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[2019] ZALCJHB 73
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Ndzimande and Others v Didben NO and Others (JR1404/14) [2019] ZALCJHB 73 (2 April 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR 1404/14
In the matter between:
JOSEPH NDZIMANDE &
2 OTHERS
Applicant
And
RAYMOND DIDBEN
N.O
First Respondent
COMMISSION
CONCILIATION MEDIATION
AND
ARBITRATION
Second Respondent
XTRATA COAL SOUTH
AFRICA (ATCOM NORTH) Third
Respondent
GLENCORE OPERATIONS
(PTY) LTD Fourth
Respondent
Heard:
6 June 2018
Delivered:
2 April 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction
and background:
[1]
The individual applicants (Messrs Ndzimande, Lubisi and Makama) were
dismissed
from the employ of the third respondent (Xstrata) on the
grounds that they brought the latter into disrepute after allegedly
having
made false statements against it
.
[2]
The statements were made
in an interview
which was aired on three SABC radio stations in the course of a march
embarked upon by about 600 employees of Xstrata
on 28 September 2012
to the Department of Labour to hand in a memorandum of grievances.
The individual applicants faced
a further charge related to their
alleged failure to observe Xstrata’s codes on grievance
resolution.
[3]
Aggrieved with their dismissal, the individual applicants referred an
alleged dismissal dispute to the Commission for Conciliation
Mediation and Arbitration (CCMA). The first respondent (the
Commissioner)
was appointed to arbitrate the dispute when attempts at
conciliation failed.
[4]
In an arbitration award dated 25 May 2013 and issued under
case
number MP 466-13, the Commissioner found that the dismissal of
the individual applicants was for a fair reason on the basis that
Xstrata had a standing rule pertaining to communications, which the
individual applicants ought to have been aware of.
[5]
With this application, the individual applicants seek an order
reviewing
and setting aside the Commissioner’s arbitration
award. They allege that the Commissioner committed several reviewable
gross
irregularities and exceeded his authority by assisting Xstrata
with its case in the arbitration proceedings.
[6]
Xstrata opposed the review application. The fourth respondent
(Glencore)
was joined to these proceedings on account of a transfer
of Xstrata’s business as a going concern to it.
Arbitration
proceedings and award:
[7]
The
incident having taken place on 28 September 2012, the
individual applicants were notified of the charges against them
on
26 October 2012
[1]
.
The purpose of the march to the Department of Labour was to hand in a
memorandum of grievances, in terms of which they wanted
matters
referred to the Department on March 2010 to be resolved.
They had further alleged in their memorandum that Xstrata
was
exploiting them.
[8]
It is alleged that in the course of the march, Ndzimande and his
colleagues
uttered false and “
defamatory
”
statements against Xstrata during an interview conducted and
broadcasted on the SABC radio stations,
viz
Ikwekwezi FM;
Ukhozi FM and Motsweding FM.
[9]
At the arbitration proceedings, Xstrata’s contentions before
the
Commissioner were that it had a code on communication which
precluded its employees from making statements to the media without
prior authorisation from the competent authority. It further
contended that Ndzimande and his colleagues had contravened the said
code, and further that Ndzimande was previously issued with a valid
final written warning for a similar offence, which was valid
as at
the time of the incident complained of.
[10]
Xstrata led the evidence of Ms Sarah Kekana (Kekana), which can be
summarised as follows:
10.1.
The code on communications provided that no employee was permitted to
communicate with the public media
without permission from the Chief
Operations Officer (COO). The code further provides that the
authority to communicate with the
media is vested on the COO and that
employees were to decline to comment on internal matters when
approach by the public media.
10.2.
In the interview conducted during the march, Lubisi was heard
alleging that Xstrata had undertaken to pay
them for overtime, but
had refused to do so. That statement was however false and
misleading. Initially in the internal disciplinary
hearing, the
individual applicants had denied having made the statements
attributed to them.
10.3.
