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[2019] ZALCJHB 84
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Sibanda v Pretorrius NO and Others (JR2637/16) [2019] ZALCJHB 84 (4 April 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR2637/16
In
the matter between:
CHARLES
TUMELO
SIBANDA Applicant
and
DA
PRETORRIUS N
O First
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
Second Respondent
DINERS
CLUB SA (PTY) LTD
Third Respondent
Heard
:
13 July 2018
Delivered
:
4 April 2019
JUDGMENT
MOSEBO,
AJ
Introduction
[1]
This is an
application brought in terms of section 145(1)(a) of the Labour
Relations Act
[1]
(the Act). In
this application, the applicant seeks to review and set aside the
arbitration award handed down by the first respondent
(the
commissioner) on 21 October 2016, under case number GAJB6816-16.
[2]
In her arbitration award, the commissioner had accepted that the
applicant
was guilty as charged and had found his dismissal to have
been substantively fair. The review application is opposed by the
third
respondent.
Background
[3]
The applicant was employed by the third respondent in various
capacities
for a period of 15 years. At the time of his dismissal the
applicant was employed as a relationship manager. In that position,
he was looking after various portfolios which included the Liberty
account. Liberty is a subsidiary of the Standard Bank Group.
He
reported directly to Mr Warren Tanner-Ellis (Tanner-Ellis), head of
sales and relationship management and Tanner-Ellis reported
to Mr
Kevin Lomax (Lomax), a senior manager for corporate card division.
[4]
On or about 21 December 2015, the applicant went on leave and left an
out of office notice on his e-mail explaining that he would return on
11 January 2016. He gave alternative contact details of his
subordinate and two other persons.
[5]
On 13 January 2016, an e-mail was received from Ms Kele Mohatle
(Mohatle),
a travel manager from Liberty addressed to Tanner-Ellis.
In that email, Mohatle advised Tanner-Ellis that the Liberty diners
lodge
card was cancelled on 31 December 2015 due to suspected fraud
and she lamented the fact that she had not received feedback from
the
third respondent regarding the outcome of the suspected fraud which
led to the cancellation of the said card. She indicated
that as a
result, it was difficult for Liberty to process travel bookings.
Mohatle further stated that she had attempted to contact
the
applicant and even left him a voicemail to assist urgently but no
feedback was received from him.
[6]
On the same date, Tanner-Ellis responded to Mohatle's e-mail
aforesaid.
He apologised for the inconvenience and
inter alia
,
indicated that Ms Tania Roos would research as to what could have
happened and would provide feedback. He also indicated that
going
forward and with immediate effect, the applicant had been replaced
with Mr Cassie Esterhuizen (Esterhuizen), a senior relationship
manager who would be handling the Liberty account.
[7]
On the same date, the applicant received an email from Lomax
instructing
him to respond to Mohatle's complaint as aforesaid. It
appears that as the applicant was going through Lomax's email, he
noticed
Tanner-Ellis's email to Mohatle and realised that
Tanner-Ellis had already spoken to Mohatle on the same date. This was
the first
time the applicant became aware of Mohatle's complaint.
However, on perusal of Tanner-Ellis's email, the applicant felt that
Tanner-Ellis
spoke to his client behind his back and that he had also
made a decision to replace him as the account holder without
consulting
with him. He then responded to Tanner-Ellis's email and
indicated that he was on leave from 21 December 2015 to 11 January
2016
and had no access to his email. He also stated as follows:
'Why
don’t you advise the client that I was on leave, and just take
remedial action without involving me? Warren, I would
like to have a
meeting with HR regarding this matter, you cannot just remove an
account from my portfolio without discussing it
with me first'.
[2]
[8]
Lomax
responded to the applicant's email and indicated that the decision to
move the entire Standard Bank Group account to Esterhuizen
was due to
business development opportunities and that he had communicated that
decision when he took the applicant through the
operating model
review. He indicated that this particular decision had nothing to do
with the incident in question but he also
indicated that he wanted
this particular incident to be reviewed and to learn from it.
