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[2018] ZALCPE 30
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National Union of Mineworkers obo Mngqola v VSB Construction t/a Techni-Civils CC and Others (PR 218-16) [2018] ZALCPE 30; [2018] 7 BLLR 700 (LC) (6 April 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA HELD AT PORT ELIZABETH
Not
Reportable
Case
no
:
PR
218-16
In the matter between:
NUM obo
MNGQOLA
Applicant
and
VSB
CONSTRUCTION t/a TECHNI-CIVILS CC First
Respondent
BARGAINING
COUNCIL FOR THE
CIVIL
ENGINEERING INDUSTRY Second
Respondent
MS
M FOUCHE N.O.
Third
Respondent
Heard:
28 February 2018
Delivered:
06 April 2018
JUDGMENT
WHITCHER
J
[1]
The sole
issue
in this
review is
whether
,
in light of her
finding
that the dismissal of
the
applicant was substantively unfa
i
r
,
the third respondent
(
"
the
arbitrator
"
)
properly exercised her discretion to
deny the remedy
of
reinstatement,
which
the
applicant
sought.
[2]
The
reasons
provided
by
the
arbitrator for
denying
reinstatement were
that
the
applicant
was
not an honest witness during the
arbitration proceedings and the
trust
relationship between
he
and
employer
had
broken
down
irretrievably
.
[3]
Her decision not to
award reinstatement appears to be a
l
so
based on an un
a
rticul
a
ted
assump
t
ion
that the restora
ti
on
of the employment relationship might be strained because of Mr
D
u
Plessis
'
s
[1]
resentment
at
having
been
accused of racism
.
[4]
T
h
e
arb
i
trator
did not express
l
y
state whether
,
in
denying
reinstatement
,
she
was
relyi
n
g
on
subsections
193(2)(b) or
193(2)(c) of
the
Labour Relations
Act
,
199
5
.
Th
e
s
o
le
authori
t
y
on which she re
l
ied
was
Maepe
v
CCMA.
[2]
Section
193(2)(b)
(5)
I agree with counsel for the applicant that the arbitrator
could
not have invoked section 193(2)(b) on
finding that the applicant was a
"
dishonest"
witness
.
[6]
An inquiry into the
effect of the
employee
'
s
conduct on the
trust
relationship is
relevant
to whether dismissal was justified in the first
place
.
The employee
'
s
conduct at the
arbitration
had
no
bearing on the trust
relationship at the time of
the
dismissal.
[7]
Maepe
made it
clear
that
section 193(2)(b) applies to
the
state
of
the employment relationship at
the
time
of
the
dismissal. Zondo
JP
held
:
[14]
.
..
The
situation
envisaged
in
para
(b)
is
where
‘the
circumstances
surrounding
the
dismissal are such
that a
continued
employment
relationship
would
be
intolerable
’.
It
is
possib
l
e
that insofar
as the
giving of false evidence
under
oath may have occurred
i
n
the disciplinary
enquiry
before
the
dismissal
,
it
could
be
said
that
it
is
one
of
the circumstances surrounding the d
ism
issa
l,
particular
ly
where
i
t
was
one
of
the
fac
to
rs
that
were
taken
i
nto
acco
unt i
n
making the
decision
to dismiss
.
Howe
ve
r
,
it does
no
t
appear
to
me that the
sa
me
can
be
said
o
f
a
situa
tion
where
the
giving
of
false
evidence only
oc
c
urs
in the
arbitration
or at
the
trial
s
ub
sequ
ent
to
the
dismissal
...
[3]
[8]
The Labour Appeal
Court in
Glencore
Holdings and another
v
Sibeko and
others
[4]
also held that
behaviour
post-dismissal should not be taken
i
nto
account to infer a breakdown in the trust relation
justifying
departing from the
primary
remedy
of
reinstatement.
[9]
In any event, given her findings on why
dismissal was not an
inappropriate
sanction
,
the arbitrator could not possibly have
found that a continued employment
relationship
would
be
intolerable.
[10]
She
found
that
what essentially lay
at
the
heart of
the
controversy between
the parties was an allegation that the
applicant had falsely accused the respondent of
being racist and
he
was
therefore guilty of
gross dishonesty.
[11]
She
,
however
,
found that the applicant was
not
guilty
of
gross
dishonesty
because he was
"obviously
aggrieved and perhaps
for
good
reason
"
by having a young white male
appointed above him and given the benefit of a company vehicle
,
and
in
saying that the employer
was
racist he had merely expressed an
opinion. In essence, she found that there was a
reasonab
le
basis for the applicant to have
perceived the respondent
'
s
conduct as racist
and
for
him to have made the comment. She found that
the
employer had
"
overreacted
"
.
She found that
in
all these circumstances
,
dismissal
was
not
an inappropriate sanction. In simple
terms there was an understandable misunderstanding
between
the
parties.
[12]
Finally
,
none of the employer
'
s
witnesses actually testified
that
a
continued employment relationship would be
intolerable
.
Section
193(2)(c)
[13]
It is evident that
section 193(2)(c) of the LRA is of no application because there was
no suggestion on the evidence that the
'
functional
role
'
performed
by
the
applicant
within the employer
'
s
organisation
would
be adversely
affected by his
conduct
at the
arbitration
.
[5]
[14]
Maepe
is
distinguishable
from
this
case.
Maepe was a CCMA commissioner who was
found to have lied
under oath. The
LAC
found reinstatement
"
impractical"
because
,
as
a
commissioner
,
Maepe
would
himself
have
been required
to
administer the
oath
.
Order
[15]
The relief granted to the applicant by
the third
respondent
is
set aside and replaced with
an order of
reinstatement with effect from the date of his dismissal.
[16]
The
third
respondent is ordered to
pay
the
applicant's costs
.
B
Whitcher
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the applicant:
J
G
Grogan
,
instructed by
Wesley Pretorius &
Associates
For
the
first
respondent: Snyman
Attorn
e
ys
[1]
The MD of the third respondent
[2]
(2008) 29 IU 2189 (LAC)
[3]
Emphasis supplied
[4]
[2018] 1 BLLR 1
(LAC); (2018) 39 IU 138 (LAC)
[5]
Glencore Holdings and another v Sibeko and
others
held that section 193(2)(c) was
relevant to the core operationa l requirements of an employer and
that t hi s proposi t ion is
made clear in
Maepe.