Kekana further testified that the utterances attributed to Ndzimande
and his colleagues undermined the industrial
relations and aggravated
other employees and the public into believing that Xstrata was
exploiting its employees. This also may
have led to loss of investor
confidence.
10.4.
In the week preceding the march, and after Ndzimande had informed her
of it and told her that the media
would be present at that march,
Kekana had advised Ndzimande of the relevant human resource policies
and in particular, his appeal
processes which were still pending in
respect of a final written warning issued for similar misconduct.
10.5.
Under cross-examination, Kekana testified that the media statements
were false. She denied the allegations
that the employees were
not paid overtime, and explained that the employees were expected to
report for duty 30 minutes before
their shift commenced, which was
something referred to as the “
hot seat change
”.
10.6.
The employees were nevertheless remunerated for that period as it
appeared on Lubisi’s payslip. She
further contended that there
were instances when employees on the next shift did not report for
duty on time, necessitating those
on the out-going shift to continue
working. However, those employees that were inconvenienced by the
late arrival of the next shift
were remunerated for the additional
time spent on duty.
[11]
The evidence Ms Yvonne Mokoena (Mokoena), the Human Resource Manager
was essentially
that the allegations made by the individual
applicants as aired on the radio stations were false and/or
misleading on the basis
that:
11.1.
Xstrata utilised a shift-system for the management of its’
human resources. The employees were entitled
to four days off and
were remunerated according to a computer program known as “
Skycom
”
which determined the employees’ remuneration based on the data
captured and the movement of employees.
11.2.
Skycom was utilised to determine the times employees clocked in and
out, and took account of the continuous
operations circle to
determine the extent of the remuneration which was inclusive of the
overlap times and the
hot seat change
.
11.3.
Xstrata had received correspondence from the Department of Labour
which made enquiries about its remuneration
structure and how the
wages were adjusted. This had followed upon a complaint lodged by
Ndzimande
to the Minister of Labour, requesting an
investigation into allegations of fraud in the running of Xstrata’s
operations
. The Department also sought to conduct an
investigation at the premises.
11.4.
On 14 March 2012, a meeting was held with the
representatives from the Department of Labour. The
meeting dealt with
the provisions of the wage agreement, which was in place, and as well
as the medical aid benefits of the employees.
All the issues raised
by the employees were addressed and resolved.
[12]
Ndzimande’s evidence on behalf of the individual applicants is
summarised as follows:
12.1.
The employees had outstanding grievances that Xstrata had failed to
resolve over a long period. At some
point, the employees waived the
processes contemplated in terms of the Collective Agreement and
appointed him and others to represent
them in discussions with
Xstrata in respect of those outstanding grievances. At the time, they
were members of the recognised union,
NUM.
12.2.
The parallel structure secured meetings with the representative of
Xstrata and discussed the issues which
were previously referred to
the Department of Labour. It was then decided that the Department of
Labour should be engaged to mediate
the resolution of the grievances.
12.3.
Ndzimande was appointed by the employees to write the letter, which
was then addressed to the Minister of
Labour. The Department of
Labour agreed to meet the employees and a meeting was convened at the
trade union’s offices and
documents and payslips were handed
over to the Department of Labour for investigation.
12.4.
On 22 October 2010, the employees were invited to the
Department of Labour office where they were
given feedback on the
investigation. However, the communication and feedback from the
Department of Labour ceased from 22 October 2010.
In the
2011 wage negotiations, the employees observed that they were
experiencing the same difficulties as they did in 2009, which
prompted them to re-approach the Department of Labour and further
sought clarity on their previous complaints and filed a new complaint
with the Department of Labour.
12.5.
The complaints were still pending before the Department of Labour.
The lack of feedback from the Department
of Labour prompted the
employees on 28 September 2011, to march to its offices to
hand over a memorandum of grievances.
12.6.
