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[2019] ZALCPE 26
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Onelogix (Pty) Ltd v Meyer and Others (PR184/2018) [2019] ZALCPE 26 (3 December 2019)
the
labour court of South Africa, PORT ELIZABETH
judgment
CASE
NO: PR 184/2018
Of
interest to other Judges
In
the matter between
ONELOGIX
(PTY) LTD
Applicant
and
JOHANNES
WILLEM MEYER
First
Respondent
RIAAN
DE LANGE
N.O
Second Respondent
CCMA
Third Respondent
Application
heard: 31 October 2019
Judgment
delivered: 3 December 2019
JUDGMENT
VAN
NIEKERK J
[1]
On 25 October 2017, the first respondent (the employee) shared a
WhatsApp message
with some of his friends. The message comprised what
is referred to as a meme. It depicted a young (white) child, holding
a can
of beer, and smoking a cigar. The caption reads: ‘GROWING
UP IN THE 80’S BEFORE ALL YOU PUSSIES TOOK OVER – MAY
AS
WELL DIE YOUNG’. In error, the employee’s direct
supervisor was included in the group to whom the message was sent.
The supervisor (a black person) took offence and initiated
disciplinary proceedings against the employee. On 8 November 2017,
the employee was dismissed for forwarding a racially derogatory
WhatsApp communication with an offensive and racial undertone. The
employee challenged his dismissal in the CCMA, in an arbitration
hearing conducted by the second respondent (the arbitrator). The
arbitrator held that the employee was not guilty of the offence, that
his dismissal was unfair, and that he should be awarded compensation
equivalent to ten months’ remuneration. In these proceedings,
the applicant seeks to have that award reviewed and set aside.
[2]
The material facts are not in dispute. The applicant operates a
vehicle delivery service.
The employee was employed on 23 August
2011, and at the time of his dismissal, he was engaged as a long
distance truck driver.
In October 2017, the employee was issued with
a final written warning for using the “K” word, directing
it to another
road user. It would seem that the fact that the
employee used the word in a driver’s cab in which he was alone
(the event
had been captured on a drivecam device installed in the
cab) served as a mitigating factor. The incident that led to the
employee’s
dismissal occurred five days later.
[3]
At the disciplinary hearing, the following charge was put to the
employee:
Any act or omission that
seriously impairs the trust relationship between employer and
employee in that on 25 October 2017 (you)
forwarded a racial
derogatory WhatsApp communication to your direct Supervisor (fleet
Controller) which is furthermore offensive
with a racial undertone.
The chairperson (an
independent legal practitioner) concluded that the employee was aware
that his conduct was offensive, that he
had shown no remorse, and
that the conduct was not conducive to harmonious labour relations. As
I have indicated, on 8 November
2017, the employee was dismissed.
[4]
The arbitration proceedings under review were conducted over some
four days. In his
award, the arbitrator recorded that the issue for
decision was whether the employee’s dismissal was substantively
and procedurally
fair. The evidence given at the arbitration hearing
is summarised in the award. Mr Skweyiya, the employee’s
supervisor, testified
that he had initiated the prior disciplinary
proceedings against the employee. He had heard the “K word”
used by the
employee on the webcam monitor, and felt disappointed and
hurt given the prevalence of racism in South Africa. He also felt
inferior
as a human being and was extremely disappointed by the
incident. He approached his immediate superior, Van Rensburg, and
reported
the matter. A disciplinary hearing was convened in due
course when the employee was given a final written warning on the
basis
that the word was not uttered within earshot of the road user
to whom the epithet was directed. About two weeks after this
disciplinary
action, the incident that forms the subject of the
present proceedings occurred. Skweyiya received the meme from
the employee
and testified that when the employee returned from his
trip, he approached him but there was no apology forthcoming.
Skweyiya
testified further that he perceived the words ‘took
over’, as they are used in the meme, to mean the establishment
of a democratically-elected ANC government in 1994. He regarded the
word “pussies” as being derogatory in as much as
it
refers to female genitalia. The use of the word was degrading in his
culture, and disrespectful towards women. For Skweyiya,
the meme
sought to represent the 1980s as being better than the present
democratic order, and it was clear to him that the employee
was part
of a celebration of bad experiences of black people in South Africa,
and that the meme was indicative of the concept of
white supremacy.
