was intended to
ensure that his return to third Respondent was not possible.
[5] The fifth ground is
necessarily part and parcel of the enquiry whether the Applicant is
guilty of any charges and if guilty
of any, what the appropriate and
fair sanction is. It will accordingly not be treated as a standalone
ground in line with the principles
governing a review test.
Effectively therefore there are four grounds of review to consider.
[6] The opposition to
this application is premised on the simple ground that the applicant
is seeking to appeal the arbitrator’s
decision by demonstrating
that the award was incorrect and he does so by assessing the award in
a piecemeal fashion. Such an approach
was said to be impermissible in
review proceedings such as these. It is submitted that the award is
an admirable one as it contains
a comprehensive yet succinct summary
of the evidence and the various issues in dispute. The Commissioner’s
reasoning is said
to be clear and compelling. None of the defects
referred to in the judgments alluded to above is said to be apparent
from the award.
Even if such defects were present they are said to be
insufficient to render the award unreasonable.
Test for review
[7] The law has become
trite that in considering whether the arbitration award of a
Commissioner is reviewable, this Court has to
consider whether the
decision reached by the Commissioner is one that a reasonable
Commissioner could not reach
[2]
.
In respect of the reasonableness test it is worth recalling that
awards are not meant to be perfect or satisfactory in all respects.
The mere fact that an award is unsatisfactory in one or more respects
does not mean that it is unreasonable.
[3]
The ultimate principle upon which a review is based is justification
for the decision as opposed to it being considered correct
by the
reviewing court; that is whatever this Court might consider to be a
better decision is irrelevant to review proceedings
as opposed to an
appeal. Thus, great care must be taken to ensure that this
distinction, however difficult it is to always maintain,
is
respected
[4]
. An additional
consequence of the distinction between appeals and reviews is that
reviews are:
“
..
considered on the totality of the evidence not a fragmented,
piecemeal analysis. As soon as it is done in a piecemeal fashion,
the
evaluation of the decision arrived at by the arbitrator assumes the
form of an appeal. A fragmented analysis rather than a
broad-based
evaluation of the totality of the evidence defeats review as a
process.”
[5]
The charges and the
first review ground
[8] To the extent that
the facts of this matter relate to one aspect, charges about such
facts shall be dealt with jointly.
Charges 1.1 and 1.2
[9] The Applicant was
alleged to have committed gross insubordination in the following
respects;-
1.1 A refusal and/or
failure by the employee to arrange a teleconference call to discuss
his supervisory assessment, despite being
asked to do so by his
manager on more than one occasion;
1.2 A refusal
and/or failure by the employee to attend a meeting with his manager
to discuss various issues which he raised
with his manager and her
manager (NOE),
[10]
These charges find their genesis in the scoring of 54% awarded by Ms
Robertson to work performance of the Applicant in her
capacity as his
Supervisor of the Applicant. Upon receipt of the scoring the
Applicant requested Ms Robertson to furnish him with
information and
documents on the basis of which the scoring was done. He intimated
that he was considering lodging a grievance.
Thus far, this is a
reasonable request by an employee who sought the verification of an
assessment that was already done by his
supervisor. He was entitled
to this information as the supervisor, acting on behalf of the
employer, had made a decision. It must
be noted that he did not ask
for a review of the assessment. Ms Robertson had the opportunity to
demonstrate that her assessment
was not visited by any irrationality,
arbitrariness, vindictiveness and the likes. Her response was the
beginning of complications
in this matter. She called for a meeting
with the Applicant, asserting
that it was how she dealt with
such matters. Nowhere in her evidence did she refer to any regulation
or policy entitling her to
act as she proposed. Her employer is a
creature of statute and therefore she had to back her approach with
some authority so that
it could be said that her instructions were
reasonable and lawful. Her reaction to a simple request frustrated
the course which
the Applicant wanted to pursue, namely the lodging
of a grievance.
[11] The approach adopted
by the Second Respondent was to assume, wrongly in my view, that the
instruction by Ms Robertson to the
Applicant was reasonable as he
said nothing about its reasonableness.
[6]
The challenge by the Applicant left no room for such an assumption.
The exchanges by the Applicant were nothing but complaints
that his
supervisor was sidestepping his request. There really was no need for
any meeting between the Applicant and Ms Robertson
on this issue as
she had completed her assessment. The two charges were ill founded
and conviction on them was premised on misdirection
in failing to
conduct a proper enquiry, leading to an unreasonable result.
Charges 1.3 and 1.4
[12] Here, the Applicant
was alleged to have committed gross insubordination in the following
respects;-
1.3
The refusal and/or failure by the employee to attend with the
Regional Control Prosecutor
about part-heard matters of Mr Hole,
despite being advised to do so; and thereafter agreeing with the ROE
to attend the meeting
but then failing to do so when advised that the
employer would not be taking the same stance as the NPA.
1.4
A refusal and/or failure by the employee to give his manager
information about the practitioners
who were on record in the
part-heard matters in Mr Hole’s court.
[13] There had been
problems between Mr Hole, a Regional Magistrate, and the President of
the Regional Court, Mr Nqadala, leading
to Mr Hole being stopped from
presiding as a Regional Magistrate. An arrangement was made for his
return to come and complete his
partly-heard criminal matters. The
Third Respondent had to be involved in the arrangements for further
evidence to be led as its
practitioners represented some of the
accused. Two meetings were then scheduled for 11 and 26 July 2013
inter alia
, to make arrangements for the hearing of further
evidence.
[14] When she was
cross-examined the evidence of Ms Robertson about whether or not she
gave an instruction on the Applicant to attend
the meeting of 11 July
2013 is clearly that she did not directly give such instruction.
[7]
Some of this evidence reads:
“
All right
Cordelia, you are not really helping us. Okay, then I will start
again. Right let’s deal with the meeting of the
11
th
July. Did you give me an instruction to attend the meeting? Yes or no
---- Not directly, no
Not, Am I correct that in
the morning of 11
th
I had a discussion with you where I actually mentioned to you that I
had a conflict in attending the meeting? ------- We had a
telephonic
discussion, you may have mentioned to me that you had a conflict. I
don’t specifically recall that. Suffice to
say Mr Ligaraba, the
NPA also had a conflict, yet that meeting was attended by them.”
