About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2020
>>
[2020] ZALCJHB 108
|
|
Tanker Services Food and Chemicals a Division of Imperial Group v AMCU obo Hadebe and Others (JR596/17) [2020] ZALCJHB 108 (25 June 2020)
THE
LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Not
Reportable
Case
no:
JR596/17
In
the matter between:
TANKER SERVICES FOOD
AND CHEMICALS
A
DIVISION OF IMPERIAL
GROUP
Applicant
and
AMCU
OBO BHEKI HADEBE
First
Respondent
NANCY
KEKANA
N.O
Second
Respondent
NATIONAL
BARGANING COUNCIL FOR THE
ROAD
FREIGHT AND LOGISTICS INDUSTRY
Third
Respondent
Decided:
06 February 2020
Delivered:
This judgment was handed down electronically by circulation to the
parties' legal representatives
by email, publication on the Labour
Court’s website and released to SAFLII. The date and time for
hand-down is deemed to
be 10h00 on 25 June 2020.
Summary:
Review application – count 1- a shop steward employee on
suspension arrived at work and addressed employees –
whether he
incited employees to an unprovoked work stoppage –
circumstantial evidence relied upon by employer – direct
evidence of employee probable – count 2 – use of
profanities at work place not permissible – has nuance of
gender
discrimination – misconduct serious – dismissal
fair
.
JUDGMENT
CELE,
J
Introduction
[1]
This
is an application in terms of section 158 (1) (g) of the Labour
Relations Act
[1]
,
to review and set aside an arbitration award issued in this matter by
the commissioner on 17 February 2017, acting as a commissioner
of the
third respondent. The commissioner found that Mr Hadebe’s
member, Mr Bheki Hadebe’s dismissal by the applicant
was
procedurally fair but substantively unfair. She ordered the applicant
to re-instate Mr Hadebe without back pay.
[2]
The first respondent acted on behalf of its member to oppose the
review applicant.
After the matter had been fully argued in court,
the first respondent filed a notice of withdrawal of its
representation for Mr
Hadebe. This was clearly a belated attempt to
withdraw from the matter. No grounds for such a late withdrawal were
outlined. The
trade union is the cited party in these proceedings.
Its withdrawal without a simultaneous application to substitute it
with another
person, if accepted could mean there is no opposition to
the review application. As already indicated, it is a belated attempt
when the matter has been fully argued and is accordingly of no legal
effect.
Factual Background
[3]
The applicant is a Tanker Services Food and Chemicals, a division of
Imperial Group
Ltd, which is a company duly incorporated in terms of
the company laws of the Republic of South Africa. Mr Hadebe is a
registered
trade union, established in terms of the LRA, appearing on
behalf of its member, Mr Hadebe, the erstwhile employee of the
applicant.
[4]
The applicant employed Mr Hadebe
as a Bulk
Vehicle Operator, or Truck Driver. The applicant transports a variety
of food and chemical products for its customers.
Its bulk vehicles
are washed at a washbay designed to avoid cross contamination. The
trucks take turns to go through the washing
process. The washbay
played a very important role in the logistics business of the
applicant.
[5]
On 7 April 2016, the applicant transferred its washbay operation as a
going concern,
in terms of section 197 of the LRA, to Rheinichem.
Employees of the applicant working at the washbay became concerned
about the
transfer of the business, as it affected them directly. Up
to 11April 2017, Mr Hadebe was at home in Durban or at his
Johannesburg
residence, on suspension due to some prior misconduct,
awaiting a decision of the applicant on him. Other employees who had
been
on similar suspension were called back to work.