Skweyiya testified further that the employee had expressed no
remorse, and that he could not envisage working
with the employee any
longer. He referred to an incident that he experienced during the
1980s when he had to hide from the authorities;
that experience
caused him to have bad memories of the 1980s. Further, during that
period, his uncle had disappeared. His uncle’s
remains were
reburied shortly before the second disciplinary hearing, which
resulted in him (Skweyiya) being overcome by emotion
and necessitated
an adjournment of the proceedings for a short while for him to
compose himself.
[5]
The applicant’s second witness, Mr Heyns, was the chair of the
disciplinary
hearing that culminated in the employee’s
dismissal. The hearing was held over two days. Heyns testified that
he considered
the evidence, found in the employee guilty of
misconduct that was the subject of the charge against him, and then
considered mitigating
or aggravating factors. He was not aware prior
to the hearing of the incident that had given rise to the final
written warning
previously issued to the employee. At the
disciplinary hearing, the employee testified that the message had
been sent to Skweyiya
in error. He later referred to the message
being sent consequent on a network error and yet later, said that he
could not explain
how the message had been sent to Skweyiya’s
cell phone. Heyns stated that the employee testified that once he
realised that
the message went through to Skweyiya, he went ‘yskoud’.
It was put to Heyns that the reason why the employee went ‘yskoud’
is because he knew that Skweyiya was a religious person who would be
offended by the language used in the meme – his feeling
‘yskoud’ had nothing to do with any racial connotation
that might attach to the meme. Heyns disputed this, and testified
that in his view, the reason why the employee became ‘yskoud’
was the employee’s realisation that he had sent
the meme to
Skweyiya, and his appreciation of its offensive content and racial
undertone. Insofar as the sanction of dismissal
is concerned, Heyns
testified that he considered all the evidence and concluded that the
trust relationship between the employee
and his employer had been
irreparably severed. He took into account Skweyiya’s evidence
that he could no longer see the way
open to continue a working
relationship with the employee and regarded the employee’s
conduct as being unconducive to harmonious
relations. Under
cross-examination, Heyns testified that he considered the meme within
the contextual framework of South Africa
and concluded that there
were racial undertones disguised in the message. Heyns disputed that
the meme had no racist connotation,
either directly or indirectly. In
his view, and his reasonable, objective finding, based on the
evidence before him, it was racist.
[6]
What is of some significance for present purposes is that under
cross-examination,
Heyns testfied that at the disciplinary hearing,
the employee had given no explanation as to the meaning of the meme.
He did not
testify that he regarded the meme as “generational”
and thus without any racial connotation – this is a defence
that emerged only at the stage of arbitration.
[7]
Mr Van Rensburg testified that he was the initiator of the
disciplinary action taken
against the employee. The respondent is 89%
black and, and prides itself on its progressive transformation
policies. The applicant
placed emphasis on values such as respect,
dignity and equity.
[8]
The employee testified that he had not intended to send the meme to
Skweyiya and that
when he realised his mistake, he sent a message
explaining his mistake and apologising. He further testified that he
telephoned
Skweyiya from his truck and that he apologised, which
apology was accepted. In regard to the present matter, he observed
the meme
as being one indicative of the 1980s generation of children,
of which he was part, and did not note any racial connotation to it.
He regarded the meme as racially neutral. At least one of the other
four recipients of the name was a person of colour and was
not
offended by the meme. He testified that once he realised that the
meme had been sent to Skweyiya, he knew that he would be
offended by
the inclusion of the word ‘pussies’.
[9]
In his analysis of the evidence and arguments, the arbitrator noted
that the employee
did not dispute that the meme had originated from
his cell phone and that it had been received by Skweyiya. He
contended however
that he had never intended to address the
message to Skweyiya and could not explain how the message had been
sent. Further, the
employee denied that the message was racially
derogatory, or that it had racial undertones. After referring to
Rustenburg Platinum Mine v SEAWA obo Bester and others
, the
arbitrator confirmed that the test is ‘
not based on how the
employer understood the words nor on the subjective feelings of the
person(s) to whom the remark was made,
but rather whether a
reasonable, objective and informed person would, on the correct
facts, perceive it to be so. Only once that
is established on the
evidence, the burden of proof shifts to the employee to prove the
existence of a ground of justification
and that the derogatory racist
remark was not made with the intent to demean.
’
[10]
The arbitrator went on to record that it was for the applicant to
prove, on a balance of probabilities,
that the employee was guilty of
the charge against him. After his analysis of the evidence, the
arbitrator came to the following
conclusion:
31.
