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[2018] ZALCJHB 332
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Mavhungu v Huyser NO and Others (JR152/14) [2018] ZALCJHB 332 (10 October 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR 152/14
In
the matter between:
KHATHUTHELO
MAVHUNGU
Applicant
and
COMMISSIONER
R. HUYSER
N.O
First
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
Second
Respondent
SOUTH
AFRICAN AIRWAYS (PROPRIETARY) LTD
Third
Respondent
Heard:
2 May 2018
Delivered:
10 October 2018
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction
and background:
[1]
The applicant, (Mr Mavhungu), was employed by the third respondent
(SAA) as its Airways Customer Services Agent with effect
from
September 2001. He was dismissed on 17 May 2013 on
allegations of misconduct. Having referred a dispute to
the
second respondent, the Commission for Conciliation Mediation and
Arbitration (CCMA), the matter came before the first
respondent
(Commissioner) for arbitration, who had found that the dismissal of
Mavhungu was substantively and procedurally fair.
With this
application, Mavhungu seeks an order reviewing and setting aside the
Commissioner’s award dated 10 November 2013.
The
application is opposed by SAA.
[2]
The allegations levelled against Mavhungu leading to his dismissal
were;
1.
‘
Displaying
aggressive and disrespectful behaviour.
In
that on 14 November 2012 whilst representing a fellow employee
Lebohang Makwanyane (Makwanyane) in a disciplinary hearing, the
applicant insulted and undermined the Presiding Officer, Willem
Grobler (Mr Grobler) with threats that violence of a similar nature
to that which took place in Marikana in August 2012 could occur.
2.
Assault
In
that on 14 November 2012 whilst representing Lebohang in a
disciplinary hearing, the Applicant assaulted the Chairperson with
a
disciplinary code and procedure booklet on the face.’
[3]
At the internal disciplinary hearing, Mavhungu was found guilty of
the above charges. He was not found guilty on a third charge
related
to absenteeism. It was further common cause that Mavhungu was
formerly a shop steward of SATAWU. He had left SATAWU and
joined the
rival union National Transport Movement (NTM), and was also its shop
steward. NTM and SAA did not have a formal recognition
agreement.
The
evidence at arbitration proceedings:
[4]
At the arbitration proceedings, SAA had led the evidence of its
Project Manager, Mr Willem Grobler (Grobler), who was appointed
as
the chairperson of a disciplinary enquiry convened on
14 November 2012 in respect of another employee, Ms
Lebogang
Makwanyane. The incident leading to Mavhungu’s
dismissal was triggered when the latter attended the said hearing and
introduced
himself as a NTM representative.
[5]
Grobler advised Mavhungu that he was not permitted to represent
Makwanyane in his capacity as NTM representative, as that union
was
not recognised by SAA, but that he could represent her in his
capacity as a fellow employee. According to Grobler, Mavhungu
did not
a receive his ruling well, had an outburst, lost his temper and said
to him; ‘
white boy…you are less than nothing…
who do you think you are… you are less than nothing’.
Mavhungu then threw a booklet at Grobler’s face area and
the latter had managed to shield himself. Mavhungu continued to
mention
the name of Marikana, saying to him; “
What would it
take for us to get recognised, would another 35 people need to get
killed in order for us to get recognised?”
At that stage,
Grobler in view of the utterances made and out of concern for the
safety of people gathered at the hearing, wanted
to have the
proceedings adjourned. Makwanyane had however requested that the
hearing should continue with Mavhungu representing
him in his
capacity as a fellow employee. Mavhungu having left the proceedings
had at some stage returned and the hearing had proceeded.
Grobler
described the incident, especially the booklet throwing as demeaning
and insulting. Even though Grobler expected Mavhungu
to apologise, no
apology was forthcoming.