[8]
----------
“
Yes, And put the
views of the DPP in respect of the conflict. Now in that
conversation, Cordelia, did you give me an instruction
to say Mr
Mayisela, despite the conflict that you are referring to, I am
telling you to attend the meeting? Oh was it your response
that I
should tell Mr Nqadala that Legal Aid will not be attending? ----- My
Response was as per the email, that Legal Aid will
not be attending
because I think you mentioned Metyosinyane is not available.”
[9]
[15] In respect of the
meeting of 26 July 2013, the Applicant informed Ms Robertson that he
would attend the meeting. Later, he
delegated Messrs Mabaso and Bergh
to attend and they attended the meeting. The evidence of Ms Robertson
is that the Applicant had
the power to delegate in the instance. What
she raised as a query was that she was not kept informed of such
change. The Applicant’s
ground of review is that the Second
Respondent failed to consider cross- examination evidence. The
reading of the transcript shows
clearly that the Applicant elicited
evidence favourable to his version through cross-examination but that
the Second Respondent
failed to consider such evidence. It is clear
that had such evidence been considered properly a verdict of not
guilty would have
been returned on this charge. The evidence led did
not support the preferred charge. This issue did not even appear in
the list
of matters which the Applicant and Ms Robertson were
instructed By Mr Nair to discuss and resolve later in that year. The
Commissioner
thus failed to apply his mind to evidence led and
consequently issued an unreasonable decision pertaining to this
count.
[16] I now consider the
charge of a refusal and/or failure by the employee to give his
manager information about the practitioners
who were on record in the
part-heard matters in Mr Hole’s court. The submission by the
Applicant is that the Second Respondent
failed to arbitrate and make
a ruling on the issue he was required to arbitrate and rather opted
to make a finding on the wrong
premises in as far as it relates to
his finding that matters were deeply confrontational. Secondly, the
Second Respondent is said
to have completely failed to arbitrate and
deal with the content and nature of the two e mail statements
“purported”
to be insubordinate as required
including Ms Robertson’s failure to report the incident in the
meeting of the 1
st
October 2013.
[17] The background facts
to this charge are essentially that in the preparatory meeting also
referred as the pre-trial conference,
held to organise how partly
heard matters were to be finalised, the names of Messrs Mabaso and
Bergh were given as legal representatives
who would appear for the
accused. A report to that effect was then compiled for submission to
the Secretary of the Magistrates’
Commission. Before the report
was sent off an amendment was effected on it where Mr Bergh was
substituted by the Applicant. When
Mr Nqadala sent the report he then
expressed some concerns about the substitution of Mr Bergh by the
Applicant. He said that the
change was not only curious but had not
been communicated to other stakeholders and that his readiness to
deal with the outstanding
matters had not been confirmed. Those
remarks were made in an email correspondence which was copied to Ms
Robertson.
[18] On 10 September 2013
at 14h15 Ms Robertson sent an email to the Applicant seeking
confirmation that he was taking over and
that he was prepared and
ready for such appearance. She referred the Applicant to the concerns
raised by Mr Nqadala contained in
her email trail. The Applicant’s
response of being prepared and ready was noted on the body of the
email he had received
from Ms Robertson. Then at 15h22 of the same
day Ms Robertson sent an email asking the Applicant to urgently
advise her of the
names of two legal practitioners that were at that
time involved in those partly-heard matters. The response from the
Applicant
was given on the next day, 11 September 2013 at 08h28. It
reads: “I am not sure what the issue is now. Is Mr Nqadala
going
to tell me how to run the Kimberly JC. Tks.” On the
same day at 08h49 Ms Robertson wrote: “Please advise urgently
who the current practitioners are on these matters.” At 08h55
of the same day the Applicant wrote: “Is there any reason
why I
should provide you with those details!” At 08h58 of the same
day Ms Robertson wrote: “Please provide me with
these details
as requested.” Only at 09h00 did the Applicant finally give
required information of Messrs Bergh and Mabaso.
[19] The second
Respondent in dealing with this charge had the following,
inter
alia
, to say:
“
After the meeting
of 26 July 2013 Ms Robertson was given conflicting information as to
who would be appearing in the Hole court
and sought to clarify it
with the employee. The employee declined to give the required
information at first and, instead, queried
the status of persons who
were commenting on the matter and asked (again rhetorically) whether
there was any reason why he should
provide her with the requested
details, before giving the names in question to Ms Robertson.
55.
Both parties argued for the reasonableness of their conduct in
respect of this charge. But that is not really the point;
the point
is whether the actions and words of the employee constituted a
challenge to the authority of the employer. It is also
apparent that
by this stage matters were deeply confrontational; when this happens,
even normally insignificant aspects - like
a delay of thirty minutes
in answering, or the tone in which something is stated or asked –
acquire significance. In the
context of the ongoing relationship
between the two protagonists, it constitutes insubordination on the
part of the subordinate
and the challenge to Ms Robertson’s
authority is palpable throughout. I find the employee guilty of both
these charges.
”
[20] During
cross–examination the Applicant unsuccessfully sought a
concession from Ms Robertson that in the internal disciplinary
hearing and at the first arbitration hearing she had agreed that by
his question in response to her request, it was a clarity seeking
question. Ms Robertson explained successfully why she had erred in
her answers at the time. The Applicant’s challenge to
this
finding must clearly fail. He was on the provocative mission and as
the trail shows Ms Robertson kept her cool. As the Third
Respondent
correctly argued, the Commissioner understood very well what the
issues were here and he applied his mind appropriately
to them and
the conclusion he reached is indeed one that a reasonable decision
maker could reach.
Charges 2.1 and 2.3
[21] These are charges of
gross insolence where it was alleged that the Applicant:
2.1
accused his manager of going on a witch hunt without any evidence
and/or facts in support
of his allegation.
2.3
screamed and shouted at his manager over the telephone on 13
September 2013 that he wanted
to be suspended and that he would be
contacting the CEO and chairperson of the employer to suspend him.
