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[2019] ZALCJHB 40
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UTATU SARWHU and Another v Moletsane NO and Others (JR82/2014) [2019] ZALCJHB 40 (28 February 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR 82/2014
In the matter between:
UTATU
SARWHU
First Applicant
E.S
BESENT
Second Applicant
And
RUSSEL MOLETSANE
N.
O
First Respondent
TRANSNET BARGAINING
COUNCIL
Second
Respondent
TRANSNET FREIGHT
RAIL
Third Respondent
Heard:
6 March 2018
Delivered:
28 February 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
The second applicant (Besent) seeks an order reviewing and setting
aside
the arbitration award issued by the first respondent
(Arbitrator) dated 6 November 2013. In the arbitration
award, the
Arbitrator had found that the dismissal of Besent on
account of allegations of misconduct was procedurally unfair but
substantively
fair. The third respondent (Transnet) was ordered to
pay to Besent, compensation in an amount of R47 446-53 being the
equivalent
of three months’ remuneration. Transnet has opposed
this application.
The first applicant (UTATU
SARWHU) has since withdrawn from these proceedings.
Condonation:
[2]
Besent also seeks condonation for the late filing of the review
application
and the supplementary affidavit. The award having been
issued on 6 November 2013, the review application was filed
on
22 January 2014, making it just over four weeks out of
time. The delay in my view is not excessive, and the explanation
proffered in that regard is more than adequate. On the whole, the
considerations of the interests of justice dictate that condonation
in respect of the late filing of the review and subsequent
supplementary affidavit be granted.
Background:
[3]
Besent commenced his employment with Transnet in June 2005. At
the
time of his dismissal on 31 May 2013, he was employed
as a Track Master by Transnet at its Infra Depot. The dismissal
followed upon a disciplinary enquiry held in Besent’s absence
into the following allegations:
i.
“Gross insubordination: In that you in your capacity as a Track
Master refused
a lawful and reasonable instruction on the 04
th
April 2013 at approximately 13:15 when instructed to calm down and
stop swearing at security guards.
ii.
Gross misconduct: That in your capacity as a Track Master contravened
Transnet Code
of Good Ethics when you behaved in an unbecoming
behaviour when you used vulgar language against Transnet Contracted
security guards
which is also contravention of Transnet Culture
Charter (Treating each other with dignity and respect) on the 04
th
April 2013 at 13:15
iii.
Gross misconduct: That you in your capacity as Transnet Freight Rail
employee you
brought the company’s name into disrepute when you
used vulgar language and attempting to fight with Transnet Contracted
security guards on the 04
th
April 2013 at approximately
13:15
iv.
Gross misconduct: That you in your capacity as a Transnet Freight
Rail employee threatened
the Transnet security guards with murder on
the 04
th
April 2013”.
The
arbitration proceedings:
[4]
After his dismissal, Besent referred a dispute to the Bargaining
Council
and when attempts at conciliation failed, the matter came
before the Arbitrator for arbitration.
[5]
At the arbitration proceedings, Besent denied the allegations against
him, and further contended that his dismissal was unfair as Transnet
had applied discipline inconsistently in that it had in the
past,
treated similar transgressions by other employees lightly; and
further that the sanction of dismissal was inappropriate in
the light
of his clean disciplinary record.
[6]
Seven witnesses were called to testify on behalf of Transnet at the
arbitration
proceedings. In summary, the evidence of Ms. Jwalane
Bodibe, a security officer employed by a private security company
providing
guarding duties at the depot where the incident in question
took place on 4 April 2013 was as follows;
6.1
She was on duty with two other officers when Besent arrived at the
exit point
in his vehicle. He had a passenger in the vehicle. Besent
was then requested to open the boot of his vehicle for normal
security
checks. Besent had refused to do as instructed and had
without reason started to verbally abuse her and other officers in
Afrikaans
and Setswana, calling her ‘
fat woman’
;
‘
ma se p...s’
; and ‘
vet p...s’;.
He
further referred to her as ‘
securities that don’t
wash’.
6.2
At some point, Besent got out of his vehicle as he continued
swearing, pointed
a finger at Bodibe and threatened to hit her. When
Bodibe’s colleague, Mr. Seetelo tried to intervene, Besent
turned his
attention to him and also verbally abused him, further
threatening to assault him and calling other people from ‘outside’
to come and assault him.