[6]
Under cross-examination, Grobler testified that Mavhungu could not
represent Makwanyane as an NTM shop steward as the union
was not
recognised, and further since SAA’s HR had issued a directive
that non-recognised unions could not represent employees
in
disciplinary hearings. Grobler rejected the version put to him that
the booklet was merely tossed towards him and that it did
not land on
his face or body. He testified that his character was demeaned as a
result of the incident, and that due to the incitement
of violence
and the throwing of the booklet, a dismissal was a fair sanction. In
regards to Mavhungu’s reference to ‘Marikana’,
Grobler testified that the incident involved a national tragedy and
it was unprofessional and insensitive to refer to that tragedy,
coupled with the behaviour exhibited by Mavhungu. He denied when it
was put to him that he had misconstrued the reference to Marikana,
and reiterated that Mavhungu had called him a ‘white boy’
[7]
Another witness, Ms Fatima Choonara (incorrectly referred to as
Chinara in the transcribed record), had attended the said
disciplinary
hearing as an observer. She testified that after Grobler
had refused Mavhungu permission to represent Makwanyane as an NTM
representative,
it came to a stage where things got out of hand with
voices being raised. She testified that Mavhungu, who was upset and
heated
up made some comments about Marikana as a result of his union
not being recognised. Mavhungu further made insulting comments
towards
Grobler, telling him that he was a new comer, did not know
what he was doing and was just a white boy. Mavhungu according to
Choonara
also banged on the table a few times whilst standing, and
threw a booklet at Grobler, which hit the latter between the nose and
the shoulder area as he tried to shield himself from its impact.
Grobler had asked Mavhungu to leave the proceedings as his
behaviour was uncalled for.
[8]
Under cross-examination, Choonara denied when it was put to her that
the booklet was simply tossed towards Grobler on the table,
and
insisted that it was flung unto Grobler’s body, and had landed
on the floor. She reiterated that Mavhungu had made the
insulting
comments towards Grobler.
[9]
Mavhungu’s testimony was that prior to the hearing before
Grobler, he had represented other employees in his capacity
as an NTM
representative. When Grobler refused to let him represent Makwanyane,
he merely sought to convince him to give
him an opportunity
to explain his reasons for seeking to be allowed as NTM
representative. Grobler however refused to give
him an opportunity.
[10]
He (Mavhungu) got angry and again tried to refer Grobler to some law
books, further asking him to recuse himself. Grobler had
refused. He
then took the booklet that he had referred, swung and flipped it
towards Grobler for him to look at. He then advised
Grobler that he
was going to leave and it was at that stage that Grobler had informed
him that he was going to ask him to leave
in any event. He then left
the hearing room with Makwanyane and advised her that she should get
another person to represent her.
He later on got a phone call
from Makwanyane who informed him that Grobler had agreed that he
should proceed with the hearing.
[11]
Mavhungu went back to the hearing and was advised by Grobler that he
could represent Makwanyane as a colleague. He nonetheless
continued
to point out to Grobler that what was happening was unfair, and
moreso immediately after the events at Marikana, from
which lessons
should have been learnt. He informed Grobler he should not be
involved in the rivalry between unions. Mavhungu
testified that he
could recall that he had mentioned Marikana twice, and it was at that
point that Grobler got angry and again
said the hearing could not
continue. Mavhungu had again excused himself, and asked another
person, Reggie, to represent Makwanyane.
He denied that he had at any
stage referred to Grobler as a ‘white boy’. He denied
that he ever stood up as he addressed
Grobler.
[12]
Under cross-examination, Mavhungu confirmed that he did not have a
problem in representing Makwanyane as a colleague at the
hearing. He
had introduced himself to Grobler as NTM representative as to
distinguish himself from representatives from SATAWU.
He testified
that Choorana lied in her testimony as she was a team leader and
reported to the manager who had initiated the disciplinary
proceedings against him. He contended that she would say whatever her
mangers want her to say.
The
award:
[13]
The Commissioner was not persuaded by Mavhungu’s version and
concluded that the evidence of Grobler as verified by Choonara
was
acceptable. The Commissioner commented that Mavhungu’s case was
not about discrimination as an NTM official, and it was
accepted that
the evidence indicated that he was at the time of the incident,
significantly disruptive and disrespectful. In regards
to the
assault, the Commissioner accepted that Mavhungu had tossed the
booklet with an intention to either do harm to Grobler or
to
aggravate the situation, leading to the hearing being aborted. On the
evidence of Choonara, Mavhungu had also banged on the
table.
[14]
According to the Commissioner, the sanction of dismissal was
appropriate in that Mavhungu as a shop steward was not absolved
from
the fact that he remained an employee and had certain obligations and
duties, and that he had committed the misconduct
related to
disrespectful/aggressive behaviour.