[22]
The first charge finds its existence from email correspondence of 26
March 2013. The Applicant’s work performance was
assessed for
the relevant period and Ms Robertson then communicated the results to
the Applicant in March 2013 to be 54%. At 09h07
the Applicant issued
an email to Ms Robertson copied to Mr Nair in the following terms: “
I
must state it to you that I am now demoralized! I live for this
organization and now that is how I am evaluated. Tks
”
At
09h21 Ms Robertson responded in an email which reads: “I will
call yo
u to discuss this. I am also not
sure why you copied the NOE on this email as you report to me and
should discuss issues with me.
Tx and regards”
At
13h31 the Applicant wrote back and said: “
I
copied Brian because this is part of the witch-hunt process. I am
sure you are angry now that I could not provide you with comments
on
the newspaper article as you requested and not because I refused, but
because I have no comment on a document leaked to the
press. Tks.”
[23]
The submission by the Applicant is essentially that
the Second
Respondent failed to arbitrate and make a finding to the fact that
the word “witch hunt” was used in an insolently
and/or
that the word was insulting as per Ms Robertson’s evidence and
rather opted to rephrase the issue in dispute in his
award. Applicant
submitted that the Second Respondent made no finding that the word
was used in an insolent manner and appears
to have found Applicant
guilty of merely using the word which usage is insolent. He said that
the charge was false and a fabrication.
[24] The Second
Respondent’s finding on this charge is that:
“
It is common cause
that the employee, in his email of 26 March 2013, told Ms Robertson
that he had copied Mr Nair on his emails
expressing his
dissatisfaction with his assessment because what she was doing was
part of the witch hunt process. This allegation
was clearly an
accusation that Robertson was orchestrating some kind of campaign
against him. The employee’s defence was
that the words used
were true; however, there is certainly nothing in the evidence, apart
from his own opinion, to justify the
employee’s allegation of a
campaign against him. The conduct is grossly insolent and the
employee is guilty of this charge.”
[25] At arbitration the
Applicant conceded to the making of the statement complained of. Ms
Robertson testified that she felt intimidated
by the utterance made
by the Applicant. She said that she did not take disciplinary action
willy nilly against her staff and so
wanted to give the Applicant an
opportunity to explain hi
mself. She regarded the
utterance by the Applicant to be serious misconduct. Insolent conduct
is one which is:
“
offensive,
disrespectful, impudent, cheeky, rude (disrespectful in speech or
behaviour), insulting or contemptuous.”
[10]
[26] The context in which
the utterance was made is significant. The Applicant was aggrieved by
the scoring he had received from
Ms Robertson. He was so angry that
he felt he had to communicate his displeasure to Mr Nair who was Ms
Robertson’s supervisor.
Looking at the scores that the
Applicant awarded to those reporting to him of 92% and 97%, a score
of 54% was certainly disheartening
to any diligent and purpose driven
worker. Such low score should rather elicit a deep introspection and
a desire to be furnished
with details for such assessment. The
Applicant indeed wanted such details but he became offensive and went
on the attack long
before such details could be given to him. Telling
his supervisor that she was on a witch hunt was certainly derogatory,
disrespectful
and cheeky.
[27] The Applicant sought
but could not successfully find support for the defence he raised
even as he relied on those charges of
misconduct for which he was
found not guilty. The allegations forming the basis for the other
charges had not even surfaced to
any degree of concern as this
incident took place very early in the confrontation he had with Ms
Robertson. In his cross-examination
of Ms Roberts the Applicant
conceded that he could not remember the circumstances prevailing at
the time of the email in question.
He said that he would not be able
to show that there was any witch hunt as a result of the 25
charges.
[11]
When Ms Robertson
was asked in the disciplinary hearing by the Chairperson and the
Initiator as to whether she asked the Applicant
what he meant by the
word “witch hunt” her response was
:
“I d’nt think to that one
”.
The Applicant submitted then that the charge was an afterthought
eight months later. Assuming in his favour that it is
an
afterthought, it does not derogate from the fact that the utterances
were derogatory, disrespectful and cheeky. It might talk
to the
appropriateness of the sanction. The Second Respondent has
accordingly not been shown to have misconceived the nature of
the
enquiry he was called upon to conduct. Nor has he been shown to have
reached a decision which a reasonable decision maker could
not reach
on this charge.
[28] I now turn to the
enquiry whether the Applicant
screamed and shouted
at his manager over the telephone on 13 September 2013 that he wanted
to be suspended and that he would be
contacting the CEO and
chairperson of the employer to suspend him. Three emails of Friday,
13 September 2013, and a subsequent
telephone communication between
the Applicant and Ms Robertson form the background to this charge. It
should be noted that the
partly-heard matter of Mr Hole were to
resume on the following Monday, 16 September 2013. So, on 13
September 2013 at 14h51 Ms
Robertson wrote to the Applicant saying:
“
I refer to our telephonic discussion
now. Please ensure that the part-heard matters are completed by the
practitioners who commenced
with these part-heards
.
At 15h01 Ms Robertson again wrote: “
Please
note that the following are instructions:
That the practitioners
(Bergh and Mabaso) complete all their part-heards with Mr Hole.
That preference be given
to these matters by the practitioners Bergh and Mabaso.
That a temporary
practitioner is appointed to assist in Bergh’s and Mabaso’s
courts.
That Advocate Fourie be
approached about the temporary practitioner position.
That
should you be unable to find a temporary practitioner, that I am
contacted immediately so that I can assist in finding a temporary
practitioner.
”
At 15h04 the Applicant
responded by saying: “
May I please be
suspended because I am unable to make decisions on behalf of my JC
and I am also been given instructions I cannot
execute.
”
[29] Still on 13
September 2013 the Applicant then telephoned Ms Robertson. It is the
exchanges the two had and the nature thereof
which form the subject
of this charge. Ms Robertson described the manner of speech by the
Applicant as in a raised voice that was
unacceptable as he was
screaming at her. The Applicant denied the allegations. The Second
Respondent made the following finding
on the charge:
“
Ms
Robertson testified that the employee did what is stated in this
charge. The employee denied it. In light of the surrounding
evidence
about the relationship between Robertson and the employee, in the
fact that the employee did indeed ask to be suspended
and that he was
unhappy about Robertson’s decision that he was not to appear in
the Hole matters, the probabilities lie in
favour of the employer.
This constitutes serious insolence and the employee is guilty of the
charge.”