6.3
Besent at some point left his vehicle and went back inside the
premises to call
his manager (Mr Lesiba Ramahladi). When he and
Ramahladi came back, Besent continued with his verbal abuse towards
the security
officers in the same crude terms despite Ramahladi’s
attempts to calm him down. Ramahladi according to Bodibe gave up in
his attempts to calm Besent down and left. Besent ultimately opened
the boot of his vehicle whilst he continued swearing, and after
a
search of his boot the security officers opened the gate for him to
leave. As he left, he continued swearing at them.
6.4
Upon Besent’s return to the premises, the security officers
refused to
let him through the gates, as he had not yet calmed down.
The security officers called their control room, and ultimately the
Transnet
security officers were called to the scene. When the
Transnet Security officers arrived, Besent had continued with his
outbursts
and vulgar language towards security officials, further
telling them that he was not going to kill them himself, but would
sent
people to do so. At that point, security officials from Transnet
(Messrs Phofi and Potgieter) attempted to calm him down but he
had
refused to do so.
6.5
Bodibe had testified that as a result of threats made by Besent, she
had reported
the matter to the police, and was still scared of him.
She testified that even though the incident took place on
4 April 2013,
she only reported it to the police on
12 August 2013, a day before the arbitration proceedings.
She took long to report
the matter to the police as she wanted to
wait for the outcome of the arbitration as she did not know whether
Besent would be reinstated
or not. She had testified that she felt
more threatened when Besent repeated his threats in front of
officials from Transnet Security.
[7]
Ramahladi’s evidence was essentially that;
7.1
Besent reported to him. He confirmed that on the day of the incident,
Besent
came to him to complain that he had problems with security
officials as they had asked him to open the boot of his vehicle,
whilst
they had let other vehicles through without searching them.
7.2
He confirmed that he and Besent went back to the security officers
and upon
their arrival, Besent had uttered profanities attributed to
him by Bodibe, including calling her ‘
vuil p…s’
.
He had also threatened the security officers.
7.3
He had testified that his attempts at calming Besent down were
unsuccessful,
and had told Besent that his behaviour was unacceptable
in the workplace, and that he should stop swearing.
7.4
He also pointed out both Besent and the security officers were
swearing at each
other at some stage. When he could not calm Besent
down, he had then left the scene as he could not handle the situation
in the
light of the threatening words uttered by Besent, including
pointing of fingers and making threats that people from outside would
be used to kill security officers. Ramahladi had equally felt
threatened and disrespected by what Besent had said. He had then
sent
one of his managers to go and investigate the matter. Once a report
was compiled, charges of misconduct were then formulated
against
Besent.
7.5
Ramahladi further testified in regards to Transnet Culture Charter
which applied
to all employees and persons doing business with
Transnet including the contracted security, and which further
provides for employees
to treat each other with respect. He testified
on the impact of Besent’s conduct on Transnet’s
reputation since it
dealt with subcontractors. He further testified
that a trust relationship with Besent was broken due to his conduct
as he had disrespected
him and was not willing to conduct himself in
an acceptable manner.
7.6
In regards to the specific charges, Ramahlabi had testified that the
refusal
to obey a reasonable instruction came about when Besent
refused to stop swearing at the security officers and refused to
behave
in an acceptable manner; that he was fighting and threatening
to kill the security officer and had called them names, which was
a
dismissible offence. Besent had further violated safety and security
rules as he had refused to have his vehicle checked, and
had brought
the company’s name into disrepute.
7.7
Under cross-examination, Ramahladi testified that he did not know who
had started
with the swearing. He however stated that Besent swore at
the security officers in English and Afrikaans, and that they had
also
responded in kind.
[8]
Ms Rebecca Matshoele, a security officer who was also manning the
main
exit/entrance to the premises confirmed the incident.
8.1
She added that when Besent refused to open the boot of his vehicle,
he had also
in the course of insulting them, told them that they ‘did
not wash themselves’ (were stinking), and had called Bodibe
names including ‘
vet vark’.