Ndzimande also complained about problems surrounding health and
safety issues at Xstrata, and contended
that employees were compelled
to work in an unsafe environment, and were subjected to fumes and
chemicals. He also complained about
unsafe blasting practises and
unsafe transport vehicles allocated for the use of employees. He
contended that these matters were
reported to the competent authority
within Xstrata and the Department of Labour, but however remained
unresolved.
12.7.
He and his colleagues were not aware of the policy on communication
until when the issue was raised at the
disciplinary hearings. He
contended that the policy was not published for comment in terms of
the existing industrial practice.
He further stated that in making
the statements to the media, they were merely exercising their right
to freedom of speech.
12.8.
Under cross-examination, Ndzimande had conceded that making false
allegations against an employer might
be considered wrongful; that
the making of false statements may have the potential to bring an
employer into disrepute, and further
that such conduct could
constitute misconduct where an employee refused to comply with a
lawful instruction from the employer.
However, he denied that he was
aware of the policy on communication and that its breach could
attract a dismissal.
[13]
The Commissioner in his arbitration award came to the conclusion that
the dismissal of
the individual applicants was fair. He further made
a punitive costs order against the applicants. His reasons are
summarised as
follows:
13.1.
It was common cause between the parties that the central issue was
whether the comments broadcasted over
the SABC radio stations were
attributed to the individual applicants.
13.2.
The individual applicants had initially denied that the recorded
voices heard over a video clip obtained
from the SABC were theirs,
but had however belatedly conceded at the arbitration proceedings.
The Commissioner further held that
the justification proffered by
Ndzimande for the belated concession was disingenuous.
13.3.
The Commissioner further accepted the evidence of Xstrata’s
witnesses that it had a code in place
which governed misconduct in
respect of unauthorised and misleading communication.
13.4.
He further observed that the individual applicants failed to rebut
the evidence that there were policies
in place that governed the
conduct in question, and concluded that Ndzimande and his colleagues
ought to have been aware of the
code. This was further so since
evidence was led to demonstrate that the individual applicants were
subjected to an induction programs,
which covered the code on
misconduct relating to communication. The Commissioner rejected
Ndzimande’s allegations that the
induction did not cover all
aspects of the codes, or that his signature appearing on the
documents confirming his attendance at
the induction was suspect.
13.5.
The Commissioner rejected Ndzimande’s evidence that he and his
colleagues were not aware that they
were conducting an interview with
the media on basis that the uncontested evidence of Kekana revealed
that Ndzimande had informed
her of their intention to invite the
members of the media to attend the march. This was also in addition
to the evidence that correspondence
was sent to Ndzimande prior to
the march reminding him of the code on communication.
13.6.
The Commissioner further found that in view of the fact that
Ndzimande and his colleagues had organised
the march, it was
improbable that they were caught unaware of the status of the people
interviewing them.
13.7.
In considering whether the statements that were made to the SABC
radio stations were indeed false or constituted
misrepresentation,
the Commissioner observed that Ndzimande and his colleagues did not
produce any evidence to support the false
allegations made by them
against Xstrata, and that in contrast, the latter through its
witnesses had produced documentary evidence
to demonstrate that the
allegations were without substance, and that all their grievances had
been attended to.
13.8.
In the Commissioner’s view, Ndzimande was a disgruntled
employee on a crusade who refused to conduct
himself within
recognised industrial structures. This according to the Commissioner
was fortified by the fact that the shift system,
medical deductions
and remuneration structure were a product of an agreement between
Xstrata and the recognised bargaining parties.
Grounds
of review and submissions:
[14]
The applicants in their founding affidavit aver that the Commissioner
committed reviewable
irregularities in the conduct of the proceedings
in that he did not deal with the evidence before him in a balanced
manner contrary
to the standards of impartiality expected from
commissioners.
[15]
It was further averred that the Commissioner further committed a
gross irregularity in
labelling Ndzimande a disgruntled employee who
acted outside the scope and mandate of his trade union, NUM. The
applicants further
hold the view that the Commissioner was
inconsiderate in awarding a punitive costs order against them, taking
into account that
the punishable conduct ought to be attributed to
their previous attorneys of record.