[3]
[9]
On 14 January 2016, Lomax scheduled a meeting involving himself,
Tanner-Ellis
and the applicant. Lomax opened the meeting by
indicating that the purpose of the meeting was to discuss the
incident concerning
Mohatle's email received on 13 January 2016. It
appears that the applicant provided his explanation, but on the other
hand, he
also wanted to know as to why the Liberty account was
removed from his portfolio without consulting him. It appears that
Lomax
explained to the applicant that the decision to remove the
Liberty account from the applicant's portfolio was already taken in
the previous year as part of the new business model review to be
introduced in January 2016 and this was part of the presentation
made
to the applicant by Lomax in December 2015.
[10]
It is alleged that the applicant responded by raising his voice and
became very aggressive
and in the process accused Lomax of lying and
making 'willy-nilly' decisions and also stated that he did not
recognise Lomax's
authority to make that type of a decision. It is
further alleged that the applicant pounded the table several times
until Lomax
abruptly adjourned the meeting. As a result of the
alleged conduct the applicant was issued with a notice to attend a
disciplinary
hearing scheduled for 17 February 2016 formulated as
follows:
"The purpose of the
Hearing will be to consider the Bank's concerns relating to the
alleged misconduct on your part in that
you conducted yourself in
unacceptable and unprofessional manner while attending a staff
meeting on the 14
th
of January 2016, your actions were insubordinate and disrespectful to
your senior manager".
[4]
[11]
At the end
of the disciplinary hearing the applicant was found guilty as charged
and the chairperson imposed a sanction of dismissal
effective from 07
March 2016.
[5]
Thereafter, the
applicant referred an alleged unfair dispute to the second respondent
for conciliation which was unsuccessful and
the matter was then
referred to arbitration which took place before the commissioner on
06 September and 07 October 2016. As stated,
the commissioner found
the dismissal of the applicant substantively fair and dismissed the
claim.
The
Arbitration Award
[12]
In her analysis of evidence and argument, the commissioner found that
the respondent's
evidence was clearly presented and supported by
e-mails, minutes and a copy of the warning. She found the
respondent's first witness
to have been precise and his version
consistent with his presentation at the disciplinary hearing and his
version of events was
more or less unchallenged except in one
respect. She found the respondent's second witness to have
corroborated the first witness's
version in every detail and she
concluded that the respondent's witnesses seemed more reliable.
[13]
On the other hand, the commissioner found the applicant's evidence to
have been an uneasy
blend of bare denials of the allegations against
him, unconvincing and disingenuous at various points.
[14]
In respect of the meeting held on 14 January 2016, the commissioner
recorded that the applicant's
case was that he was being falsely
accused of not following up a query when he was legitimately away
from work on holiday and that
he took reasonable steps to provide his
clients with assistance in his absence and that he was ambushed on
his return by an uncommunicated
decision to remove one of his biggest
accounts thereby threatening his income.
[15]
The commissioner stated that she found the applicant's version on
what happened with regard
to the complaint contradictory in that the
applicant admitted that he received a call from Mohatle then later
denied it and then
admitted that there was a follow up call which
would have indicated the urgency and the nature of the problem, but
then he apparently
did nothing about it upon his return to the office
on 11 January 2016. When he was challenged further on this he claimed
that he
was told that the problem was resolved.
[16]
In respect
of the alleged unacceptable and unprofessional conduct, the
commissioner stated that the issue at hand was whether or
not the
applicant conducted himself 'in an unacceptable and unprofessional
manner' on 14 January 2016, and whether or not he was
'insubordinate
and disrespectful' to his senior manager.
[6]
The commissioner indicated that insubordination, according to
Professor John Grogan in his book Dismissal, Discrimination and
Unfair Labour Practices, is often linked to a refusal to obey an
instruction, but this is really only a symptom of the underlying
problem, which is an employee refuses to accept the authority of a
person in authority over the employee.