The
grounds of review and evaluation:
[15]
Mavhungu contends that the Commissioner’s arbitration award is
reviewable, as she had committed gross irregularities
with regard to
the arbitration proceedings and/or exceeded her powers, and arrived
at unreasoned and unreasonable conclusions.
It was further submitted
that the Commissioner’s findings are not those a reasonable
decision maker could have arrived at
considering the facts of the
matter and the evidence presented. In this regard, it was further
submitted that;
a) Any reasonable Commissioner would
have found that in the circumstances of the case, the dismissal was
unfair;
b) There was a detrimental failure to
consider material facts, with the result that the award was
susceptible to review, and such
failure resulted in not having a fair
trial.
[16]
Mavhungu essentially takes issue with the approach of the
Commissioner in arriving at her decision, and contends that despite
being aware of what was expected of her and the range of factors she
had to take into account in assessing whether the dismissal
was fair
or not, she had failed to do what was required of her by failing to
state what informed her decision and conclusions;
misconstruing the
issues before her; disregarding the contradictory evidence of
Grobler, which was also in conflict with that of
Choonara; failing to
consider that Grobler had conceded under cross-examination that he
was never threatened with harm; failing
to consider the materiality
of contradictions in the arriving at her conclusions, failing to
deliberate on her findings, and failing
to state what evidence
indicated that Mavhungu was disruptive and disrespectful.
[17]
The test on review is that of a
reasonable decision maker, and the enquiry is whether the decision
reached by the commissioner is
one that a reasonable decision maker
could not reach
[1]
.
A glance at the Commissioner’s analysis clearly indicates that
it is not clear as to how she had arrived at her conclusions.
[18]
In accordance with Commissioner’s Guidelines, it is required of
Commissioners to issue written awards with brief reasons.
This
involves an assessment of the facts based on various considerations
including the credibility and probability of the versions
presented,
and where appropriate, an assessment of the applicable rules. What
this in a nutshell implies is that from the award,
the reasoning of
the Commissioner should be apparent and the conclusions reached ought
to be justified. ‘Brief reasons’
does not imply that
Commissioners are excused from outlining the reasons for their
decisions.
[19]
In
instances where it is not apparent from the arbitration award as to
how the Commissioner had arrived at a decision, does this
however
make that award reviewable? Guidance in this regard is to be found in
Head of Department of
Education v Mofokeng & Others
[2]
,
where it was held that;
“
[32] Mere errors of fact or law
may not be enough to vitiate the award. Something more is required.
To repeat: flaws in the reasoning
of the arbitrator, evidenced in the
failure to apply the mind, reliance on irrelevant considerations or
the ignoring of material
factors etc must be assessed with the
purpose of establishing whether the arbitrator has undertaken the
wrong enquiry, undertaken
the enquiry in the wrong manner or arrived
at an unreasonable result. Lapses in lawfulness, latent or patent
irregularities and
instances of dialectical unreasonableness should
be of such an order (singularly or cumulatively) as to result in a
misconceived
enquiry or a decision which no reasonable decision maker
could reach on all the material that was before him or her.
[33] Irregularities or errors in
relation to the facts or issues, therefore, may or may not produce an
unreasonable outcome or provide
a compelling indication that the
arbitrator misconceived the enquiry. In the final analysis, it
will depend on the materiality
of the error or irregularity and its
relation to the result. Whether the irregularity or error is material
must be assessed and
determined with reference to the distorting
effect it may or may not have had upon the arbitrator's conception of
the enquiry,
the delimitation of the issues to be determined and the
ultimate outcome. If but for an error or irregularity a different
outcome
would have resulted, it will ex hypothesi be material to the
determination of the dispute. A material error of this order would
point to at least a prima facie unreasonable result. The reviewing
judge must then have regard to the general nature of the decision
in
issue; the range of relevant factors informing the decision; the
nature of the competing interests impacted upon by the decision;
and
then ask whether a reasonable equilibrium has been struck in
accordance with the objects of the LRA. Provided the right question
was asked and answered by the arbitrator, a wrong answer will not
necessarily be unreasonable. By the same token, an irregularity
or
error material to the determination of the dispute may constitute a
misconception of the nature of the enquiry so as to lead
to no fair
trial of the issues, with the result that the award may be set aside
on that ground alone. The arbitrator however must
be shown to have
diverted from the correct path in the conduct of the arbitration and
as a result failed to address the question
raised for
determination
.