The second incident [the sending of the meme] calls for inferences
and/or interpretation
of a meme which on the face of it is neutral
and, as the Applicant referred to it, generational in nature with no
express racial
words contained in it. The applicant was not the
author of the meme, but merely shared the picture which she observed
on Facebook
by the WhatsApp platform. He stated that they were (sic)
no racial connotation apparent to him to be observed in the meme at
the
time he shared it. He regarded it as an innocent joke.
32.
It was Mr Skweyiya, the reader thereof who apportioned a different
context and meaning to
the picture than what it would in the normal
course have had. The ordinary, grammatical meaning of the words
“
growing up in the 80’s”
needs not much
explanation in the context of the young boy in the picture. The
meaning which an ordinary, reasonable reader would
give to the words
was that you were a child during the 1980s growing up to adulthood.
The boy who holds a can of beer in his hand
and has a cigar in his
mouth denotes two habits which one would ordinarily come across an
older, more adult persons. In other words,
the boy was mature before
his age and did things that the men were doing. The boy wears no
shirt and, the picture as a whole, portrays
an image which is beyond
that which one reasonably would expect of a boy of that age. He comes
over as being “
tough
”.
33.
The words ‘
before
you pussies took over’
should
be read in the context of the picture as a whole to ascertain the
meaning thereof. The point of departure is that the children
of the
1980s have by now grown up to be adults. As was the case with the
1980s there are also children born subsequent to the 1980s.
The words
“
before
you pussies took over
”
should be viewed in this context with reference to the apparent
meaning of the meme to the ordinary, reasonable reader thereof.
It
was not in dispute between the parties that the meme originates from
the USA. In my view, given that the applicant was not the
author of
the meme, the real meaning of the word ‘pussies should be
sought within the USA’s use of the English word.
The website
https://en.wikipedia.org/wiki/Puss/
’
in detail describes the connotations and meanings of the said word.
In short, the word may mean “cat”, “female
genitalia” or “weakness”. In the context of the
meme, the only reasonable meaning which can be apportioned to
the
word “pussies” as it appears in the meme is that of
“weakness”….
Considering
the meme holistically, the apparent meaning thereof is that, in
retrospect today, the children of the 1980s are tougher
than the
generation thereafter who are weaklings but nonetheless succeeded the
generation of the 1980s as children in time. In
my view, te ordinary,
reasonable reader, not concerned with race, colour or creed, would
acceot the meaning outlined in this paragraph
as the intended meaning
of the meme
(own emphasis)…
36.
Based on the above considerations are found that the applicant was
not guilty of the charge
which is levelled against it. I find that Mr
Skweyiya was overly sensitive in his reading and understanding of the
meme when it
was mistakenly sent to his cell phone by the applicant.
The reasonable reader informed of all the correct facts would have
understood
the meme to be generational in nature and not having any
racial undertones. The respondent correctly found the applicant
guilty
of a similar offence with reference to the first incident.
However, it does not follow axiomatically that because the applicant
was guilty of the “K-word” incident he should also be
found guilty in respect of the second incident. Skweyiya regarded
the
applicant as a racist due to him having used the “K-word”
and thus subjectively considered the meme which he received
by
mistake as being racially directed towards him. However, the
available evidence in this matter does not support his view in
that
regard, with reference to the meme. The applicant never intended for
him to receive the message and the meme itself contains
no racial
derogatory or just derogatory utterances. The applicant’s
dismissal was substantively unfair as the applicant was
not guilty of
the charge levelled against him.
[11]
As I have indicated, the arbitrator went on to board the employee
compensation in an amount equivalent
to 10 months’
remuneration.
[12]
The applicant contends that the arbitrator misconstrued the nature of
the dispute that he was
called upon to determine. Apart from the
WhatsApp communication being racially derogatory, it was further
alleged in the charge
against the employee that it was ‘offensive
with a racial undertone’. Thus, the applicant submits that the
arbitrator
acted unreasonably in dealing with the dispute before him
by focusing solely on whether the meme objectively viewed, was racist
or not. Had he had proper regard to the true nature of the enquiry
before him, the applicant submits that the arbitrator would
have
concluded that the employee’s dismissal was substantively fair.
Secondly, the applicant submits that the arbitrator
gave the employee
the benefit of an unarticulated defence not supported by the
evidence, and that his finding as to how a reasonable
reader would
view the ordinary meaning of the meme, is predicated entirely on his
own dissection of the meme and his own interpretation
of it,
unsupported by any evidence. Thirdly, the applicant submits that the
arbitrator committed a material error of law in finding
that evidence
relating to the employee’s final warning was inadmissible.