[17]
She further
stated that this is generally considered to be dismissible if it can
be shown there was "gross" insubordination.
Factors to be
considered include the manner in which this is expressed, the
position of the person whose authority is repudiated,
the reason for
the person's defiance and the number of times it occurs. The key is
whether or not this conduct is both deliberate,
persistent and
serious.
[7]
[18]
The
commissioner also referred to the learned author's view that is based
on
Slagment
(Pty) Ltd v BCAWU and others
[8]
,
arbitrators should be slow to regard 'insensitivity' by management
when rearranging working structures as an excuse for sustained
and
deliberate refusal to comply with them, though he noted that in the
case of changed working conditions, employers must at least
try to
persuade employees to accept these.
[19]
Based on the authority set out above, the commissioner concluded that
the applicant refused
to accept the authority of Lomax to move his
Liberty account. This was because the applicant said so, when he said
that he did
not recognise Lomax's authority and when he said this was
not within Tanner-Ellis's powers. The commissioner rejected the
applicant's
version and accepted the third respondent's version.
[20]
She then found that the applicant had told Lomax that he was a liar,
he had no authority
to make such decisions, he always saw problems
with his work, he did not know anything and he refused to change his
approach to
customer complaints and told him that he did not care
what he thought. She found that the applicant's words and actions on
that
day were largely undisputed, except for the raised voice, which
the applicant later also conceded that he did do. The commissioner
found that there was enough evidence to establish that the applicant
was grossly insubordinate and that he conducted himself in
a
disrespectful and unprofessional manner towards his senior.
Therefore, she concluded that all these allegations made against
Lomax in the presence of Tanner-Ellis amounted to clear repudiation
of Lomax's authority who was two levels more senior than the
applicant.
[21]
Thereafter, the commissioner dealt with the reasons that could have
led to the said defiance
but she rejected all of them as being
untrue, unreasonable and unlikely to justify the applicant's actions.
She found that a more
likely 'trigger' for his rage, as the
applicant's representative put it, seemed to be his ongoing sense of
grievance at actually
being supervised.
Grounds
for Review
[22]
The arbitration award is attacked on the following grounds:
22.1
The commissioner committed an error of fact by
inter alia
failing to have regard to relevant evidence, interpreting the
evidence incorrectly and/or drawing erroneous conclusions from the
evidence.
22.2
The commissioner failed to apply her mind to the facts and the law
relating to the charge of
insubordination. She misconstrued the
nature of the charges by failing to distinguish between
insubordination and insolence and
she committed an error of law by
not taking into consideration that the applicant was charged and
dismissed for something he did
not do. It is contended that the third
respondent charged the applicant with insubordination when the
contents of the charge constitutes
gross insolence and it further
contended that the conduct and evidence clearly indicated that the
applicant did not fail to obey
an instruction but was rather
dismissed for his tone and disrespect.
22.3
The commissioner in assessing the fairness and appropriateness of
dismissal failed to assess
the gravity of the alleged misconduct with
reference to the fact that the applicant's conduct was neither wilful
nor serious and
further failed to take into consideration that the
applicant's dismissal was too harsh.
The
Legal Position
[23]
In his
celebrated work, Proffessor John Grogan
[9]
states that a distinction has traditionally been drawn between
insolence (repudiation by an employee of the employee's duty to
show
respect) and insubordination (refusal to obey the employer's
instructions)
[10]
. The learned
author referring to
Wasteman
Group v SAMWU and Others
[11]
further indicated that
'however,
nothing turns on the distinction in that the test for both forms of
misconduct is whether the employee's conduct demonstrates
an
intention to challenge the employer's authority
.'
[24]
In
Wasteman
supra, the Labour Appeal Court (LAC) held that a
reasonable decision maker in the position of a commissioner is
required to be
alive to the distinction between mere insubordination
and gross insubordination which must give rise to the ultimate
sanction of
dismissal and that in order to come to the latter
conclusion, the commissioner is required to have analysed the facts
and found
a plausible and reasonable justification for the sanction.