[16]
Xstrata and Glencore in opposing the review application submitted
that the ultimate decision
reached by the Commissioner was materially
justified by the evidence placed before him, and that the applicants
failed to demonstrate
on which grounds the Commissioner’s
arbitration award was reviewable. In this regard, it was submitted
that:
16.1.
There was no merit in the contention that the Commissioner utilised
hearsay evidence to sustain the charges
of misconduct preferred
against the individual applicants in view of the lack of
corroborating evidence.
16.2.
It was further contended that the corroborating
evidence of Skhosana was unnecessary in view of the fact that the
audio recordings
were secured from the source, which was the SABC
radio stations.
16.3.
The Commissioner was required to determine whether
the voices in the audio recording were those of the individual
applicants and
if so, whether the statements attributed to them
constituted misrepresentation, which in turn constituted misconduct
in term of
Xstrata’ codes.
16.4.
The Commissioner’s analysis of the evidence
was not reviewable as the probabilities demonstrated that the
individual applicants
made false statements and, in the result, were
guilty of misconduct.
Evaluation:
[17]
It has been
repeatedly stated that in review proceedings, arbitration
awards
are not to be easily interfered with unless the decision arrived at
by the commissioner was entirely disconnected with the
evidence or is
unsupported by any evidence and/or involves speculation on the part
of the commissioner.
[2]
The test on review is whether the decision arrived at by the
commissioner is one that a reasonable commissioner could have
reached. As was stated in
Goldfields
,
the
review court must ascertain whether the arbitrator considered the
principal issue before him/her; evaluated the facts presented
at the
hearing and came to a conclusion which was reasonable to justify the
decisions he or she arrived at.
[3]
[18]
In this case, and in establishing the fairness of the dismissal, the
Commissioner had correctly
pointed out that central to the
determination of the dispute was whether the voices on the radio
clips, which Xstrata had obtained
from the SABC were those of the
individual applicants. It followed that once it was established that
this was indeed the case,
the enquiry to follow would have been
whether the statements attributed to the individual applicants
constituted misconduct, which
was gross enough to call for the
ultimate sanction of dismissal.
[19]
It is
further trite that when considering the fairness of a dismissal for
misconduct, commissioners are enjoined to have regard
to the
provisions of section 188(2) of the Labour Relations Act
[4]
.
In this regard, commissioners are further enjoined to have regard to
the provisions of Item 7 of Schedule 8 as contained in the
Code of
Good Practice: Dismissal
[5]
, and
the CCMA Guidelines.
[20]
In this case, the Commissioner had upon the concessions made by the
individual applicants,
concluded that indeed the voices heard were
theirs. These concessions came about belatedly, as the individual
applicants had as
far back as in the internal disciplinary enquiries,
denied that the voices on the audio clip were theirs. They had
continued with
that denial in the pre-arbitration minutes.
[21]
Once the concessions were made, it was then for the commissioner to
consider whether the
conduct in question constituted misconduct. It
follows that any question of the Commissioner having relied upon
hearsay in concluding
that the individual applicants had indeed made
the statement became moot. The evidence of the main complainant, Boy
Skhosana, who
had heard the statement over the radio and reported it
to Xstrata, was unnecessary. The audio clips were made available and
the
individual applicants had conceded that it was their voices that
were heard. Thus, no purpose would have been served by calling
Skhosana to testify on issues conceded to.
[22]
The Commissioner, and correctly so, found that Xstrata had a
communication policy in place,
and that it was improbable that the
individual applicants could not have been aware of the policy in view
of a variety of factors
including that the policy was brought to
their attention during their induction, and that they had signed to
attest that indeed
this was the case. A second consideration was that
on 30 July 2012, Ndzimande was issued with a final written
warning
for making false and/or incorrect statements about Xstrata to
the Department of Labour in regard to health and safety matters at
the workplace. A third consideration was that prior to the march on
28 September 2012, Ndzimande was issued with a letter
advising him to desist from making false and incorrect statements
about Xstrata and to raise matter properly in accordance with
company
procedures. In the light of these facts, it is patently clear that
the individual applicants ought to have known about
the policy and
the consequences of its breach.