[6]
On 11 April 2017, Mr Hadebe arrived at the washbay of the applicant
and went to address
the washbay employees for a period of about 45
minutes, resulting in the trucks not being attended to. This incident
was reported
to management. Mr Petros Tsotetsi who was the washbay
Manager was at the area to do the handover of the washbay to Mr
Stefan Oosthuizen,
Director of Rheinichem. Mr Tsotetsi overheard Mr
Hadebe address the employees gathered at the bay. He then instructed
the washbay
Supervisor, Mr Bongani Ntuli to tell the group of
employees to go back to their working station. These employees were
about 5 to
7 and had been seated in a U shape formation, listening to
Mr Hadebe. This took place from about 10h30 to 11h00. The employees
refused to go back to work.
[7]
Mr Tsotetsi reported the reaction of the employees namely, failure to
return to the
working station, to the Divisional Human Resources (HR)
Director of the applicant, Mr Lucky Kolobe. By that time, Mr Kolobe
had
already received a message about these employees and Mr Hadebe
from the HR Manager of the applicant, Ms Elizabeth Radebe and from
Mr
Oosthuizen.
[8]
Mr Kolobe then telephonically contacted Mr Hadebe, enquiring if it
was true that Mr
Hadebe was holding a meeting with employees during
working time. Mr Hadebe asked who it was that told Mr Kolobe about
the ongoing
meeting. Mr Kolobe wanted Mr Hadebe to confirm or deny if
he was indeed holding a meeting with the washbay employees. Mr Hadebe
advised Mr Tsotetsi to go and tell the one who told him about the
meeting that “
unina loyo obambe I meeting.
” Which
if translated to English means “
It is his mother who is
holding a meeting.
” This expression is of high
obscene language, carrying derogatory insulting message.
[9]
Mr Kolobe requested Mr Hadebe not to use such words and asked Mr
Hadebe to withdraw
them. Mr Hadebe refused to withdraw the statement.
The refusal was repeated even after Mr Kolobe had told Mr Hadebe that
Mr Tsotetsi
had made a report. Instead, Mr Hadebe repeated the
statement directing it to Mr Tsotetsi. Mr Kolobe passed the statement
of Mr Hadebe to Mr Tsotetsi. Mr Tsotetsi was very much disturbed by
the comment because it was reference to his mother. He felt
humiliated, disrespected and verbally abused. Mr Hadebe did not
subsequently apologize or withdraw those comments until the end
of
the disciplinary hearing, when giving evidence in mitigation. After
Mr Kolobe had contacted Mr Hadebe, the washbay employees
started
going back to their workstation although slowly and one at a time.
The second group of washbay employees were also not
working when Mr
Hadebe was holding a meeting with the other group. Just about 20
trucks were lining up for a wash and there was
a delay causing
pressure from operation as trucks were delaying the loads of
customers.
[10]
The applicant charged Mr Hadebe with and found him guilty of
misconduct, which it described as:-
"You
instigated and incited an unprovoked/unscheduled work stoppage at the
depot washbay operations in Germiston now managed
by Rheinichem on
the 11
th
April 2016. You used inappropriate, vulgar and disrespectful comments
when on a Telephonic discussion with one of the Directors
of the
business. You made derogatory comments against or directed at Tanker
Services and its management.
"
[11]
Mr Hadebe was dismissed. He referred an unfair dismissal dispute for
conciliation and when it
could not be resolved, he referred the
dispute to arbitration, challenging both procedural and substantive
unfairness. On procedural
fairness, he said that the internal
chairperson was bias and had a mandate to dismiss him. On substantive
fairness, he said that
he did not breach any rules relating to the
charges preferred against him, as he had done nothing wrong. The
commissioner found
dismissal to have been procedurally fair but
substantively unfair. She ordered the applicant to re-instate Mr
Hadebe with retrospective
effect from the date of dismissal but
without back pay.
Chief findings of the
commissioner
[12]
In considering the first count of misconduct the commissioner
examined various issues, which
are:
Whether there was a
meeting on 11 April 2016;
Whether the meeting was
pre planned;
Whether the meeting was
during working hours;
Whether there was a work
stoppage and
Whether Mr Hadebe incited
employees to embark in a work stoppage.