[25]
Prof Grogan
also referred to
CCAWUSA
and Another v Wooltru Ltd t/a Woolworths (Randburg)
[12]
where the Court equated insolence with impudence, cheekiness,
disrespect or rudeness and distinguished 'mere' insolence from
insubordination
but then opined that the distinction is overly
technical as both forms of misconduct give expression to a
repudiation of authority,
which rests as much on respect as it does
on obedience.
[26]
In
Palluci
Home Depot (Pty) Ltd v Herskowitz and Others
[13]
the LAC had an opportunity to address the issue of insubordination
versus insolence. The court per Kathree-Setiloane AJA stated
the
following:
"It is clear from
this finding that the Labour Court failed to appreciate that the
refusal to carry out an instruction is not
the only basis upon which
to found a charge of insubordination. The offence of insubordination
in the workplace has, in this regard,
been described by our courts as
a wilful and serious refusal by an employee to obey a lawful and
reasonable instruction or where
the conduct of an employee poses a
deliberate (wilful) and serious challenge to the employer's
authority. Whereas in some cases
defiance of an instruction may
indicate a challenge to the authority of the employer, this is not so
in every case. Insubordination
may also be found to be present where
disrespectful conduct poses a deliberate (wilful) and serious
challenge to or defiance of
the employer's authority, even where
there is no indication of the giving of an instruction or defiance of
an instruction. It is,
therefore, not essential for an instruction to
be given or disobeyed to found a challenge to the employer's
authority.
[14]
The refusal by an
employee to carry out an employer's instruction is, therefore, not
always required for a finding of insubordination.
However, the
failure of the Labour Court to recognise this did not, in my view,
influence its characterisation of the conduct of
the first
respondent, on the evidence led at the arbitration hearing in
relation to charge (a), as constituting 'insolence' as
opposed to
'insubordination'. In characterising the first respondent's conduct
as 'insolence', the Labour Court relied upon the
decision of Wooltru,
which emphasises the importance of distinguishing insubordination
from insolence simply because they are different
offences. Wooltru
equates the offence of insolence with conduct which is offensive,
disrespectful, impudent, cheeky, rude (disrespectful
in speech or
behaviour), insulting or contemptuous, and insubordination with
'resistance to or defiance of authority; disobedience,
and refusal to
obey an order of a superior'. Wooltru makes it clear that, although
an employee can be both insolent and insubordinate
at the same time,
he or she can be insolent without necessarily being
insubordinate.”
[15]
[27]
The Court continued:
"As
demonstrated, there is a fine line between insubordination and
insolence, and insolence may very well become insubordination
where
there is an outright challenge to the employer's authority. However
acts of mere insolence and insubordination do not justify
dismissal
unless they are serious and wilful. A failure of an employee to
comply with a reasonable and lawful instruction of an
employer or an
employee's challenge to, or defiance of the authority of the employer
may justify a dismissal, provided that it
is wilful (deliberate) and
serious. Likewise, insolent or disrespectful conduct towards an
employer will only justify dismissal
if it is wilful and serious. The
sanction of dismissal should be reserved for instances of gross
insolence and gross insubordination
as respect and obedience are
implied duties of an employee under contract law, and any repudiation
thereof will constitute a fundamental
and calculated breach by the
employee to obey and respect the employer's lawful authority over him
or her."
[16]
Analysis
[28]
The applicant's first ground of review is that the commissioner
committed an error of fact
by inter alia failing to have regard to
relevant evidence, interpreting the evidence incorrectly and/or
drawing erroneous conclusions
from the evidence. The problem with
this ground of review is that there is no supporting factual basis
provided in the founding
affidavit on exactly which parts of the
commissioner's findings are being challenged. This ground of review
was also not pursued
by the applicant either in the heads of argument
filed on his behalf or in oral argument at the hearing of this
matter. Therefore,
I do not find this ground of review to have any
substance.