8.2
Matshoele confirmed that at some point Besent had opened the boot of
his vehicle
as requested and was allowed to exit the premised. When
he came back to the premises, the security officers had decided to
call
Transnet officials to deal with him, as he had continued with
his verbal abuse and threats. She denied that the security officers
swore back at Besent.
[9]
Mr Seetelo, another security officer confirmed the evidence of Bodibe
and Matshoele in regards Besent’s conduct and response when he
was asked to open the boot of his vehicle. He confirmed that
Besent
had also pointed a finger at Bodibe, and had also threatened him
(telling them that he will meet them in the township) before
opening
the boot of his vehicle. He also confirmed that there was another
unidentified person in the vehicle who had also attempted
to calm
Besent down without success, and who had then left the scene.
[10]
Mr Besent in his evidence essentially denied having insulted or
verbally abused the security
officers. He testified that when he
approached the exit point, he was asked to open the boot of his
vehicle by Bodibe, who had
without reason, told her colleagues in
Setswana that ‘
this thing does not want to open the boot’.
He became angry at being insulted by Bodibe and had reprimanded
her not to talk to him in that manner. He had then turned to his
passenger, Mr Louw and told him that Bodibe, whom he referred to as
‘
dik cherrie’
had insulted him. When Seetelo
intervened, he (Besent) told him that he would hit (
moer
) him
too. He denied having insulted either of the security officers in the
manner described by them. He further denied having threatened
them or
telling them that they did not wash.
[11]
Mr Louw, who was with Besent at the time of the incident testified
that it was Bodibe who
had provoked Besent by saying that ‘
this
thing does not want to open the boot’
. When Besent
reprimanded Bodibe not to speak to him in that manner Seetelo had
intervened and it was at that time that Besent had
also said that he
would hit him too, but outside of the workplace. He denied that
Besent insulted or threatened the security officers.
The
arbitration award:
[12]
In his award, the Arbitrator concluded that Besent was correctly
found guilty on the first
charge of refusing to obey a reasonable
instruction when told to calm down by his manager. In respect of the
second charge, the
Arbitrator concluded that Besent had conceded that
he had uttered the words ‘
moer’; ‘securities
that did not wash’;
and ‘
dik cherrie’
.
The Arbitrator however concluded that there was no evidence to
support Transnet’s witnesses’ contentions that Besent
had
verbally abused the security officers in other crude terms attributed
to him, on the basis that not all of them could confirm
that those
terms were uttered by him. In any event, the Arbitrator concluded
that Besent was guilty of the charge of verbally abusing
the security
officers.
[13]
In respect of the other charges, the Arbitrator found that Besent had
attempted to fight
with the security officers in the light of the
language used, and had also as a result of his conduct, brought the
name of Transnet
into disrepute. In respect of the last allegations
pertaining to threats made to the security officers, the Arbitrator
concluded
that Besent was not guilty on that charge as he had simply
told the security officers that he would get them in the township,
which
did not necessarily equate to a threat to kill them.
[14]
In regards to the appropriateness of the sanction of dismissal, the
Arbitrator dismissed
Besent’s claims of inconsistent
application of discipline, and took into account Ramahladi’s
testimony that as Besent’s
manager he could no longer trust him
as he did not respect him. The Arbitrator concluded further that
Besent had not shown any
remorse, and therefore the sanction of
dismissal was appropriate.
The
grounds of review and evaluation:
[15]
Central to
a determination of a review of an arbitration award is whether the
decision of the Arbitrator to uphold the dismissal
in this case is
one that is reasonable in relation to the facts proven before him.
Besent’s grounds of review are that the
Arbitrator committed
certain gross irregularities. It is trite that this court will
interfere with an arbitration award if the
arbitrator misconceived
the nature of the enquiry or committed a reviewable irregularity
which had the consequence of an unreasonable
result. In the end, the
primary consideration is whether the decision sought to be reviewed,
falls outside of a band of decisions
to which a reasonable
decision-maker could come on the same material
[1]
.
[16]
In regards to the first charge, Besent contends that the Arbitrator
erred in finding that
he had refused to obey a reasonable and lawful
instruction, as no instruction was issued to him as opposed to a
request to calm
down. He contends that the request was unheeded by
both him and the security officers, and even if it could be said that
he had
failed to heed the instruction, that offence did not merit a
sanction of dismissal. It was further argued on his behalf that,
since
his conduct was in the heat of the moment, it could not be
regarded as serious or deliberate.