[13]
The commissioner found that there were contradictions, paucity of
evidence and inconsistencies
in the evidence of the applicant. The
commissioner found it common cause that Mr Hadebe arrived at the
washbay to find employees
congregating and seated under a tree. He
greeted them. It was probable that he stopped to talk to the
employees because he was
passing next to them and he could not pass
without greeting and talking to them. He heard their concerns about
the transfer of
business and learnt that they were confused about
that issue. The applicant was requested to take photographs of the
meeting but
failed to do so. As a senior shop steward, he undertook
to investigate their concerns and to later report to them. There was
no
evidence that the applicant issued an instruction to the employees
to get back to work and that the instruction was ignored. The
applicant failed to charge all employees for not complying with its
instruction. The evidence was not satisfactory that Mr Hadebe
incited
4 to 5 employees at a washbay, which is comprised of 15 employees. In
alleging that the whole washbay was not in operation,
it was not
clarified as to what happened to the other 10 employees. The versions
of both parties were found probable. The applicant
was found to have
failed to discharge the onus resting on it.
[14]
In considering the second count, the commissioner said that Mr Hadebe
admitted using the words
“unina lowo” towards his senior
and he was asked to withdraw three times and he refused. She said it
was applicant’s
evidence that if Mr Hadebe had withdrawn the
words, the matter would have not been taken further. He was found
guilty because he
had not shown remorse. She found that it was not
appropriate to use that language at the work place, even though Mr
Hadebe alleged
that it was the language that they normally used at
the company. She found that Mr Hadebe had shown remorse because he
did withdraw
the words at the disciplinary hearing. She found the
applicant to have been too harsh in dismissing Mr Hadebe for the
alleged offence.
She recommended that Mr Hadebe be given a final
written warning. The commissioner concluded the enquiry by saying:
“
Considering
the above circumstances, I find that the respondent was harsh in
dismissing the employee. I find that the dismissal
was not an
appropriate sanction to this offence, in view of the foregoing. I
conclude that the respondent was not able to prove,
on a balance of
probabilities that the applicant has committed an alleged misconduct
but the dismissal of the applicant was substantively
unfair because
the sanction imposed was too harsh.
”
Grounds for Review
[15]
The applicant identified four scenarios as grounds for review. The
submission is that the commissioner
committed misconduct in relation
to her duties, committed gross irregularities in the conduct of
arbitration proceedings and exceeded
her powers. In amplification, it
was said the commissioner failed to consider whether reinstatement
was an appropriate result,
considering the seriousness of the
misconduct and breakdown in the trust relationship. It was submitted
that the commissioner failed
to consider that the allegations against
the Mr Hadebe referred to in charge 2, constituted serious
misconduct, which on their
own would justify his dismissal. The issue
of whether he had shown remorse or not was another aggravating
factor. In arriving at
the conclusion that the Mr Hadebe was
remorseful, the commissioner failed to apply her mind to the evidence
that:
After making the
statement, the Mr Hadebe was given an opportunity to withdraw the
statement three times. He refused to do so. He
only apologised at the
end of the disciplinary hearing.
Throughout the
arbitration proceedings, Mr Hadebe maintained that he did nothing
wrong. He continuously sought to justify his conduct
by stating that
this was the language used at the workplace;
Mr Tsotetsi testified
that Mr Hadebe will never apologise to him and even after he greeted
Mr Hadebe, Mr Hadebe responded by stating
that he is not so bored to
exchange greetings with him.
The nature and
circumstances of Mr Hadebe's misconduct, led to the Applicant's
witnesses testifying that the employment relationship
between the
parties was broken and could not be repaired.
There is no indication
that the commissioner considered the impact of Mr Hadebe's misconduct
on the employment relationship or had
regard to any of the
aforementioned aggravating factors.