Fourthly, the applicant submits that the arbitrator
reached
contradictory conclusions which rendered the logical and the outcome
unreasonable.
[13]
The test to be applied is one that recognises and reinforces the
distinction between a review
and an appeal. This court is entitled to
intervene if and only if the arbitrator’s decision is one that
falls outside of
a band of decisions to which a reasonable
decision-maker could come on the available material. In
Head of
Department of Education v Mofokeng & others
[2015] 1 BLLR 50
(LAC)
,
the LAC said the following:
[30]
The failure by an arbitrator to apply his or her mind to issues which
are material to the determination of a case will usually
be an
irregularity. However, the Supreme Court of Appeal (“the SCA”)
in
Herholdt v Nedbank Ltd
and this court in
Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others
have held that before such an irregularity will result in the setting
aside of the award, it must in addition reveal a misconception
of the
true enquiry or result in an unreasonable outcome…
[32]
…Mere errors of fact or law may not be enough to vitiate the
award. Something more is required. To repeat: flaws in
the reasoning
of the arbitrator, evidenced in the failure to apply the mind,
reliance on irrelevant considerations or the ignoring
of material
factors etc. must be assessed with the purpose of establishing
whether the arbitrator has undertaken the wrong enquiry,
undertaken
the enquiry in the wrong manner or arrived at an unreasonable result.
Lapses in lawfulness, latent or patent irregularities
and instances
of dialectical unreasonableness should be of such an order
(singularly or cumulatively) as to result in a misconceived
inquiry
or a decision which no reasonable decision-maker could reach on all
the material that was before him or her.
[33]
Irregularities or errors in relation to the facts or issues,
therefore, may or may not produce
an unreasonable outcome or provide
a compelling indication that the arbitrator misconceived the inquiry.
In the final analysis,
it will depend on the materiality of the error
or irregularity and its relation to the result. Whether the
irregularity or error
is material must be assessed and determined
with reference to the distorting effect it may or may not have had
upon the arbitrator’s
conception of the inquiry, the
delimitation of the issues to be determined and the ultimate outcome.
If but for an error or irregularity
a different outcome would have
resulted, it will
ex hypothesi
be material to the determination of the dispute. A material error of
this order would point to at least a
prima
facie
unreasonable result. The
reviewing judge must then have regard to the general nature of the
decision in issue; the range of relevant
factors informing the
decision; the nature of the competing interests impacted upon by the
decision; and then ask whether a reasonable
equilibrium has been
struck in accordance with the objects of the LRA. Provided the right
question was asked and answered by the
arbitrator, a wrong answer
will not necessarily be unreasonable. By the same token, if an
irregularity or error material to the
determination of the dispute
may constitute a misconception of the nature of the enquiry so as to
lead to no fair trial of the
issues, with the result that the award
may be set aside on that ground alone. The arbitrator however must be
shown to have diverted
from the correct path in the conduct of the
arbitration and as a result failed to address the question raised for
determination.
[14]
In
Rustenburg Platinum Mine v SA Equity Workers Association obo
Bester & others
(2018) 39
ILJ
1503 (CC), the
Constitutional Court had occasion to consider the issue of race
descriptors that on the face of it are neutral but
which may be
regarded as racially abusive or insulting. The court said the
following regarding the context in which the words (in
that case,
‘swart man’) were uttered:
[38]
It is accepted by both parties (the applicant and first respondent)
that the use of the words
‘swart man’, per se, is not
racist and that in the context in which the words were used to
dictate whether they were
used in a racist derogatory manner. It was
also accepted that the test to determine whether these differences
racist is an objective
– whether a reasonable, objective and
informed person, on hearing the words, would perceive them to be
racist derogatory…
[15]
This passage is quoted by the arbitrator, and appears to be relied on
by the arbitrator in his
determination that Skweyiya was ‘overly
sensitive’ in his reading and understanding of the meme, and
that a ‘reasonable
reader’ informed of all the ‘correct
facts’ would not have understood the meme to have any racial
overtones.
