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[2019] ZALCCT 23
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United National Transport Union obo Schrenk v Levy NO and Others (C15/17) [2019] ZALCCT 23; [2019] 9 BLLR 970 (LC) (23 April 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
case
no: C15/17
In
the matter between
UNTU
OBO SCHRENK
Applicant
and
EMMA
LEVY N.O.
First
Respondent
TRANSNET
BARGAINING COUNCIL
Second
Respondent
TRANSNET
PORT TERMINALS
Third
Respondent
Heard:
29 November 2018
Delivered:
23 April 2019
JUDGMENT
RABKIN-NAICKER
J
[1]
This is an opposed application to review an arbitration award issued
by the first
respondent (the Arbitrator).
[2]
The applicant employee (Schrenk) was employed by the third respondent
for a period
of 34 years. At the time of his dismissal in September
2016, he was a Technical supervisor. Schrenk was dismissed after
allegations
that he made racist remarks to a fellow employee.
[3]
It was submitted on behalf of Schrenk that the award is not one of a
reasonable decision-maker.
The primary basis for this argument is
that although the arbitrator found the dismissal to have been
substantially unfair, she
simply awarded Schrenk one month’s
compensation
[1]
to him without
the remedy of reinstatement.
[4]
The Arbitrator summarised the background to the dismissal as follows:
“
The Applicant was
dismissed for allegedly making racist remarks against an employee on
16 September 2016. A dispute was referred
to the Transnet Bargaining
Council on the Applicant’s behalf by his trade union (UNTU) on
24 September 2016 challenging the
fairness of the dismissal and
seeking his reinstatement with the company.
Prior to his dismissal,
the Applicant was suspended on full pay (on 24 August 2016) pending a
disciplinary hearing to investigate
the allegations stated above. The
suspension followed a formal grievance hearing by the company (18
August 2016) after a grievance
was submitted by an employee (on 16
August 2016).
On 1 September 2016, the
applicant was notified to attend a disciplinary hearing (on 14
September) to consider allegations of Racism
and Degrading Remarks:
“
That on Tuesday 16 August at approximately 10am
at your office after enquiry was made by Mr Z Ntsiko and Ms Lengisi
regarding their
migration, you in your capacity as Technical
Supervisor commented by allegedly saying the following to Mr Ntsiko :
‘You just
want money, money, money, you’re just like a
baboon’ knowing that such utterences are not tolerated at
Transnet.”
The Applicant denied the
allegation stated above and averred that he had used an Afrikaans
idiom (“
die bobbejaan die bult gaan haal – n
moesilkheid tegemoet loop; joe vreeslik kwel oor lest wat nog glad
nie eens gebeur het
nie
”) Meaning do not look for trouble
when it is not there. He stated that the idiom had been misunderstood
by both the employees
on 16 August 2016.
It was noted that the
Applicant had been issued with a Final Written Warning (valid from 10
November 2015 – 10 November 2016)
for serious misconduct in
relation to safety instructions to employees. It was further noted
that this warning expired the day
before the arbitration on 11
November 2016.”
[5]
From the record of the arbitration, the final written warning dealt
with “gross
unsafe instructions and actions” given to his
artisans. The charges for which Schrenk received the penalty were as
follows:
“
Gross unsafe
instructions and actions:
(a) That on 11
August 2015 you in your capacity as Technical Supervisor instructed
Ms Warrenay Menas, an apprentice,
to use the air grinder disk
and put it in the electric grinder knowing that it is unsafe to do
so.
(b) That on the
13
th
August 2015 at Workshop 17 you gave Conrad Makhaliva,
the artisan, an instruction to weld a nut onto the shaft and to turn
the
eyebolt into it knowing that it’s not standard procedure to
do so.
(c) That on the
14
th
August 2015 you in your capacity as Technical
Suprevisor instructed the two apprentices in your department to lift
up the gear
of the tippler drum gearbox in order to install the cones
of the bearing, know that they can injure their fingers, continuing
even
after you were informed by the trade hand, Mr Kosie Truter, that
it is unsafe for them to work like that.”
[6]
Shrenk was also charged for ‘Insolence’ in the same
hearing as follows:
“
a) improper
conduct that you in your capacity as Technical Supervisor used
obscene language towards Mr Kosie Truter which is a trade
hand under
your supervision regarding your artisan, Conrad Makhaliva, who is
also reporting to you. The instance in question was
when referring to
Conrad as a ‘vaak seun en p*es’ knowing that such
behaviour is unacceptable especially if you being
in a senior
position.
b) improper conduct that
you in your capacity as Technical Supervisor used obscene language
towards Mr Kosie Truter who is a trade
hand under your supervision
regarding Kenneth Miggel, saying the following : “He gaan
Workshop toe (Kennith) kom na Charl
dan gaan Plaai kom vir 3
maande. Naaie die ek hou nie van hom nie, he was n Trade Hand gewees
nou is hy n Ambagsman in my
oe sal he altyd n Trade Hand bly.”
[7]
There is no counter-application to review the Award in this matter.
Thus, the Court
must consider whether reinstatement should have been
the appropriate remedy in this matter, rather than the one month’s
compensation
awarded. The reasons for the remedy awarded are set out
in the following paragraphs of the Award:
“
Relief
75. In the absence of
sufficient material evidence of overt racism and degrading remarks to
a subordinate, I am obliged under the
circumstances to find the
dismissal substantively unfair in terms of section 188(1)(a)(i) of
the LRA. However, I am of the view
that the use of an Afrikaans idiom
by the Applicant with reference to baboons was highly inappropriate
under the circumstances
and certainly unworthy conduct of a trained
supervisor.