[23]
A further issue for determination before the Commissioner was whether
the statements attributed
to the individual applicants constituted
misconduct in the sense that they were made in contravention of the
standing policy on
communication. Upon a concession having been made
that the voices heard over the audio clips were those of the
individual applicants,
their case was that they were not aware that
their statements were to be broadcast over the public media. The
Commissioner however
rejected that assertion, particularly since it
appeared from the evidence that Ndzimande had deliberately invited
the media to
the march. The evidence of Sara Kekana that Ndzimande
had personally informed her that the media would be present at the
march
was uncontroverted. Flowing from that, Kekana had informed
Ndzimande in writing of his obligations in terms of the company media
policy. In those circumstances, the probabilities that Ndzimande and
others could not have been aware that they were making statements
about the purpose of their march to the media are clearly remote.
[24]
The statements attributed to the individual applicants made over the
public media as the
Commissioner correctly found, had a detrimental
effect as they brought Xstrata’s name into disrepute. The fact
that the march
was legal, or did not disrupt production, or was
peaceful was irrelevant to the determination of the issues before the
Commissioner.
[25]
A clip of
the audio recording as transcribed
[6]
reveals that during the interview, Ndzimande, Lubusi and Makama
alleged
inter
alia
that if their demands were not met, a strike would take place
after a dispute was referred to the CCMA. They were further
heard
saying that that Xstrata was forcing employees to work long hours
without pay despite the company’s promises; that
Xstrata’s
head office in Australia gave employees 2.6 billion (currency
unspecified) to share, which Xstrata was withholding
and had instead
offered to give them profit sharing.
[26]
Ordinarily, there is nothing wrong when employees raise legitimate
grievances and threaten
to exercise their constitutional right to
strike. There is however everything wrong when in the course of
raising those grievances,
employees make false and defamatory
statements, which may have serious repercussions for the employer.
This is particularly even
moreso, where those employees had been
warned to desist from such conduct.
[27]
It can
further be accepted that the nature of our labour relations is such
that it is adversarial. One of the primary objectives
of the LRA is
to create rules of engagement by promoting and facilitating
collective bargaining at the workplace, and to provide
a framework
within which employees and their trade unions can collectively
bargain with their employers on a variety
of issues, with the aim of
promoting effective resolution of labour dispute
[7]
.
[28]
It follows from the above that ordinarily, where there are recognised
union structures
at a workplace, it would be the union leadership
that speaks on behalf of the employees and articulates whatever
grievances they
may have. Where however employees disassociates
themselves from their own union which had been engaged with the
employer on their
grievances, and thereafter act on a frolic of their
own outside of the rules of engagement, and further make public
statements
against the employer or anyone for that matter that are
false and defamatory, they must be visited with the consequences
thereof.
[29]
To the extent that the individual applicants had accused Xstrata of a
variety of wrong-doing
including that their grievances had not been
resolved and monies due to them were not paid in respect of shift or
overtime allowances,
the evidence before the Commissioner was that
all the grievances and issues raised by the employees including
non-payments of whatever
was due to the employees, health and safety,
shift systems, medical aid deductions, allowances, and/or alleged
exploitation of
employees, were investigated by both the Department
of Labour and the Department of Minerals and Energy. Ordinarily, if
the Departments
had investigated the complaints and found any
wrongdoing on the part of Xstrata, further steps would have been
taken including
the issuing of compliance orders.