[3]
[20]
Thus, in determining whether
the award is reviewable, the question to be asked is whether absent
the defect, a reasonable decision-maker
could have come to the
conclusion reached in the award on the same material
[4]
.
[21]
The starting point in this matter is that the two charges of
misconduct which led to the dismissal if proven, are interrelated
and
indeed serious, necessitating a severe sanction. As it was correctly
pointed out on behalf of SAA, there are limits to the
language
employees are permitted to use in the workplace in order to express
their views, and that swearing and/or invective language
is generally
considered misconduct, which may result in dismissal even for the
first offence. This is particularly so where the
use of the abusive
language impairs the dignity and reasonable sensibility of those
against whom the abuse is directed, which had
the effect of impacting
on the employment relationship.
[22]
In this case, Mavhungu had denied having uttered the comments about
Grobler in the manner attributed to him. The Commissioner
accepted
the version of Grobler and Choonara on the grounds that the evidence
presented at the time indicated that Mavhungu was
disruptive and
disrespectful during a ‘formal meeting’. As correctly
pointed out on behalf of Mavhungu, the Commissioner
hardly made any
attempt to indicate how and/or on what basis Mavhungu’s denials
were not persuasive. No attempt was made
to deal with the substance
of the allegation in relation to the evidence led at the proceedings,
nor was it indicated as to the
reason the one version was preferred
over the other.
[23]
Having had regard to the record of the arbitration proceedings, the
Commissioner’s arbitration award, the pleadings and
the
parties’ heads of argument, it is my view that in line with
what was said in
Mofokeng
as indicated above, the defects,
irregularities or errors in relation to the facts or issues pointed
out, are not sufficient to
have the arbitration award set aside. It
can hardly in my view, be said that such defects or irregularities
led to an unreasonable
outcome or provided a compelling
indication that the Commissioner misconceived the nature of the
enquiry she was obliged to undertake,
or undertook that enquiry in an
incorrect manner. My conclusions in this regard are fortified by the
following;
23.1 On Mavhungu’s own version,
and without the benefit of the recording of the hearing before
Grobler, he was angry at having
been refused permission to represent
Makwanyane in his capacity as NTM representative. Even though he
alleged to have respected
Grobler’s ruling, he had persisted
in attempting to influence Grobler to change his mind, and in
the process had on
no less than two occasions made reference to
Marikana.
23.2 Choonara had testified that at
the time, things were getting out of hand with voices being raised,
and that Mavhungu, who was
then standing, had banged on the table as
he argued with Grobler. Mavhungu had however testified that he was
always calm and denied
having raised his voice. His version that he
was the only one that was calm and had not raised is voice, when his
earlier version
was that he was angered by Grobler’s decision
is clearly improbable, particularly since on his own version, he was
angered
by Grobler’s ruling, who according to him, appeared to
refuse to listen to anything he wanted to say.
23.3 Mavhungu had denied having called
Grobler a white boy amongst other things he had said, and also
throwing the booklet on Grobler’s
body. I have already
indicated that the two charges leading to the dismissal are
intrinsically linked as they emanated from one
chain of events.
Clearly Mavhungu’s concessions were selective in an attempt to
suit his case.
23.4 Grobler and Choonara had
persistently testified that indeed Mavhungu uttered the verbal abuse
and had thrown the booklet at
Grobler’s body. Mavhungu’s
denials were clearly bare. His explanation that Choonara confirmed
Grobler’s version
because she reported to the manager who had
initiated the disciplinary proceedings and was therefore under
instructions to say
whatever the manger told her to say is an issue
that was not put to her under cross-examination, but which on its own
lacked merit.
It was never put to Grobler that he had made the
allegations for nefarious motives, and any suggestion by Mavhungu
that action
might have been taken against him in the light of the
rivalry between SATAWU and NTM fell flat when it was pointed to him
that
the Commissioner would not have jurisdiction to deal with the
matter if it was his case that he was victimised.