[16]
In finding Mr Hadebe not guilty of charge 1, the commissioner failed
to have regard to all the
evidence and to correctly determine the
probabilities. It was submitted that in order to prove that Mr Hadebe
was guilty of this
charge, the applicant had to demonstrate that
there was a work stoppage, which, was not authorised. Mr Hadebe
caused or contributed
to the work stoppage. The Applicant had proved
its case on a balance of probabilities. The totality of the evidence
led demonstrated
that Mr Hadebe's conduct in arriving at the
workplace and addressing the employees on the section 197 transfer
(without any basis
to do so) caused and/or contributed to a group of
employees refusing to perform their duties.
[17]
One has to consider that “inciter” may refer to the
approach to the other's mind
which may take various forms such as
suggestion, proposal, request, exhortation, gesture, argument,
persuasion, inducement, goading,
or the arousal of cupidity. The list
is not exhaustive. It was submitted that the aforementioned
definition of “inciter”
(and hence incitement) was
persuasive and Mr Hadebe's conduct fell squarely within this
definition. Regardless of the technical
wording of the charge sheet
such as "instigating" or "inciting" what must be
considered is the effect of Mr
Hadebe's conduct, that is, it caused a
work stoppage. Prior to Mr Hadebe’s arrival there was no work
stoppage. The work stoppage
coincided with Mr Hadebe's arrival. On
the day of the incident, Mr Hadebe was not even supposed to have been
at work. There was
no reason for him to drive all the way from Kwa
Zulu Natal to Johannesburg simply to enquire about when his shift
would be commencing.
In this regard, the commissioner accepted that
he drove all the way from Durban. This is highly unlikely that Mr
Hadebe would drive
all the way from Durban to the office considering
that Mr Hadebe was at home for more than 3 months whilst being paid a
salary.
He had various options to enquire about his shifts whilst at
home.
[18]
The commissioner's finding that the probabilities favoured Mr Hadebe
driving from Durban to Johannesburg
to enquire about his shift
completely ignored the evidence as a whole that this was the day
scheduled for the handover of the business
to Rheinichem. There was
no reason for Mr Hadebe to be in the washbay area, if his purpose was
to enquire about his work-related
issues, he would have proceeded
directly to the operations department. Mr Hadebe admits that he had a
meeting. Evidence was led
that Mr Hadebe came to the washbay
specifically to meet with the washbay employees regarding the
transfer. It is not merely coincidental
that Mr Hadebe selected this
particular day to arrive at the washbay and address employees neither
is it coincidental that the
following day saw the commencement of an
unprotected strike, which lasted for three days. The aforementioned
findings meant that
the commissioner committed a number of material
mistakes of fact, which render the outcome of the award unreasonable.
[19]
The commissioner is said to have reached conclusions not supported by
the evidence before her.
The commissioner arrived at the conclusion
that the Applicant acted inconsistently because it failed to
discipline the employees
who attended the meeting, yet only
disciplined Mr Hadebe. This conclusion, by submission, is absurd
considering that Rheinichem
and not the Applicant employed the
employees who attended the meeting; the commissioner accepted that
the transfer of the business
in terms of section 197 of the LRA had
already taken place on the 07 April 2016. It would therefore not have
been possible for
the Applicant to discipline the employees of
Rheinichem, Due to her flawed reasoning concerning the Applicant's
failure to discipline
the employees attending the meeting, she
rejected the Applicant's version that the whole wash bay was not in
operation as improbable.
She further erred in finding that Mr Ntuli
had to lead evidence to support that the instruction was given and
employees ignored
it. Two witnesses testified that the instruction
was given and the employees refused. Mr Hadebe himself testified that
Mr Kolobe
had enquired from him why the washbay was not operating.