[30]
Significant with the evidence and the Commissioner’s findings
in this regard was
that all the issues raised by Ndzimande and other
employees had been attended to and dealt with in consultation with
their union,
NUM, which they had disassociated themselves from. The
issue of funds coming from Australia was equally explained on behalf
of
Xstrata, as it was the latter’s contention that it was
resolved by affording all employees an opportunity to buy into a
share
scheme, and if they were unsure of the details in that regard,
it was up to them to seek clarity.
[31]
In the light of documentary proof adduced on behalf of Xstrata
that all the employees’
grievances had been attended to and
resolved, nothing was presented before the Commissioner by the
individual applicants that this
was not the case. It followed that
there was no cause for them to make the false allegations against
Xstrata. The individual applicants
had not presented anything before
the Commissioner to demonstrate any semblance of truth in their
statements made to the media.
[32]
The statements made by the individual applicants to the public media
were patently false,
malicious and damaging to Xstrata’s
reputation. It is indeed startling for the individual applicants
to argue that
the charges against them or the conduct complained of
had nothing to do with Xstrata, its policies or rules, since the
statements
were made in their own personal capacities but on behalf
of 600 other employees. The fact remains that they acted on a frolic
of
their own and outside the rules of engagement. They had embarked
on their march as employees of Xstrata, and had made false statements
against it contrary to established policies.
Their
further contention that they were merely exercising their freedom of
speech and did not need Xstrata’s permission is
clearly without
merit.
The employees’ freedom of expression is not
unfettered. Thus, they cannot embark on a march and make false
statements against
the employer without consequences.
[33]
It follows from the above that the individual applicants had broken
the rules in relation
to Xstrata’s communication policy despite
being warned, the effect of which was to place Xstrata’s name
into disrepute.
Their evidence or defence that they were merely
exercising their freedom of expression amounts to red herring.
Significantly, other
than continuously having denied that they had
made the statements until their belated concessions at the
arbitration proceedings,
they had not at any stage appreciated or
acknowledged their wrongdoing nor shown any contrition in that
regard.
[34]
It was
argued on behalf of the individual applicants that the Commissioner
in confirming their dismissal had not taken account of
their long
service to the company. It has long been stated that long service on
its own is not sufficient to save an employee’s
job especially
in circumstances where the conduct complained of was gross
[8]
.
I have already indicated in this judgment that the misconduct in
question had serious repercussions for Xstrata. In any event,
an
employee with a long service is expected to be even more familiar
with company policies and rules. Furthermore, the fact that
Ndzimande
was already on a final warning for similar conduct does not appear to
have dissuaded the individual applicants from their
self-destructing
path. To this end, a sanction of dismissal as correctly found by the
Commissioner was indeed appropriate in the
circumstances.
[35]
In regards to the issue of costs as awarded by the Commissioner
against the individual
applicants, it was their case that the
Commissioner was inconsiderate as they had presented a case before
him, and that they could
not be blamed for the conduct of their
previous attorneys who withdrew from the matter midstream the
arbitration proceedings.
[36]
It was common cause that two sets of attorneys representing the
individual applicants withdrew
midstream the arbitration proceedings,
viz
Snyman attorneys and Omar attorneys. Ultimately, the
individual applicants were represented by Ndzimande for the remainder
of the
proceedings, which took place over a period of thirteen days
between 3 June 2013 and 15 May 2014.
[37]
In awarding costs, the Commissioner had lamented the conduct of the
applicants, including
that they had caused the delays in finalising
the matter through postponements despite timeous notifications; that
they had denied
allegations and then made belated concessions; that
they had denied knowledge of Xstrata’s policies despite oral
and documentary
evidence to the contrary; that Ndzimande had
persisted with making false allegations against Xstrata in the
proceedings despite
having placed no evidence in support of
those allegations; and the fact that they had unreasonably refused to
accept a settlement
proposal and persisted with a weak case.
[38]
In my view, and in the light of the reasons outlined by the
Commissioner, I fail to appreciate
how the Court can interfere with
his discretion in regards to costs, which cannot by any account be
said to have been exercised
arbitrarily, capriciously or maliciously.