[30] The applicant
submitted that the Second Respondent failed to have regard to the
blatantly false evidence by Ms Robertson in
cross examination
regarding the nature and content of the conversation on 13 Sept 2013
as set out in applicant’s founding
and supplementary affidavits
and opted to decide the matter wrongly based on inferences which
inferences drawn by the Second Respondent
were not consistent with
the proven facts. He submitted that Ms Robertson description of the
content of the conversation in the
second CCMA hearing was seriously
at odds with her previous descriptions of the same conversations,
pointing out such disparities
in the evidence. He contended that Ms
Robertson, in her opposing affidavit did not deny or at the very
least explain the many contradictory
versions which the Second
Respondent failed to arbitrate.
[31] As can be seen from
the award the Second Respondent chose to decide this issue only on
the probabilities of the matter than
to single out the disparities. I
believe the submissions by Mr Bosch appearing for the Third
Respondent are spot on in this respect
where the attack on the award
is premised on contradictory evidence of a witness. Courts have made
it clear that it is not necessary
for a commissioner to engage in an
inquiry into the credibility of witnesses to resolve conflicting
versions if he or she is able
to resolve the conflicting versions
with reference to the probabilities. In
First
Garment Rental (Pty) Ltd v CCMA and others
[12]
the Court summarised the approach to mutually destructive versions as
being that the court has to weigh the evidence tendered by
the
parties and apply the probability test and if necessary take into
account the credibility of the witnesses. In
National
Employers’ General Insurance Co Ltd v Jagers
[13]
the
Court held that:
“
It
does not seem to me to be desirable for a court first to consider the
question of credibility of the witnesses as the trial judge
did in
the present case, and then, having concluded that enquiry, to
consider the probabilities of the case, as though the two
aspects
constitute separate fields of enquiry. In fact, as I have pointed
out, it is only where a consideration of the probabilities
fails to
indicate where the truth probably lies, that recourse is had to an
estimate of relative credibility apart from the probabilities.”
[32] The arbitrator
preferred the employer’s version in respect of this charge
based on the probabilities. He was perfectly
entitled to do so. I
t
is only where a consideration of the probabilities fails to indicate
where the truth probably lies that recourse may be had to
an estimate
of relative credibility apart from the probabilities. It remained
common cause that the telephonic exchange between
the two took place.
Ms Roberts had just issued a firm and written instruction stopping
the Applicant from appearing in the partly-heard
matters where he had
chosen to appear. She directed him what to do henceforth. The
Applicant wasted no time as he responded in
a space of about three
minutes, asking to be suspended and indicating that he had been given
instructions which he said he could
not execute. Their conversation
had to be about this issue and more. Ms Robertson’s evidence at
the various fora was that:”
He said to me words to the effect
that ….” She was not quoting verbatim what she
believed the Applicant to have
said. The email sent to Ms Robertson
by the Applicant shows that he was upset at the time. Therefore the
attack on the award in
this respect lacks merits as a proper enquiry
was conducted producing a reasonable decision.
Charges 3.1 and 3.2
[33]
These two charges are about a
n attack on the honour, dignity
and/or good name of the manager (ROE), in that:
3.1
during the period March 2013 until his suspension
on 22 October 2013 the employee made tacit accusations of racism
against his manager
and in so doing attacked her honour and
integrity.
3.2
the employee made unfounded accusations of harassment and in that his
responses to his manager’s
reasonable requests that he attend
meetings on 4, 10 or 12 June 2013 (as the dates were changed), were
unacceptable, insolent,
rude and disrespectful.
[34] The allegation that
the employee made tacit accusations of racism against his manager and
in so doing attacked her honour and
integrity has its origin in the
email of 10 April 2013 at 09h22 from the Applicant relating to his
dissatisfaction that he was
assessed and given 54% for his work
performance at the time. He wrote:
“
I
will appreciate if I can have the explanation in writing as
requested. I am unhappy about the assessment and I intend using your
explanation as reasons for my grievance. I think I am vilified and
this has been coming on for a very long time now.
I just don’t feel
safe in my work anymore as an African Manager in this region and I
intend taking matter up with Management
and the Portfolio Committee.
I
honestly think that Africans are being vilified in the region under
the coded name of poor performance and it’s also clear
in the
non-appointment of African managers in the region
.”
[35] The Second
Respondent made a finding on this charge by saying:
“…
Ms
Robertson testified that this was a tacit accusation of racism
against her. The employee stated that there was racism in the
region
and I will assume that his defence to this charge is based on his
belief that these statements are true and hence justified.
It was
noted on the record at arbitration that, in terms of South African
racial categories, the employee is ‘African’
and Ms
Robertson ‘Coloured’. Objectively, the statements are
clearly an allegation that in the region managed by Ms
Robertson,
Africans have a particular problem and that Ms Robertson is by
implication racist. The allegation is obviously tacit.
While the
employee holds the view that his allegation of racism is justified,
there is no evidence to support this - only allegations
and denials
that came thick and fast, on which I will make no finding; and even
if the statistics quoted by the employee are correct,
there are any
number of interpretations of this. More importantly, my task is not
to decide what constitutes racism in the organization
or to dissect
the politics of the employer’s region, but to ask whether it
was appropriate for the employee to make the accusation
to his
superior. I find that it was not and that this conduct constitutes an
unjustified personal attack on the dignity, honour
and good name of
his manager. To put it differently, if this was the considered
opinion of the employee, it would be entirely appropriate
- indeed,
important - for him to raise the issue in a different way in a
different forum. I find the employee guilty on this charge.
[36]
When stated in brief the submissions of the Applicant are essentially
that
the second Respondent failed to arbitrate over the issue
he was requested to arbitrate on and opted to find the Applicant
guilty
on a charge of which he was already found not guilty as
apparent from the award. Secondly, the Second Respondent made no
finding
that the allegations were unfounded or untrue as required. Ms
Robertson never testified that the Applicant’s statement was
unfounded or false other than to say that the statement was
insulting, unprofessional and rude, a charge that was not proved
under
the insolence charge. It is this statement which appears to be
the reasons for the Second Respondent’s findings in respect
of
a charge of which the Applicant had already been found not guilty. He
said that Ms Robertson evidence of the attack on her honour,
good
name and dignity was based on the unfounded allegations and yet there
was no evidence that his statement was unfounded or
false. He
referred to an incident when the initiator asked Ms Robertson to
explain why she was of the view that her honour and
dignity were
attacked and Ms Robertson said it was because the statement was
completely unfounded
.