76. Turning to the
appropriate remedy, I am persuaded that there is sufficient material
evidence to show that the Applicant had
not changed his punative and
dehumanising approach to staff discipline despite his final written
warning and training. In the light
of his disrespectful treatment of
his staff and persistent complaints against him, I am persuaded that
it is not reasonably practicable
under the circumstances for the
employer to reinstate or re-employ the employee in terms of section
193(2) (c) of the LRA.
77. Due to the
Applicant’s 34 years of service and that it is the first time
he had been charged with racism and degrading
remarks to staff, I am
of the view that it is just and equitable under the circumstances for
him to be paid compensation equivalent
to one month’s salary.
It is noted that the Applicant would have accepted an early
retirement package to resolve the matter
prior to arbitration.
However, this was not agreed to by the company.”
[8]
The founding affidavit in this review submits that: “The
reasons advanced why
proper and compelling circumstances exist for
Schrenk not to be reinstated, are not sufficient in the circumstances
to justify
the determination that Schrenk should not have been
reinstated.” This is in essence the basis for the review.
[9]
The Arbitrator took into account the evidence at arbitration relating
to Schrenk’s
relationship with his subordinates in making the
decision that reinstatement was not reasonably practicable. That
evidence traversed
the need for him to be trained to deal with his
subordinates after grievances raised by his team in 2014, and a group
training
session from the Employees Assistance programme conducted to
restore the relations between Schrenk and his team. He received
training
on people’s management and stress management in 2015.
The charges previously brought against him, referred to above,
including
those that reflected that Schrenk referred to his
subordinates in derogatory, crude and insulting terms were handed in
during the
arbitration without objection from Schrenk or his
representative.
[10]
In these circumstances, the issue of whether reinstatement was
reasonably practicable needs consideration.
I note from the record of
the arbitration, Schrenk was asked by his representative about
reinstatement. The question and answer
are as follows:
“
MR WEWERS: If the
opportunity comes your way to be reinstated would you like to go back
to the team as a Supervisor or what would
you prefer to do?
APPLICANT: At the moment
I feel very betrayed. I do not what to say.”
[11]
In
National
Commissioner of the SA Police Service & another v Myers
[2]
, the LAC reiterated the meaning of ‘reinstatement’ as
articulated by the Constitutional Court in
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
& Arbitration & others
[3]
,
i.e. ‘to put the employee back into the same job or position he
or she occupied before the dismissal, on the same terms
and
conditions’. The Court stated that: “Equity Aviation
established the principle that where an employee is reinstated
by the
employer, he or she resumes employment on the same terms and
conditions that prevailed at the time of the dismissal of the
employee. This means that the employer does not conclude a new
contract when reinstating a dismissed employee. It merely restores
the employment relationship to what it was before the dismissal.”
[4]
[12]
It is the Court’s view that given the evidence before the
Arbitrator relating to the relationship
between Schrenck and his
team, as well as the statement of Schrenk himself referred to above,
the decision that reinstatement into
his job of Technical Supervisor
was not reasonably practicable, is not susceptible to review.
However, it is necessary to decide
whether the compensation awarded
should stand unchanged.
[13]
In
SA
Revenue Service v Commission for Conciliation, Mediation &
Arbitration & others
[5]
the Constitutional Court had this to say:
“
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:
. . .
(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.
(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.”
[14]
In this matter the dismissal of the applicant employee was found to
be substantively unfair,
but procedurally fair. The Arbitrators
finding that he was not guilty of the charge for which he was
dismissed has not been challenged.
However, the Arbitrator did voice
her view that by using the idiom that he did, his conduct was highly
unworthy and inappropriate.
The impact of such conduct on the
employer in view of its obligations to uphold the prescripts of
employment law’and the
Constitution, must be taken into
account. In addition, the very long service of Schrenk must be duly
considered. In the Court’s
view, the award of one month’s
compensation cannot be considered as a judicious exercise of
discretion. An award of six months
compensation is appropriate in all
the circumstances.
[15]
Neither party can be said to have been entirely successful in this
application and taking into
account that Schrenk is represented by
his union, I am not going to make a costs order in this matter. I
make the following order:
Order
1. The
decision of the Arbitrator under case number TCR010508 as to the
quantum to be awarded to Mr Audri Schrenk
for substantively unfair
dismissal is reviewed and set aside.
2.
Paragraphs 81 and 82 of the Award are substituted as followed:
2.1 The Third
Respondent is ordered to pay the Applicant monetary compensation
equivalent to six month’s pay at
his gross salary at the time
of his dismissal.
2.2 The payment
shall be made to the Applicant in full within one calendar month of
this order.
__________________
H
RABKIN-NAICKER
Judge
of the Labour Court of South Africa
Appearances
For the Applicant: W.
Hutchinson instructed by Fluxman’s Incorporated
For
the Third Respondent: C.Tsegarie instructed by Webber Wentzel
[1]
This
was awarded as one month’s gross salary
[2]
(2018) 39 ILJ 1965 (LAC)
[3]
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
& Arbitration & others 2009 (1) SA 390 (CC)
[4]
At
paragraph 52
[5]
(2017) 38 ILJ 97 (CC) at para 50