23.5 In the circumstances, there was
no evidence placed before the Commissioner to persuade her why the
allegations were trumped
up. Given the fact that Mavhungu had
conceded that he was angry at being denied the right to represent
Makwanyane in the hearing
as an NTM representative, there was no
reason for the Commissioner not to conclude that indeed Mavhungu was
disruptive and disrespectful,
in the sense that he had called Grobler
a white boy, made reference to Marikana, and threw the booklet at
Grobler’s body.
It is irrelevant whether the booklet when
thrown at Grobler landed between his nose and should as testified by
Choonara, or hit
Grobler in the face area as he had testified. The
fact of the matter is that the booklet was indeed thrown at Grobler’s
body,
as opposed to Mavhungu’s version that he had simply flung
the booklet towards him. For Mavhungu to have called Grobler a ‘white
boy’ was demeaning and insulting in the extreme, and Mavhungu’s
bare denials in that regard are outweighed by the consistent
and
corroborating versions of Grobler and Choonara.
23.6 The alleged contradictions
between Grobler’s and Choonara’s versions as correctly
pointed out on behalf of SAA
do not reveal incompatibility of events
as narrated by them. These contradictions do not go to the substance
of the issues to be
determined, in that the two witnesses were
consistent in their versions that Mavhungu was disruptive and
disrespectful, had
uttered the abuse attributed to him, had (even on
his own version) made references to Marikana, and further that he had
thrown
the booklet at Grobler’s body. To this end, it is my
view that based on a totality of the facts before the Commissioner,
there was no other conclusion to be reached other than that Mavhungu
had committed the misconduct in question.
[24]
The allegations in regard to procedural unfairness before the
Commissioner equally lacked merit. Mavhungu’s case was
that
there was a tape recording of the proceedings before Grobler, which
would have exonerated him from the allegations made against
him.
SAA’s contention was that copies of the tape recordings went
missing after the person who was in possession of them,
was involved
in a vehicle hijacking incident.
[25]
It is my view that it was not the function of the Commissioner to
enquire where the tape recordings were and why they were
not
produced. There was nothing that prevented Mavhungu, who was ably
represented at the arbitration proceedings, to either seek
a
discovery of those tapes and/or to subpoena the individual involved,
to explain the circumstances under which the copies went
missing.
Furthermore, as the Commissioner had pointed out, the issue was what
prejudice did Mavhungu suffer as a result of the
unavailability of
the tape recording. In the absence of the recordings, the
Commissioner could only deal with what was before her
and come to an
informed decision. As also correctly pointed out, the issue of the
missing recordings cannot on its own lead to
a conclusion of
procedural unfairness, moreso since it has nothing to do with whether
the disciplinary proceedings were conducted
fairly or not.
[26]
A further factor in this case was that Makwanyane was in the hearing
before Grobler, and no explanation was proffered as to
the reason she
was not called as a witness at the arbitration proceedings, to
confirm Mavhungu’s version of events. It cannot
therefore be
said that the Commissioner simply denied Mavhungu an opportunity to
present evidence or denied Mavhungu a fair trial
of the issues.
[27]
What remains is whether the
sanction of dismissal was fair. It is trite that in considering the
appropriate sanction, regard must
be had to a variety of factors
pointed out in
Sidumo
[5]
.
Mavhungu takes issue with
the fact that the Commissioner in considering the appropriateness of
the sanction, merely took regard
of the submissions made on behalf of
the parties and the fact that he (Mavhungu) remained an employee
first before being a shop
steward, and that he had certain
obligations and duties.
[28]
It was common cause that Mavhungu had a clean disciplinary record,
with a service of about thirteen years at SAA. Ordinarily,
these
would be compelling factors to be taken into account when considering
whether the sanction of dismissal was fair. However,
these factors on
their own do not make a sanction of dismissal inappropriate, as the
issue remains whether the misconduct in question
was serious and the
impact it had on the employment relationship. I have already
indicated that the offences in question if proven,
are indeed
serious, warranting a dismissal, even if Mavhungu was a first
offender.
[29]
The starting point as correctly pointed out by the Commissioner is
that a shop steward is an employee first, and there is a
fine line
between what a shop steward can do or say at the workplace, without a
conclusion necessarily being drawn that an individual
was disciplined
for carrying out his or her shop steward’s obligations and
duties towards union members. In this case however,
SAA and NTM at
the time did not have a recognition agreement, and thus for all
intents and purposes, Mavhungu was an ordinary employee
at the time
that he represented Makwanyane. His conduct in my view, of verbally
abusing, demeaning and belittling Grobler is inexcusable.