He said that he was charged and
dismissed for one e mail dated 10 April 2013 and not for other
subsequent emails and that therefore
other e mails were irrelevant to
these proceedings. He said that the Third Respondent’s case was
that the allegations he
made were unfounded and yet the Third
Respondent did not present evidence in support thereof and chose not
to even provide the
performance scores of the managers on poor
performance as requested.
[37] The Applicant said
that the charge was a mere means to deny him freedom of expression,
saying it was not the Third Respondent’s
case that he should
not have made the allegation, but should have done so through a
grievance. Yet he was not charged for having
failed to lodge a
grievance. To him, it did not seem that it was the Third Respondent’s
case that he should not have made
the allegation, but that he should
have substantiated it. He contended that the allegations were
sufficiently substantiated and
if there was any confusion, same
should have been cleared with him seven months earlier in April 2013
and instead Ms Robertson
testified that she did not respond but
reserved her rights. Therefore Ms Robertson was to be taken as having
clearly understood
the content of the statement and needed no further
substantiation. Finally, he said that the Third Respondent had to
prove that
the Applicant breached a rule in terms of the Third
Respondent’s policy but failed.
[38]
The Applicant clearly regarded 54% given to him by Ms Robertson to
mean that he exhibited poor performance at the time. He
believed that
he was vilified thereby. To that extent he said that he was no longer
feeling safe in his work anymore as an African
Manager in his region.
The Applicant was directing these comments to Ms Robertson and was
blaming her for a differential treatment
of Africans in that region
on the basis of their racial composition. Essentially, the Applicant
was complaining about the practice
of racism in his region. He
further indicated the steps he intended to take by reporting the
matter to management and to the (Justice)
Portfolio Committee. The
Applicant was perfectly entitled to take these steps, provided he
would be able to substantiate his allegations
when the matter was
investigated, as it had to be. It then begs the question whether
announcing a complaint that one has and the
steps he wants to take
could amount to any act of misconduct charged. I do not think so. To
hold that the Applicant misconducted
himself has the consequence of
protecting instead of unearthing an allegation of racism, which, if
true, is itself a very serious
misconduct that must not be
glossed over, accommodated or excused.
[39] I am very much alive
to the approach adopted by this Court that it is not acceptable to
simply accuse a person of being racist.
[14]
The sentiments expressed in the SACWU judgment
[15]
were recently endorsed by the Labour Appeal Court in
City
of Cape Town v Freddie and others.
[16]
The Applicant referred issues between him and Ms Robertson to Mr
Nair, being part of management as he indicated he would. It behoved
management to investigate all allegations made by the Applicant so as
to establish veracity thereof. I am not sure if the route
taken by Mr
Nair was a correct approach in the circumstances. I have the benefit
of a recent warning issued by the Constitutional
Court on issues
pertaining to racism in South African Revenue Services v Commission
for Conciliation Mediation and Arbitration
[17]
where the following,
inter
alia
,
was said:
“
[8]
South Africans of all races have the shared responsibility to find
ways to end racial hatred and its outstandingly bad outward
manifestations. After all racism was the very foundation and essence
of the apartheid system. But this would have to be approached
with
maturity and great wisdom, obviously without playing down the
horrendous nature of the slur. For, the most counter-productive
approach to its highly sensitive, emotive and hurtful effects would
be an equally emotional and retaliatory reaction. But why is
it that
racism is still so openly practised by some despite its obviously
unconstitutional and illegal character? How can racism
persist
notwithstanding so much profession of support for or commitment to
the values enshrined in our progressive Constitution
and so many
active pro-Constitution non-governmental organisations? (Sic)
[9] Are we perhaps too
soft on racism and the use of the word kaffir in particular? Should
it not be of great concern that kaffir
is the embodiment of racial
supremacy and hatred all wrapped up in one? My observation is that
very serious racial incidents hardly
ever trigger a fittingly firm
and sustained disapproving response. Even in those rare instances
where some revulsion is expressed
in the public domain, it is but
momentary and soon fizzles out. Sadly, this softness characterises
the approach adopted by even
some of those who occupy positions that
come with the constitutional responsibility or legitimate public
expectation to decisively
help cure our nation of this malady and its
historical allies.
[10]
Another factor
that could undermine the possibility to address racism squarely would
be a tendency to shift attention from racism
to technicalities, even
where unmitigated racism is unavoidably central to the dispute or
engagement. The tendency is, according
to my experience, to begin by
unreservedly acknowledging the gravity and repugnance of racism which
is immediately followed by
a de-emphasis and over-technicalisation of
its effect in the particular setting. At times a firm response
attracts a patronising
caution against being emotional and an
authoritative appeal for rationality or thoughtfulness that is made
out to be sorely missing
. (My Emphasis)
[11] That in my view is a
nuanced way of insensitively insinuating that targets of racism lack
understanding and that they tend
to overreact. That mitigating
approach would create a comfort zone for racism practitioners or
apologists and is the most effective
enabling environment or fertile
ground for racism and its tendencies. And the logical consequence of
all this gingerly or “reasonable”
approach to racism,
coupled with the neutralising reference to the word kaffir as the “k
word”, is the entrenchment
and embodiment of racism that we now
have to contend with so many years into our constitutional democracy.
Imagine if the same
approach or attitude were to be adopted in
relation to homophobia, xenophobia, arrogance of power, all facets of
impunity, corruption
and similar societal ills. That somewhat
exculpatory or sympathetic attitude would, in my view, ensure that
racism or any gross
injustice similarly handled, becomes openly
normalised again. Those who should help to eradicate racism or gross
injustice could,
with that approach, become its unintending,
unconscious or indifferent helpers.
[12] The Constitution is
the conscience of the nation. And the courts are its guardians or
custodians. On their shoulders rests
the very important
responsibility of holding our constitutional democracy together and
giving hope to all our people that their
constitutional aspirations
will be realised. To this end, when there is litigation about racial
supremacy-related issues, it behoves
our courts to embrace that
judgment call as dispassionately as the judicial affirmation or oath
of office enjoins them to and unflinchingly
bring an impartial mind
to bear on those issues, as in all other cases.