[29]
The applicant's representative's attention was more focused on the
second ground of review.
In this regard, it was submitted that the
commissioner failed to apply her mind to the facts and to the law
relating to the charge
of insubordination and that she misconstrued
the nature of the charges by failing to distinguish between
insubordination and insolence.
The applicant's contention is based on
Wooltru
and
Palluci
supra and it was submitted that the
commissioner committed an error of law by not taking into
consideration that the applicant
was charged and dismissed for
something he did not do. The applicant's main contention is that the
third respondent charged him
with insubordination when the contents
of the charge constitutes gross insolence. It was further submitted
that the conduct and
evidence clearly indicated that the applicant
did not fail to obey an instruction but was dismissed for his tone
and disrespect.
[30]
I find this ground of review a bid astounding in particular because
of its reliance on
Palluci
. This is because in
Palluci
,
the LAC indicated that the offence of insubordination in the
workplace has been described by our courts as a wilful and serious
refusal by an employee to obey a lawful and reasonable instruction or
where the conduct of an employee poses a deliberate (wilful)
and
serious challenge to the employer's authority. It was made clear that
insubordination may also be found to be present where
disrespectful
conduct poses a deliberate (wilful) and serious challenge to or
defiance of the employer's authority, even where
there is no
indication of the giving of an instruction or defiance of an
instruction. It is, therefore, not essential for an instruction
to be
given or disobeyed to found a challenge to the employer's authority.
[31]
In
Palluci
, the LAC went on to explain and demystify any
misunderstandings that may have been attributed to
Wooltru
. In
particular, it was pointed out that
Wooltru
equates the
offence of insolence with conduct which is offensive, disrespectful,
impudent, cheeky, rude (disrespectful in speech
or behaviour),
insulting or contemptuous, and insubordination with 'resistance to or
defiance of authority; disobedience, and refusal
to obey an order of
a superior' but
Wooltru
also makes it clear that, although an
employee can be both insolent and insubordinate at the same time, he
or she can be insolent
without necessarily being insubordinate.
[32]
The LAC concluded that there is a fine line between insubordination
and insolence, but
insolence may very well become insubordination
where there is an outright challenge to the employer's authority. In
my view, this
confirms Proffessor Grogan's opinion referred to above
that nothing turns on the distinction in that the test for both forms
of
misconduct is whether the employee's conduct demonstrates an
intention to challenge the employer's authority.
[33]
It follows therefore that the applicant's contention that the
commissioner misconstrued
the nature of the charges by failing to
distinguish between insubordination and insolence and/or that the
third respondent charged
the applicant with gross-insubordination
when the evidence indicated gross-insolence has no basis. It is
apparent from
Palluci
that the issuing of an instruction
and/or the defiance of an instruction is not the necessary element of
this offence because the
test is whether the employee's conduct
demonstrated an intention to challenge the employer's authority.
[34]
In her arbitration award the commissioner concluded, taking into
account his behaviour
as recorded above, that the applicant refused
to accept the authority of Lomax to move his Liberty account. The
commissioner further
found that there was enough evidence to
establish that the applicant was grossly insubordinate and that he
conducted himself in
a disrespectful and unprofessional way towards
his senior and that the applicant's act of insubordination
demonstrated in the presence
of Tanner-Ellis amounted to clear
repudiation of Lomax's authority who was two levels more senior than
the applicant.
[35]
It also important to consider that, in this matter, the commissioner
also dealt with the
reasons that could have led to the applicant's
defiance but rejected all of them as being untrue, unreasonable and
unlikely to
justify the applicant's actions. She found that a more
likely 'trigger' for his rage, as the applicant's representative put
it,
seemed to be his ongoing sense of grievance at actually being
supervised.
[36]
It is apparent from the facts set out above that the commissioner
has, in this matter,
properly applied her mind to the facts and
to the law relating to the charge of insubordination and that she has
not misconstrued
the nature of the charges by failing to distinguish
between insubordination and insolence.