But what the arbitrator ignored was the caution expressed
by the Constitutional Court in
Bester
against a presumption of
neutrality. The court stated:
[48]
The Labour Appeal Court’s starting point that phrases are
presumptively neutral fails to
recognise the impact of the legacy of
apartheid and racial segregation that has left us with a racially
charged present. This approach
holds the danger that the dominant,
racist view of the past – of what is neutral, normal and
acceptable – might be
used as the starting point in the
objective enquiry without recognising that the root of this view
skews such enquiry. It cannot
be correct to ignore the reality of our
past of institutionally entrenched racism and begin an enquiry into
whether or not a statement
is racist and derogatory from a
presumption that the context is neutral – our societal and
historical context dictates the
contrary. In this sense, the Labour
Appeal Court’s decision sanitised the context in which the
phrase ’swart man’
was used, assuming that it would be
neutral without considering how, as a starting point, one may
consider the use of racial descriptors
in the post-apartheid South
Africa….
[49
The Labour Appeal Court, by sanitising the context in which the words
were used, incorrectly
applied the test to determine whether the
words used are derogatory, in the context of this matter, to the
facts in this matter.
The Labour Appeal Court, as well as the
commissioner, failed to approach the disputed and impartial manner
taking into account
the ‘totality of the circumstances’.
Not only was ‘swart man’ as used here racially loaded,
and hence
derogatorily subordinating, but it was unreasonable to
conclude otherwise. It was unreasonable for the commissioner, within
this
context, to find that using ‘swart man’ was racially
innocuous ‘’.
[16]
In other words, communications that on the face of it appear neutral
or innocuous are not always
so, and neutrality should not be the
starting point in the analysis of any communication that is the
subject of scrutiny for racist
or other derogatory content. In his
analysis of the evidence, the arbitrator clearly applied a
presumption of neutrality, and then
proceeded to accord a meaning to
the meme divorced from context, and informed by his own lights. In
essence, his reasoning amounts
to this:
a. the
meme is on the face if it neutral, it being ‘generational’
in nature with no express references
to race;
b. the
ordinary grammatical meaning of the words ‘growing up in the
80s’ in the context of a picture
depicting a child smoking a
cigar and holding a beer was one depicted a generation that grew up
in the 1980s as tough;
c. the
words ‘before you pussies took over’ had to be construed
in the context of the meaning attributed
to the word ‘pussy’
in the USA. This connoted ‘weakness’;
d. the
meaning to be attributed to the meme is that the children of the
1980’s are tougher than children
of the current generation, who
are weak;
e. in
the absence of any reference to race or any of the racial undertones
that formed the subject of Skweyiya’s
evidence and his
subjective interpretation of the meme, a reasonable reader would
interpret the meme as free of any racial undertone
or connotation and
see it as no more than a comment on the current generation of
children and their predecessors.
[17]
In my view, the arbitrator committed an error of law by applying a
presumption of neutrality.
In doing so, he ignored the caution
expressed in
Bester
that it cannot be correct to ignore the
reality of our past and our racially-charged present and to proceed
form a presumption of
neutrality. Put another way, as the
Constitutional Court observed, the context in which words or
communications are uttered should
not be sanitised by a presumption
of neutrality - the totality of all the circumstances must
necessarily be taken into account
to determine whether a
communication that on the face of it appears neutral is in fact
derogatory.
[18]
In the present instance, the context is one in which the employee had
been found guilty, only
five days prior to the incident that gave
rise to his dismissal, of using racist and derogatory language. The
meme that he sent
may have been inadvertently sent to Skweyiya, but
that does not impact on the nature of the meme or any derogatory
connotation
that it might have. The fact remains that the meme was
sent by the employee to Skweyiya, who took great offence at its
content.
This is not to say that Skweyiya’s subjective reading
of the meme as racially derogatory is determinative – but the
fact remains that the context in which the meme was sent is one of a
past of institutionally entrenched racism and in which an
employer
had taken steps to ensure, as Van Rensburg put it in his evidence, a
workplace in which the values of respect, dignity
and equity were
present. The arbitrator compounded the error of a presumption of
neutrality in his exposition of the meaning of
the meme. In doing so,
he afforded the employee an unarticulated defence, which until the
arbitration hearing, had not been one
of a benign meaning that he
attached to the meme. It should be recalled that Heyns’s
uncontroverted evidence was that at
the disciplinary hearing, no
mention was made by the employee of any ‘generational’
interpretation of the meme –
this defence emerged only at the
arbitration hearing.