[13] Judicial Officers
must be very careful not to get sentimentally connected to any of the
issues being reviewed. No overt or
subtle sympathetic or emotional
alignments are to stealthily or unconsciously find their way into
their approach to the issues,
however much the parties might seek to
appeal to their emotions. To be caught up in that web, as a Judicial
Officer, amounts to
a dismal failure in the execution of one’s
constitutional duties and the worst betrayal of the obligation to do
the right
thing, in line with the affirmation or oath of office.
[14]
Bekker CJ, Mohamed CJ and Zondo JP observed in essence that racist
conduct requires a very firm and unapologetic response from
the
courts, particularly the highest courts. Courts cannot therefore
afford to shirk their constitutional obligation or spurn the
opportunities they have to contribute meaningfully towards the
eradication of racism and its tendencies. To achieve that goal would
depend on whether they view the use of words like kaffir as an
extremely hurtful expression of hatred and the lowest form of
contempt
for African people or whether the outrage it triggers is
trivialised as an exaggeration of an otherwise less vicious or
vitriolic
verbal attack
.
[40]
It needs to be emphasised then that racist conduct requires a very
firm and unapologetic response from the courts, particularly
the
highest courts. Courts cannot therefore afford to shirk their
constitutional obligation or spurn the opportunities they have
to
contribute meaningfully towards the eradication of racism and its
tendencies. The Commissioner’s findings that his task
was
to
ask whether it was appropriate for the employee to make the
accusation to his superior, that it was not, and that this conduct
constituted an unjustified personal attack on the dignity, honour and
good name of his manager were failures on his part to conduct
a
proper enquiry and it produced an unreasonable result that the
Applicant was guilty of misconduct. He was not. In passing, I
observe
that if the dismissal of the Applicant was allegedly based on him
being discriminated as envisaged in section 187 (1) (f)
of the Act,
the First Respondent would lack jurisdiction to arbitrate this issue.
The Applicant should not have been charged with
this misconduct in
the first place, whether one relies on the email of 10 April 2013 as
the evidence of Ms Robertson suggested
or on subsequent emails as the
charge suggested but was not supported by such evidence.
[18]
The review application succeeds on this ground.
[41] The allegation that
the employee made unfounded accusations of
harassment and in that his responses to his manager’s
reasonable requests that
he attend meetings on 4, 10 or 12 June 2013
(as the dates were changed), were unacceptable, insolent, rude and
disrespectful must
now be considered. The Applicant made a number of
allegations that he was harassed by Ms Robertson who denied same,
averring that
the situation was aggravated by
copying those
allegations to her seniors. Further, the Third Respondent referred to
an email of 29 May 2013 about the June meetings,
in which the
Applicant said if they met, he would tell Ms Robertson things she did
not want to hear, that he would tell her what
she needed to do as a
person in order for her to change for the better. He then requested
her not to hug him when they met because
her hugs were not genuine
and she was not to travel with him or go shopping with him in
Kimberley, and that they were to treat
each other formally with no
unnecessary jokes.
[42] Applicant submitted
that the Second Respondent failed to arbitrate over the dispute he
was requested to arbitrate and opted
to make a finding on a charge
that the Applicant was already found not guilty of. That was a charge
of gross insolence under count
2.2 where he was found not guilty of
gross insolence by accusing his Manager of racism and threatening to
report her to the Port
Folio Committee. He said that the Second
Respondent made no findings that the accusation was unfounded as a
basis for the third
Respondent’s case. He said that Ms
Robertson own evidence confirmed that the allegations were not proved
by the Third Respondent
to be false and merely amounted to a
prohibition of freedom of speech or expression and relied on the
following evidence elicited
during cross-examination:
“
Mr
Mayisela:
Ms Robertson, I’m going to
put it to you, based on your own evidence, that the word harassment
was taken from my email and
constituted as a charge. --- That is
possible, yes.
And
on that basis, and you’ve confirmed that there was no
investigation that proved that the allegation was false, or true.
---
That is correct, there was no investigation.
Whereto
you further that it cannot be that an employee can be found guilty
and dismissed for having have made an allegation that
has not proven
to be false. MR BOSCH: It’s an argument, Mr.
Commissioner.”
[19]
(Sic)
[43]
The Applicant said that
it is not misconduct to use the word
harassment in that Ms Robertson herself used the word when she
accused the Applicant of harassment
based on e mails that she did not
even read relating to how the Third Respondent was supposed to be
run. He said that it was not
misconduct to complain of harassment
when no grievance had been lodged as purported by Ms Robertson and
referred to her evidence
while being cross-examined where she said
that:
“
Mayisela: Were
these investigated and actually found to be false or true? ----- As
far as I know no investigation had been done.
Irrespective of whether
these were found to be false or true there it still does not excuse
your behaviour.
There was a grievance, if you felt
you were being harassed by me in any way whatsoever, you could have
filed a grievance at the
time and dealt with the matter, with your
issues on that basis. You never did that”.
And I
am not charged for failing to follow the grievance procedure, am I
right? --- Mr Commissioner, it’s not misconduct not
to follow
the grievance procedure.”
[20]
[44] In relation to this
charge the Second Respondent had the following to say:
“
Ms
Robertson testified that she found these remarks inappropriate and
hurtful. As for the employee, he said the allegation of harassment
was true so he was justified in making it. Once again, nothing in the
evidence indicates that there was any objective justification
for the
employee’s belief that he was being harassed. More importantly,
even if he had such a belief, it was inappropriate
and insolent to
raise them in this particular way. With regard to the second aspect
of this charge (the June meetings), the employee
had nothing much to
say and he certainly failed to either explain his remarks or the need
to state them to Robertson in this way.
Indeed, while this charge is
not formally one of insubordination or insolence, it could well have
been precisely that. I find the
employee guilty of this charge
.”
[45] There are two parts
to this charge. The first related to the accusations of harassment
and the second to the applicant’s
responses to the meeting
requests. Various e-mails were canvassed with the applicant in
relation to this allegation in cross examination.