[37]
In
Palluci
, the LAC found that although the employee's conduct
could be described as insolent, impudent, disrespectful and rude, it
did not
constitute insubordination as it was not persistent, wilful
and serious challenge of defiance of the employer's authority. Nor
could it be described, on the evidence, as a "calculated
challenge" to the employer's authority since it was found to
be
neither deliberate nor intentional.
[38]
The LAC found that the employee had been provoked by the employer
firstly by the unlawful
deduction of monies from her salary and
secondly by the condescending manner in which the employer had turned
his back to her whilst
she attempted to discuss the issue of the
deduction with him. The court found that the employee's conduct was
nothing more than,
at best, an isolated knee jerk in the heat of the
moment by the employee – who had been provoked by the employer.
In her
anger at the deduction coupled with the employer's refusal to
discuss the issue with her by turning his back to her, she reacted
precipitously by demanding, in a raised voice, that he should not
turn his back to her while she was discussing the issue of deduction
with him. The court found that whilst the employee's conduct was
manifestly insolent, it could not be said to be a serious, persistent
and a deliberate challenge to the employer's authority on which to
found a charge of insubordination or gross insubordination.
[39]
In the instant case, the commissioner did not find any evidence of
provocation. She considered
the reasons that could have led to the
applicant's defiance in particular his claim that he did not know
about the account being
moved to Esterhuizen and learnt about it in a
provocative manner in a chain of events and that he felt that he was
unjustly being
held to account for poor service when he was on
holiday. The commissioner considered the applicant's version in this
regard and
found that from the 01 December 2015, there was
considerable evidence that the applicant knew that this account would
move. She
also considered the applicant's version that he knew that
the Standard Bank Group account would move to Esterhuizen but he did
not see that as including the Liberty account as he assumed that the
move would only apply to future accounts.
[40]
The commissioner found it unreasonable for an experienced account
manager such as the applicant
to assume that the Liberty account was
not going to move to Esterhuizen even though it was part of the
Standard Bank Group given
the rationale for the move which was to
treat Standard Bank and all its subsidiaries as one very important
client in its own right.
Therefore, the commissioner rejected the
applicant's version and preferred the third respondent's version. The
effect of this conclusion
is that the commissioner found no evidence
of provocation by the employer.
[41]
This court
is alive to the fact that there was a considerable dispute between
the parties on whether or not, at the meeting held
with the applicant
on 01 December 2015, the third respondent's witnesses had informed
the applicant that the Liberty account would
also move to
Esterhuizen. As stated in the preceding paragraph, the commissioner
considered that dispute and came to the conclusion
that there was
considerable evidence presented at the arbitration to establish that
the applicant was duly informed. In
Quest
Flexible Staffing Solutions (Pty) Ltd (A division of Adcorp
Fulfilment Services (Pty) Ltd) v Legobate
[17]
the LAC stated that:
"Our courts have
repeatedly stated that in order to maintain the distinction between
review and appeal, an award of an arbitrator
will only be set aside
if both the reasons and the result are unreasonable….
[18]
An award will no doubt be
considered to be reasonable when there is a material connection
between the evidence and the result or,
put differently, when the
result is reasonably supported by some evidence. Unreasonableness is,
thus, the threshold for interference
with an arbitrator's award on
review."
[19]
[42]
In
Fidelity
Cash Management Service v CCMA and Others
[20]
Zondo JP (as then he was) stated the following:
"The Constitutional
Court further held that to determine whether a CCMA commissioner's
arbitration award is reasonable or unreasonable,
the question that
must be asked is whether or not the decision or finding reached by
the commissioner 'is one that a reasonable
decision maker could not
reach' (para 110 of the Sidumo case). If it is an award or decision
that a reasonable decision maker could
not reach, then the decision
or award of the CCMA is unreasonable, and, therefore, reviewable and
could be set aside. If it is
a decision that a reasonable decision
maker could reach, the decision or award is reasonable and must
stand. It is important to
bear in mind that the question is not
whether the arbitration award or decision of the commissioner is one
that a reasonable decision
maker would not reach but one that a
reasonable decision maker could not reach …."