[19]
The arbitrator’s conclusion that the meme depicted a
representation of a ‘tough’
generation being compared to
the current (younger) generation that is weak in comparison, is an
exegesis of his own. It may have
some validity in the United States
of America (where the meme originated and where the arbitrator’s
explication is rooted),
but that is not the context in which the meme
was either sent or received. In a South African context, given this
country’s
history and the notion that prevailed in the 1980s
that some are inherently superior to others, the reasonable reader
would read
a racial undertone into the meme. The words ‘growing
up in the 1980s before all you pussies took over’ have a clear
connotation of a comparison between the era of apartheid and the
advent of the era of democracy in 1994, and also a suggestion
both
that the era of apartheid was a heyday and that those who assumed
power in 1994, i.e. black people, are ‘pussies’
(a
derogatory term whatever its etymology). This was the meaning
attributed by Heyns to the meme when he decided that the employee
should be dismissed and in the context, it is a conclusion to which
any reasonable, informed and objective South African would
come. In
my judgment, and in relation to the charge of misconduct against him,
the meme sent by the employee had a racial undertone
and was
offensive.
[20]
In so far as the employee’s justification is concerned, it
should be recalled that the
employee stated that he did not intend to
forward the meme to Skweyiya. His explanations were less than
consistent. In short, the
employee was unable to proffer a plausible
explanation for how the meme came to be sent to Skweyiya. But even if
he had, this does
not serve to exculpate the employee. The fact of
the matter is that the meme was sent. While there may have been no
specific intention
on the employee’s part to have sent the meme
to Skweyiya, he did. In doing so, the employee violated a workplace
rule that
required him to respect the values of dignity and equality
that underpin the applicant’s value system and it rules of
employee
conduct. Indeed, Ms Charoux, who appeared for the employee,
conceded that if the meme was found to be racist, the employee’s
dismissal was justified. In these circumstances, no more need be said
about any justification for the employee’s conduct.
It is clear
from Skweyiya’s evidence that a continued employment
relationship between the applicant and the employee is not
possible.
That fact, weighed with the gravity of the employee’s
misconduct and his prior final written warning, warrant the
sanction
of dismissal.
[21]
The arbitrator’s error of law is material, and had a distorting
effect on the outcome of
the proceedings before him. The arbitrator’s
award is on that account
prima facie
unreasonable. There is
nothing in the record to indicate that the award can nonetheless be
salvaged, on the basis that it falls
within a band of decisions to
which a reasonable decision-maker could come on the evidence.
[22]
For the above reasons, the arbitrator’s award stands to be
reviewed and set aside. There
is little point in remitting the matter
to the CCMA for rehearing – the record is complete and
remission would serve little
purpose but to occasion a further delay
in the finalisation of this matter.
[23]
In terms of s 162 of the LRA, the court has a broad discretion to
make orders for costs according
to the requirements of the law and
fairness. In
Long v South African Breweries
2019 (5) BCLR 609
(CC), the Constitutional Court affirmed the approach to the exercise
of that discretion:
[27]
It is well accepted that in labour matters, the general principle
that costs follow the result
does not apply…This principle is
based on section 162 of the LRA, which reads:
(1) The Labour Court may
make an order for the payment of costs, according to the requirements
of the law and fairness.
(2) When deciding whether
or not to order the payment of costs, the Labour Court may take into
account—
(a) whether the matter
referred to the Court ought to have been referred to arbitration in
terms of this Act and, if so, the extra
costs incurred in referring
the matter to the Court; and
(b) the conduct of the
parties—
(i) in proceeding
with or defending the matter before the Court; and
(ii) during the
proceedings before the
Court.”
[28]
The relationship between the general principle of costs and section
162 was considered and settled
by this Court in
Zungu
:
“
In this matter,
there is nothing on the record indicating why the Labour Court and
Labour Appeal Court awarded costs against the
applicant.
Neither court gave reasons for doing so. It seems that both
courts simply followed the rule that costs follow
the result.
This is not correct…”
[24]
This court is ordinarily reluctant to make orders for costs against
individual employees, for whom the prospect
of an adverse costs order
may serve to inhibit the exercise of what they perceive as their
rights. Although this is not an immutable
rule, it seems to me that
in the present instance the requirements of the law and fairness are
best served by each party bearing
its own costs. The employee remains
unemployed, and the prospect of any costs order being satisfied in is
any event remote.
I
make the following order:
1. The
arbitration award issued by the respondent is reviewed and set aside.
2. The
award is substituted by the following:
‘
The referral is
dismissed’.
André
van Niekerk
Judge
APPEARANCES
For
the applicant: Adv. I Lamprechts, instructed by Cliffe Dekker Hofmeyr
Inc.
For
the first respondent: Adv L Charoux, instructed by MJ Boyens Attorney