A mere allegation that a commissioner was ‘inconsiderate’
when awarding costs
is not sustainable on its own to have the costs
order reversed.
[39]
In
conclusion, and in line with the enquiry enunciated in
Goldfields
[9]
,
I am satisfied that the Commissioner gave the parties a full
opportunity to have their say in respect of the dispute; had
correctly
identified the dispute he was required to arbitrate;
understood the nature of the dispute he was required to arbitrate;
dealt with
the substantial merits of the dispute; and arrived at a
decision that falls within a band of reasonableness.
[40]
The applicants were represented by Freedom of Expression Institute,
and having had regard
to the circumstances of the case and the costs
order already imposed on them by the Commissioner, I am of the view
that the requirements
of law and fairness militates against a further
costs order.
[41]
In the premises, the following order is made;
Order:
1. The
Applicants’ application to review and set aside the arbitration
award issued by the First Respondent under
case number MP 466-13
dated 25 May 2014 is dismissed.
2. There is no
order is to costs.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicants:
M.D Teffo
Instructed
by: Freedom
of Expression Institute (FXI)
For
the Third and Fourth Respondents: Mr
D. Cithi of Mervyn Tabacks Incorporated
[1]
DISCIPLINARY
COMPLAINT FORM
…
1.
Gross misconduct arising out of the following
:
1.1
Your conduct in making incorrect or false statements
regarding the
Company and/or the workplace both in public and the media;
1.2
Bring the Company into disrepute or undermining its
image through
incorrect or false public statements;
1.3
Failing to obey instructions to follow the recognized
channels or
procedure in raising alleged grievances or complaint.
[2]
DRS
Dietrich, Voigt & Mia v Bennet CM N.O & Others
.
Case
no: CA14/2016 (Delivered on
27
February 2019 at para [30]
[3]
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ 943 (LAC) at para [16]
[4]
Act 66 of 1995 (as amended) Which provides that;
‘
Any
person considering whether or not the reason for
dismissal
is a fair reason or whether or not the
dismissal
was effected in accordance with a fair procedure must take into
account any relevant
code of good
practice
issued in terms of
this
Act”
[5]
Which provides:
'
Guidelines in cases of dismissal for
misconduct
. -
Any person who is
determining whether a
dismissal
for misconduct is
unfair should consider –
(a)
whether or not the
employee
contravened a rule or
standard regulating conduct in, or of relevance to, the workplace;
and
(b)
if a rule or standard was contravened, whether or not -
(i)
he rule was a valid or reasonable rule or standard;
(ii)
the
employee
was aware, or could reasonably be
expected to have been aware, of the rule or standard;
(iii)
the rule or standard has been consistently applied by the employer;
and
(iv)
dismissal
was an appropriate sanction for the
contravention of the rule or standard.'
[6]
Page
426 of the Index to Record Bundle
[7]
Section
1 of the LRA
[8]
See
Woolwoths
(Pty) Ltd v Commission for Conciliation Mediation and Arbitration
and Others (LAC)
[2011] 10 BLLR 963
(LAC); (2011) 32 ILJ 2455 (LAC),
where it was held that;
“
[48]
It has long been held that the employer’s decision to
dismiss an employee will only be interfered with if that
decision is
found to have been unreasonable and unfair. The fact that an
employee has had a long and faithful service with the
employer thus
far is indeed an important and persuasive factor against a decision
to dismiss the employee for misconduct, but
is by no means a
decisive one. In
Toyota South
Africa Motors (Pty) Ltd v Radebe and Others,
this Court held:
“
Although
a long period of service of an employee will usually be a mitigating
factor where such an employee is guilty of misconduct,
the point
must be made that there are certain acts of misconduct which are of
such a serious nature that no length of service
can save an employee
who is guilty of them from dismissal. To my mind one such clear act
of misconduct is gross dishonesty.””(Citations
omitted)
[9]
At
para [20]