However, the
employer relied only on those dealt with below in support of this
allegation. The accusations of harassment came from
both sides as has
been shown by evidence where Ms Robertson also accused the Applicant
of it. Accusations of harassment once made
by an employee need to be
investigated by an employer and depending on the outcome thereof
action may then be taken to protect
the complainant if prima facie
evidence justifies it or action may be taken again the complainant if
it is established prima facie
that he or she knowingly or recklessly
made false accusations. No such investigation was conducted leaving
room for conjecture.
Ms Robertson’s evidence on this aspect was
not convincing. She referred to emails of the Applicant made just
before the hearing
but when that issue was pursued her evidence
remained vague. She even referred to an email she never read. She
referred to one
sent to the Chief Executive Officer with no clear
indication of its relevance to the issue. It was never made clear
what was harassing
in being told how the business on the Third
Respondent was to be run, even if the advice was misguided.
[46] The second part of
the charge touches on the reasonableness of Ms Robertson’s
instruction on meeting attendance and I
found the instruction to lack
a foundation. To the extent that the charge touches on count 2.2, the
Applicant was acquitted of
it. The email of the Applicant in issue
here reveals Ms Robertson as a very amicable person who associates
and socialises well
with her colleagues, even when they were junior
to her. She does not come across as puffed up or high and mighty. If
anything,
this email shows that the Applicant would be deceiving
himself with fatal consequences to think that her friendliness meant
that
she would be condescending when it came to work performance. No
evidence of the impugning of honour good name and dignity was shown
to exist, even if it be conceded that there was no need for such
utterances to have been made. As such the conclusion reached by
the
Second Respondent has been shown to be one that a reasonable could
not reach.
Count 4.1
[47] This charge refers
to t
hreats and intimidation made via e-mail by the
employee to his manager (ROE) in that during the period of April 2013
to November
2013 he made a number of threats via e-mail to his
manager and to the HRM with the intention of intimidating his
manager. Reliance
was based on
emails in which the employee
threatens to report Ms Robertson to various internal and external
influential persons and bodies if
she continues acting as she is.
That included reporting Ms Robertson to the CEO, the Board, the
Parliamentary Portfolio Committee
and the Minister. It remained
common cause that the Applicant in fact reported Ms Robertson to Mr
Nair and to the Chairperson of
the Board, Judge President Mlambo. On
this charge the Second Respondent had the following to say:
“
The
employee’s case is simply that it is not intimidation to tell
someone what you are going to do. In one sense, I agree;
the employee
is certainly entitled to take whatever steps he may. However, the
real thrust of this charge is that, while the action
(the reporting)
may appear benign or even high-minded, it is actually not, because
the purpose of the threat is to undermine his
superior into simply
doing what the employee thinks she should do, presumably relying on
her fear of being put in a bad light with
those higher up to get his
way. In this sense it is a playground tactic that is actually yet
another manifestation of insubordination.
The employee is guilty of
this charge
.”
[48] The submissions by
the Applicant are that the Second Respondent failed to arbitrate and
make a finding on the issue in dispute
before him in that he failed
to rule whether Ms Robertson definition of intimidation constitutes
misconduct in terms of the Third
Respondent’s rules and whether
the said rule found application in the e mail correspondence to Ms
Robertson by the Applicant.
Secondly, the Second Respondent made a
finding that Ms Robertson was freighted by the Applicant’s
emails, evidence which
was not before the Second Respondent. He said
that Ms Robertson failed to deal with this averment in her responding
affidavit.
The Applicant contended that Ms Robertson definition was
not a definition or rule recognized by the Third Respondent’s
policy
and if it does, Ms Robertson definition was a nullity because
according to her own evidence the Applicant reported her conduct.
The
Applicant said that he was entitled to report any real or perceived
harassment by Ms Robertson because it was misconduct.
Lastly,
Ms Robertson evidence in the disciplinary hearing that the e mails
made her uncomfortable was a far cry from being intimidated
particularly because the alleged intimidations took place over a
period of seven months. Secondly, Ms Robertson evidence to the
effect
that the emails constituted propensity to violence verbal or physical
was a blatant untruth because she testified that Applicant
was not
charged for having had propensity to violence.
[49] This charge is
linked to the reasonableness of the instruction for the Applicant to
meet Ms Robertson to discuss the 54% issue.
On the basis of the
finding already made this charge ought not to have been sustained.
Further the Applicant did not just make
empty threats, he carried
them through by the reports he made. There is no suggestion by the
Third Respondent that the Applicant
did not believe in the
truthfulness of the allegations he made against Ms Robertson and
therefore that he was somewhat mischievous.
On the contrary there is
evidence which suggests that the Applicant, rightly or wrongly,
believed that his supervisor was issuing
incorrect instructions. The
circumstances of the reporting here may be compared to the making of
a protected disclosure by an employee
which should be encouraged
rather than discouraged so as to discover any wrong doing in the
workplace. Evidence of the Third Respondent
failed, in my view, to
disclose misconduct in support of the allegations for this charged.
The Second Respondent thus failed to
conduct a proper enquiry for
this charge with the result that he reached a conclusion which no
reasonable decision maker could
reach.
The second and third
grounds of review
[50] These two grounds of
review have now a limited scope for their consideration in the light
of the findings made in respect of
each count. Put differently, these
grounds may only be considered for the three charges that have been
sustained.
The delay to institute
disciplinary action
[51] The policy of the
Third Respondent is that, disciplinary steps, if any to be taken,
should be initiated within a reasonable
period of time. As a
background to this aspect, it needs to be considered that the
Applicant and Ms Robertson were not occupying
the same workplace
proximity. They were stationed in different provinces or regions of
the Republic of South Africa. Ms Robertson
was therefore not daily
exposed to what the Applicant was doing. Her assessment of the
situation depended much on correspondence.
Similarly with Mr Nair, he
was positioned at a different workplace to that of the two. Secondly,
the facts of this matter depended
on the development of other related
issue, such as development in the matter involving Mr Hole. Of
importance in this matter is
the fact that once Mr Nair was apprised
of the working challenges between the Applicant and Ms Roberts, he
took a position that
attempts were to be made to try and find an
amicable solution. That was perfectly understandable in the
circumstances lest he be
accused of being vindictive. Once he
realized that the matter could not be amicably resolved, he left it
to the parties to take
what each considered to be proper steps. He
was dealing with a matter involving legally qualified senior
personnel. The chief finding
of the Second Respondent is that:
“
While
the employer may have instituted formal proceedings earlier, the
delay does not indicate a waiver of this right to take action
nor
does it give rise to an inference that the employment relationship is
tolerable, as the employee claims. I find no unfairness
in respect of
this issue.”