[17]
As I understood the evidence from the record, Besent upon having
refused to open the boot
of his vehicle had then left the scene and
approached Ramahladi to complain. Upon coming back to the scene
accompanied by Ramahladi,
Besent had continued from where he left off
earlier by swearing at the security officers and threatening them.
Ramahladi’s
version that he told Besent to calm down and to
stop swearing at the security officers was not seriously challenged
other than
being met with Besent’s denials. Ramahladi had left
the scene as Besent had refused to calm down and continued with his
verbal
abuse and threats, which had made him (Ramahladi) feel
disrespected and equally threatened.
[18]
The gross nature of Besent’s conduct (insubordination) must be
viewed within the
context of the fact that Ramahladi was his direct
manager. Despite calling upon Ramahladi to intervene, he (Besent) had
nonetheless
refused to listen to him to calm down. It is irrelevant
in my view whether Besent considered Besent’s instructions to
calm
down as a mere request rather than an instruction. The fact of
the matter remains that Besent had called upon Ramahladi to resolve
a
problem which in any event should not have escalated to where it was,
had he simply complied with the security officers’
request to
open the boot of his vehicle for it to be searched like that of any
other person entering or leaving Transnet’s
premises. Ramahladi
had testified that he had on several occasions told Besent to calm
down and to desist from his conduct, and
the latter had refused,
resulting in Ramahladi giving up and calling other people to
investigate the matter. It cannot therefore
be correct that Besent’s
conduct of disobeying Ramahladi was not serious, persistent, or
deliberate. There is further no
merit in the contention that Besent’s
conduct was on a spur of the moment. On the contrary, it was
relentless.
[19]
In regards to the second and third charges, Besent’s contention
was that even though
these related to the use of vulgar language
during his altercation with the security officers, Transnet had
nonetheless listed
them separately and thus split the charges against
him with the aim of bolstering its case. The second charge related to
the contravention
of the code of good ethics, whilst the third
related to bringing the name of Transnet into disrepute.
[20]
Prima facie
, there might appear to be a splitting of charges,
but this is however not so. In circumstances such as in this case,
where a single
incident had different factual components that
comprise different offenses with distinguishable consequences, there
would be no
merit in any contention that a formulation of different
charges from that single incident results in a splitting of charges.
[21]
Bodibe, Ramahladi, Seetelo, Matshoele had all
confirmed that Besent had verbally abused the security officers, and
in particular,
Bodibe in the most vile, uncivilised and dehumanising
manner. The
single incident or altercation (as Besent
preferred to refer to it) that led to the various charges and
ultimate dismissal, involved
multiple acts on his part. In fact, on
the facts, there were four interrelated incidents in that Besent went
on his tirade when
initially asked to open the boot of his vehicle.
He had refused and went to fetch Ramahladi and continued with his
verbal abuse
when he came back. The third occasion was when he came
back to the premises and still continued with his unacceptable
conduct.
The fourth occasion was when the Transnet security officers
were called and he had continued with his tirade.
[22]
These various acts and resultant consequences, whether individually
or collectively in
any event were serious. Any justification on the
part of Besent that he was provoked was clearly contrived, as the
record does
not in any event demonstrate that such a defence was put
to any of Transnet’s witnesses.
[23]
By the use of vulgar language against the security officers
(contractors), Besent clearly
transgressed Transnet’s Culture
Charter, which enjoined employees to treat each other with respect.
That code extended to
contractors, and it followed that his conduct
in relation to the security officers brought the name of Transnet
into disrepute.
There is therefore no merit in the contention that
the charges were split, as the conduct of using vulgar language and
attempting
to fight with the security officers had the consequences
of both contravening the Charter, and also bringing the name of
Transnet
into disrepute.
[24]
Besent further complained that Transnet had applied discipline
inconsistently in that at
the time that Ramahladi had intervened, he
had instructed both him and the security officers to calm down and
not to swear, and
yet only him was found guilty of gross
insubordination, whilst the security officers were not disciplined
despite being also bound
by the Charter. In this regard, it was
submitted that the Arbitrator failed to consider this inconsistency,
thus committing a gross
irregularity.