[21]
[43]
In applying this test to the present case, I am of the view that the
commissioner's conclusions
are reasonably supported by the evidence
and that there is a material connection between the evidence and the
result. Therefore,
I am of the view that the finding reached by the
commissioner herein is one that a reasonable decision maker could
reach based
on the evidence presented at the arbitration.
[44]
Therefore
Palluci
is distinguishable on the facts from the
instant case in that apart from the lack of provocation, in the
instant matter, the applicant's
conduct as recorded above was found
to have amounted to a clear repudiation of Lomax's authority and
further the applicant also
had a valid previous final written warning
relating to failure to comply with instructions which was considered
to be relevant.
In the final analysis, the level of insubordination
in the instant matter was more serious than the level of
insubordination in
Palluci
and the circumstances were also
different.
[45]
The applicant's last ground of review is that in assessing the
fairness and appropriateness
of the dismissal, the commissioner
failed to assess the gravity of the alleged misconduct with reference
to the fact that the applicant's
conduct was neither wilful nor
serious and that the sanction of dismissal was too harsh.
[46]
In her award, the commissioner stated that on the question of whether
or not this was deliberate
defiance, this was not so clearly
established as all the parties seemed to agree that the applicant
lost his temper. This would
imply that his actions were less than
deliberate. However, seen in the context which the applicant himself
insisted on creating,
there was more than one challenge to the
authority of Tanner-Ellis when he set about the process of querying
the applicant's travel
claims and verifying his whereabouts.
[47]
If this was not deliberate defiance, it seemed more likely than not
that it would keep
occurring as the applicant did not seem to be able
to control his on-going defensive and difficult reactions when given
instructions.
It is apparent that the commissioner considered that
the applicant's conduct was not wilful because she found it to be
less than
deliberate but she also found that his defiance to
Tanner-Ellis seemed more likely than not to keep occurring.
[48]
It is also apparent that the commissioner considered the appropriate
penalty by weighing
the gravity of the offence against the mitigating
factors but found that the applicant seemed unlikely to change his
attitude as
he was unrepentant, had admitted no fault at all and had
confirmed that he felt no remorse. This ground of review has no
substance
and falls to be dismissed as well.
Costs
[49]
This court finds that it would be fair for each party to bear its own
costs.
[50]
In the premises, I make the following order:
Order
1. The review
application is dismissed.
2. There is no order
as to costs.
__________________________
PM
Mosebo
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the applicant: Mr T Carstens
Instructed
by:
Higgs Attorneys
For
the respondent: Mr D Cithi of Mervyn Taback Incorporated
[1]
66
of 1995, as amended.
[2]
Record of the proceedings (Volume 3) at p 287.
[3]
Record of the proceedings (Volume 3) at p 288.
[4]
Record of the proceedings (Volume 3) at p 267.
[5]
Record of the proceedings (Volume 3) at p 280.
[6]
Pleadings Bundle at p33 para 252.
[7]
Id fn 6 at paras 253 and 254.
[8]
(1994) 15 ILJ 979 (A).
[9]
Grogan Dismissal 3
rd
Edition (Juta, 2017) at p285
[10]
CCAWUSA
and Another v Wooltru Ltd t/a Woolworths (Randburg)
(1989) 10 ILJ 311 (IC).
[11]
(2012) 33 ILJ 2054 (LAC).
[12]
(1989) 10 ILJ 311 (IC).
[13]
(2015) 36 ILJ 1511 (LAC)
[14]
Id fn 13 at para 19.
[15]
Id fn 13 at para 20.
[16]
Id fn 13 at para 22.
[17]
(2015) 36 ILJ 968 (LAC).
[18]
Id fn 17 at para 12.
[19]
Id fn 17 at para 13.
[20]
(2008) 29 ILJ 964 (LAC).
[21]
Id fn 20 at para 97.