[52] The submission by
the Applicant that the Second Respondent did not decide the issue at
all and made a ruling on evidence that
was not before him and or
presented by Ms Robertson is nothing but a bold unsubstantiated
allegation. The Second Respondent briefly
dealt with the issue and
did not rely on any irrelevant considerations. This ground must
accordingly fail.
Duplication of charges
[53] In the light of the
findings made on each charge this ground cannot be sustained
.
After
all, a set of facts may give rise to separate and distinct causes of
action
[21]
.
Breakdown in the trust
relationship
[54] At the onset, it
must be noted that the Applicant has been successful in many a ground
of review in this application. Even
more charges fell on the way from
the time he was charged and found guilty. Ms Robertson adduced
evidence of the breakdown in her
trust of the Applicant. In her
evidence Ms Robertson had, inter alia, the following to say about the
Applicant:
“
Well
I certainly want nothing to do with him any longer. I mean a meeting
he didn’t want to come to meetings, he was rude,
he was
insolent, he was disrespectful, unprofessional. He also as far as I’m
concerned, did not treat our stakeholders professionally,
which is
the way they should be treated. And that, as I say goes against the
complete grain of Legal Aid South Africa, the organisation
I work for
as well as my own personal feelings.”
[22]
[55]
This evidence of Ms Robertson must be seen against the findings made
in this application. That the Applicant did not treat
stakeholders
professionally, which is the way they should be treated, is not a
feature of the charges remaining against the Applicant.
While it has
been shown that the Applicant and Ms Robertson are not likely to
amicably work together, Mr Nair had no reported problems
with the
Applicant and there may be other
Regional
Operations Executives
who might work
amicably with him. The third Respondent is an organ of state which
operates in the whole of South Africa. While
the Applicant does
need to mend his ways, I am not of the view that the remaining
charges are of such serious magnitude as to render
dismissal a fair
sanction. I am of the view that had the Second Respondent been faced
with the three remaining charges, he would
probably have found
dismissal in the circumstances to be an unfair sanction. In terms of
section 193 (1) of the LRA the Applicant
is entitled to
reinstatement.
[56] Accordingly, I issue
an order and a finding in the following terms:
1.
The application to review and set aside the
arbitration award in this matter in relation to charges: 1.1; 1.2;
1.3; 3.1; 3.2 and
4.1 is granted;
2.
The Application to review and set aside the
arbitration award in this matter in respect of charged: 1.4; 2.1 and
2.3 is dismissed;
3.
It is found that the dismissal of the
Applicant by the Third Respondent in this matter was substantively
unfair;
4.
The third Respondent is ordered to
reinstate the Applicant to its employment to the position with a
salary rank of or one equivalent
to a Justice Centre Executive, with
effect from the date of his dismissal;
5.
In the event Ms Robertson is still the
Regional Operations Executive for the
Western and Northern Cape and is still at odds in working with the
Applicant, the Third Respondent
is not to place the Applicant in the
Western and Northern Cape but is to engage the Applicant in finding
an alternative position
for his placement in any other region in the
Republic of South Africa.
6.
The engagement in paragraph 5 hereof is to
take place immediately upon receipt of this order but is to be
finalized on or before
26 May 2017. In the event an impasse is
reached by the parties within the 20 court days of this order, the
first Respondent is
to be approached to appoint a senior Commissioner
to facilitate the process and his or her decision shall be an award
with a final
effect.
7.
The Applicant is to report for duty within
5 court days of this order at the Kimberly office where he used to
work. He shall continue
so reporting until paragraphs 5 and 6 hereof
are complied with. Soon after reporting on duty, the Third Respondent
is then to serve
him with a final written warning effective from the
date of its service to expire at the end of twelve calendar months
thereafter.
8.
No costs order is made.
____________
Cele J
Judge of the Labour Court
of South Africa
Appearances
For the Applicant: In
person
For
the Respondent: Adv.C.Bosch instructed by Everinghams Attorneys
[1]
Act
Number 66 of 1995 hereafter referred to as the LRA.
[2]
See
Sidumo
and Another v Rustenburg Platinum Mines Ltd and others
[2007] 12 BLLR 1097
(CC) and
Herholdt
v
v
Nedbank Ltd (Congress of South African Trade Unions as amicus
curiae
)
[2013] 11 BLLR 1074
(SCA).
[3]
NUM
and another v Rustenburg Platinum Mine (Mogalakwena Section) and
others
[2015]
1 BLLR 77
(LAC) at para 26
[4]
See
Bestel
v Astral Operations Ltd & others
[2011]
2 BLLR 129
(LAC) at para 18.
[5]
See
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and
others
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at para 21. See also
Potgieter
v Tubatse Ferrochrome & others
(2014) 35 ILJ 2419 (LAC) at para 36.
[6]
See
clause 7 of Schedule 8 – Code of Good Practice : Dismissals.
[7]
See
pages 179 to 181 of the transcript.
[8]
See
page 178 of transcript lines 3 to 13.
[9]
See
page 180 of transcript lines 18 to 25.
[10]
Palluci
Home Depot (Pty) Ltd v Herskowitz and others
[2015] 5 BLLR 484
(LAC) at para 20
[11]
See
pages 483 to 484 of the transcript.
[12]
[2015] 11 BLLR 1094 (LAC)
[13]
1984
(4) SA 437
(E) at 440I-441A
[14]
See
SACWU
and
Another v NCP Chlorchem (Pty) Ltd and Others
(2007)
28
ILJ
1308 (LC) at paras 12 and 13.
[15]
(2007 ) 28 ILJ 1303 (LC).
[16]
[2016] 6 BLLR 568
(LAC) at para 51
[17]
[2017] 1 BLLR 8 (CC)
[18]
See
transcript pages 401 to 406.
[19]
See
page 418 lines 15 to 25 of transcript.
[20]
See
page 416 lines 16 to 25 and page 417 line 1.
[21]
See also
Makhanya
v University of Zululand
2010 (1) SA 62 (SCA).
[22]
See
page 135 of the transcript, lines 4 to 11.