[25]
A complaint of inconsistent application of discipline as against the
security officers
is misplaced, as the latter are mere contractors,
and were not employed by Transnet. At most, it was for Transnet to
treat any
form of misconduct on the part of contracted security
officers in terms of the contractual provisions governing its
relationship
with the contractor rather than by way of its own
disciplinary procedures.
[26]
Any
complaint of inconsistency in regards to the two other Transnet
employees Besent had compared himself with must be determined
in
regards to whether there is differentiation between the conduct of
those employees as against that of Besent, taking into account
their
personal circumstances, the severity of the misconduct in question,
and any other relevant material factor
[2]
.
Inconsistency is a factor to be taken into account in the
determination of the fairness of the dismissal, but is by no means
decisive of the outcome on the determination of reasonableness and
fairness of the decision to dismiss
[3]
.
[27]
Besent’s contention was that the other two employees, Robbie
Wier (who had used vulgar
language against a colleague) and Jan
Niemand (who was accused of assault and swearing, and also
threatening to kill Besent) had
committed the same misconduct of
equal severity, and were only issued with a final written warning and
two weeks’ suspension
respectively. The Arbitrator had indeed
accepted that there was some form of inconsistency, but that the
distinguishing features
were that Besent was also charged with
bringing the name of Transnet into disrepute, and that there were
third parties involved.
To that end, there were differences in the
nature of the charges.
[28]
It is my view that any challenge to the Arbitrator’s
conclusions in regards to whether
discipline was applied consistently
or not is without merit. Even on the Arbitrator’s liberal
analysis of the evidence and
findings that Besent had not verbally
abused and insulted the security officers (Bodibe in particular) in
the manner they and Ramahladi
had described, the limited concessions
he (Besent) had made that he had uttered words such as ‘
moer’
,
and ‘
dik cherrie’
, and further told the security
officers that they did not wash as accepted by the Arbitrator were
sufficient, for a finding to
be made that his misconduct was indeed
gross. To refer to a female employee irrespective of her position and
standing in the organisation
as a ‘
dik cherrie’
is
body shaming in the extreme, which by its nature undermines the
dignity, privacy and integrity of the individual concerned.
Such
conduct should be not only be frowned upon in the workplace, but must
also be met with harsh consequences.
[29]
The Arbitrator’s conclusions that the facts and circumstances
of Besent’s case
were distinguishable cannot be faulted. The
incident or misconduct in question was not only as between Besent and
Transnet. It
also involved a third party (contracted security
officers) towards whom Besent had behaved in the most appalling
manner. Notwithstanding
his manager’s appeal to him to desist
from his conduct he had persisted. There is nothing to suggest from
the record that
Besent had shown any contrition. On the contrary, he
either made bare denials or sought to justify his conduct with
contrived defences
of provocation. Even if there was such provocation
as Louw had attested, the later had equally left the scene after his
failed
attempts to calm Besent down failed, which can only attest to
the conclusion that he had behaved badly. In the circumstances, and
taking into account the overall effects of the conduct in question,
Besent’s clean disciplinary record became secondary,
and there
was no other conclusion to be reached other than that a sanction of
dismissal was appropriate.
[30]
Besent’s other complaint was that the amount of compensation in
the light of a finding
of procedural unfairness by the Arbitrator was
not sufficient. It was common cause that Besent was dismissed
following a disciplinary
hearing held in his absence. This was in
circumstances where on the date of the disciplinary hearing, Besent
had informed the initiator
(Ramahladi), that he was not feeling well,
and was granted permission to consult a medical practitioner.
Ramahladi had however
failed to disclose those facts to the
chairperson of the enquiry, resulting in the hearing being held in
his absence. The Arbitrator
had found that the dismissal of Besent
was procedurally unfair and had ordered payment of compensation in
the amount of three months.
[31]
An award of
compensation for procedural unfairness in terms of the provisions of
section194(1) of the LRA must be just and equitable
in all the
circumstances, but may not be more than the equivalent of 12 months’
remuneration calculated at the employee’s
rate of remuneration
on the date of dismissal. It is trite that the amount of compensation
for procedural unfairness is equivalent
to a
solatium
for the unfairness committed. Furthermore, an arbitrator has broad
discretion whether to grant any compensation, and if so, for
what
amount within the confines of section 194(1) of the LRA. The court
will not readily interfere in that discretion, especially
not on
review.