Grobler was
merely carrying out his duties as a chairperson of the enquiry, and
it was incumbent upon him to follow SAA’s
instructions that
only recognised union shop stewards or fellow employees could
represent other employees in disciplinary enquiries.
Mavhungu
therefore had no reason to vent out his frustrations at the lack of
recognition of NTM on Grobler, let alone in the abusive
manner he had
done.
[30]
The throwing of the booklet was not only a sign of disrespect of
Grobler’s authority in the hearing but also a challenge
to that
authority. Mavhungu’s reference to Marikana, in whatever
context he intended was indeed shameless in the extreme.
The Marikana
tragedy is well documented, and will forever remain an unforgettable
stain on our relatively new democracy. For it
to be used therefore,
for whatever purpose in making a point, is inexcusable.
[31]
Aligned to any consideration of the appropriateness of a sanction of
dismissal is whether an employee has atoned for his or
her conduct.
In my view this factor ought to be aligned to a further consideration
of whether progressive discipline ought to be
considered. In this
case, Grobler’s testimony was that when the disciplinary
enquiry resumed, and after he had allowed Mavhungu
to represent
Makwanyane as a fellow colleague, he had expected him to apologise.
This was however was not to be so, as Mavhungu
had persisted in
arguing with Grobler, with a view of amongst other things, to
convince him that the non-recognition of NTM was
unfair. Mavhungu’s
frustrations with NTM’s non-recognition clearly had nothing to
do with the disciplinary process,
and even if it had, that was
not the appropriate forum to raise the issue. In my view, the lack of
a show of contrition under the
circumstances, is indicative that a
less severe sanction would not have yielded any positive results. In
the end, the Commissioner’s
conclusions in regards to the
appropriateness of the sanction cannot be faulted.
[32]
In conclusion, there is no merit in the contention that the
Commissioner’s award is reviewable on any of the grounds
advanced on behalf of Mavhungu. The Commissioner was indeed alive to
the issues she was required to determine, and had in doing
so,
afforded the parties an opportunity of a fair trial of those issues.
Even if the reasoning of the Commissioner can be criticised,
her
decision in regard to the substantive and procedural fairness of the
dismissal, ultimately fell within a band of reasonableness.
In the
end, Mavhungu failed to make out a case why the arbitration award
should be set aside. I have further had regard to the
requirements of
law and fairness and hold the view that a cost order in this case is
not warranted.
[33]
Accordingly, the following order is made;
Order:
1. The application to review and set
aside the arbitration award issued by the first respondent under case
number GAEK4716-13 is
dismissed
2. There is no order as to costs.
____________________
E Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES
:
For
the Applicant: Adv. DZ Kela
Instructed
by: Ndumiso Voyi INC
For
the 3
rd
Respondent: F Malan of Edward Nathan Sonnenbergs
INC
[1]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and others
(2007) 28
ILJ 2405 (CC)
[2]
(2015) 36
ILJ
2802 (LAC) at 2812-3
[3]
Head of Department of
Education v Mofokeng & Others
(2015)
36
ILJ
2802 (LAC) at 2812-3
[4]
See also
Belloord 28 CC v
CCMA Johannesburg and Another
[2018] ZALCJHB 112 (15 March 2018) at paragraph [10]
[5]
Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097
(CC);
2008 (2) SA 24
(CC) ; (2007) 28 ILJ 2405
(CC)
[2007] ZACC 22
; ;
2008 (2) BCLR 158
(CC), where it was held that;
“
78.
In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or she
will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee’s
challenge to the
dismissal. There are other factors that will require consideration.
For example, the harm caused by the employee’s
conduct,
whether additional training and instruction may result in the
employee not repeating the misconduct, the effect of dismissal
on
the employee and his or her long-service record. This is not an
exhaustive list.
79. To sum up. In terms of the
LRA, a commissioner has to determine whether a dismissal is fair or
not. A commissioner is
not given the power to consider afresh what
he or she would do, but simply to decide whether what the employer
did was fair.
In arriving at a decision a commissioner is not
required to defer to the decision of the employer. What is required
is that he
or she must consider all relevant circumstances.”