[4]
[32]
Besent merely alleges that the compensation amount is inadequate. In
the founding affidavit,
it was averred that the compensation amount
ought to be increased as it was not just and equitable. In the
supplementary affidavit,
nothing much is added to the averments made
in the founding affidavit. It is not known on what basis Besent
contends that he is
entitled to more compensation. There is nothing
in the pleadings that suggests that in exercising his discretion, in
regards to
the amount of compensation, the Arbitrator had acted
improperly. Accordingly, there is no basis for the court to interfere
with
the Arbitrator’s discretion in that regard.
[33]
In conclusion, I am satisfied that in the light of the material
presented before the Arbitrator,
his conclusions are unassailable, as
the decision arrived at falls within a band of reasonableness. I have
further had regards
to the requirements of law and fairness, and deem
it appropriate not to make any costs order.
[34]
Accordingly, the following order is made;
Order:
1. The
late filing of the review application and the supplementary affidavit
is condoned.
2. The
application to
review and set aside the
arbitration award issued by the first respondent dated
6 November 2013 is dismissed.
3.
There is no order as to costs.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Second Applicant:
A Davies of Johanette Rheeder Inc
For
the Third Respondent:
D. Norton of Mkhabela Huntley Adekeye Inc
[1]
Herholdt
v Nedbank Ltd
[2013] 11 BLLR 1074
(SCA)
[2]
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
(2010) 31 ILJ 452 (LC) at par [10]
[3]
Bidserv
Industrial Products (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
(2017) 38 ILJ 860 (LAC) at par [31]
[4]
See
Cf
Kemp t/a Centralmed v Rawlins (2009) 30 ILJ 2677 (LAC); Rawlins v
Kemp t/a Centralmed
(2010) 31 ILJ 2325 (SCA);
South
African Revenue Service v Commission for Conciliation, Mediation and
Arbitration and Others
[2017] 1 BLLR 8
(CC); (2017) 38 ILJ 97 (CC);
2017 (1) SA 549
(CC);
2017 (2) BCLR 241
(CC) at para [50], where it was held that;
“
To
compensate or not to compensate and if compensation is to be awarded
for what period, is a function of the judicious exercise
of the
discretionary power that an arbitrator or the court has in terms of
section 194(1) of the LRA. Zondo JP outlined
the applicable
factors in these terms:
“
There
are many factors that are relevant to the question whether the court
should or should not order the employer to pay compensation.
It
would be both impractical as well as undesirable to attempt an
exhaustive list of such factors. However, some
of the relevant
factors may be given. They are:
(a)…
(b)Whether
the unfairness of the dismissal is on substantive or procedural
grounds or both substantive and procedural grounds;
obviously it
counts more in favour of awarding compensation as against not
awarding compensation at all that the dismissal is
both
substantively and procedurally unfair than is the case if it is only
substantively unfair, or, even lesser, if it is only
procedurally
unfair.
(c)
In so far as the dismissal is procedurally unfair, the nature and
extent of the deviation from the procedural requirements;
the minor
the employer’s deviation from what was procedurally required,
the greater the chances are that the court or arbitrator
may
justifiably refuse to award compensation; obviously, the more
serious the employer’s deviation from what was procedurally
required, the stronger the case is for the awarding of compensation.
(d)
In so far as the reason for dismissal is misconduct, whether or not
the employee was guilty or innocent of the misconduct;
if he was
guilty, whether such misconduct was in the circumstances of the case
not sufficient to constitute a fair reason for
the dismissal.
(e)
The consequences to the parties if compensation is awarded and the
consequences to the parties if compensation is not awarded.
(f)
The need for the courts, generally speaking, to provide a remedy
where a wrong has been committed against a party to litigation
but
also the need to acknowledge that there are cases where no remedy
should be provided despite a wrong having been committed
even though
these should not be frequent.” (Citations omitted)
(g)
In so far as the employee may have done something wrong which gave
rise to his dismissal but which has been found not to have
been
sufficient to warrant dismissal, the impact of such conduct of the
employee upon the employer or its operations or business.
(h)
Any conduct by either party that promotes or undermines any of the
objects of the Act, for example, effective resolution of
disputes.”