Evidence was led that more than seven individuals participated in a
work
stoppage, which, would not have been necessary if the employees
simply returned to work when requested to do so or if the washbay
was
not operational and there was no work for them to do. It was
submitted that the commissioner erred in finding that Mr Hadebe
had
acted as a reasonable shop steward by advising employees that the
issue of the transfer was not finalised, after she had already
concluded in paragraph 20 of her award that it was common cause that
there was a transfer of the business in terms of section 197
of the
LRA. It therefore, should have been apparent to her that Mr Hadebe's
advice that the transfer was not yet finalised could
not have been
reasonable in the circumstances.
[20]
The commissioner is said to have failed to properly assess the
credibility of the witnesses thus
rejecting the testimony of
witnesses on improper and unjustifiable grounds, in paragraph 19 of
the award the commissioner found
that:
"The Applicant told
Lucky Kolobe to instruct those people who witness the meeting to take
photos and he did not. There were
contradictions of time period to
witnesses as to how long the meeting lasted...! find that there was
no evidence that there was
not material evidence to support that
there was a meeting at the company."
[21]
It was submitted that the aforesaid conclusion defied logic. The
Applicant was not required to
take photos of the meeting in order to
prove the existence of a meeting. The standard of proof is on a
balance of probabilities.
Mr Hadebe confirmed that upon his arrival
he "met" three to four employees'’ There were no
material discrepancies
in the evidence of the witnesses regarding the
duration of the meeting. The witnesses were consistent that the
meeting endured
for more than 30 minutes. The commissioner's finding
that the time that Mr Hadebe visited the washbay might be on a tea
break was
completely at odds with the version of witnesses of Mr
Hadebe, Messrs Komani and Mfuniseni Khumalo that they were sitting
under
the tree because there was a breakdown. The commissioner failed
to apply her mind to these inconsistent versions,
First Respondent’s
submissions
[22]
The first respondent submitted that there were no defects in the
arbitration proceeding in question.
The commissioner properly asses
the evidence and arrived at an award that a reasonable Commissioner
with the same facts and evidence
would have arrived at. The
commissioner considered that the language that was used by Mr Hadebe
was not appropriate even after
Mr Hadebe stated that it is the
language that he usually uses with Tsotetsi. It is denied that the
Commissioner substituted the
decision of the Applicant with her own.
The Commissioner stated that the sanction imposed by the Applicant
was harsh and recommended
a final written warning. She did not direct
the company to issue Mr Hadebe with a final written warning. She
merely recommended
a sanction that was less harsh. Secondly, it was
further denied that there were contradictions in the Commissioner’s
award.
The Applicant only wanted to be overly technical. What the
Commissioner was saying was that, the Applicant could not prove that
he held a meeting without authorization. The whole award suggested
that. She stated in paragraph 19 of the award that she found
that
there was no material evidence to support the allegation that there
was a meeting at the company. That obviously means that
the Applicant
failed to prove its case on Charge 1. However as stated above, on
charge 2, the Commissioner found that Mr Hadebe
should not have used
those words however, the sanction was harsh because Mr Hadebe had in
fact apologised.
[23]
The further submission was that the Commissioner considered the
seriousness of the misconduct
and the trust relationship between the
parties and arrived at a reasonable conclusion that reinstatement was
appropriate. The commissioner
had regard to all the evidence that was
before her and arrived at a reasonable conclusion that Mr Hadebe was
not guilty of charge
1.
[24]
It was the evidence of Mr Hadebe that when he arrived at the
company’s premises he found
that there were about 3 or 4
employees that were seated near the car park. Mr Komani, who stated
that the employees were sitting
where they normally sat when they
were waiting for the trucks to dispatch, corroborated this evidence.
Therefore, when Mr Hadebe
arrived, the employees he is alleged to
have had a meeting with and caused an unauthorized work stoppage were
not at their workstations
working. Which then begged the question,
how it is that the work stoppage was attributed to Mr Hadebe. The
Applicant expected Mr
Hadebe to just pass his colleagues that he had
not seen in four months, without greeting and talking to them. He
testified that
he chatted to them and even said to them, after they
raised their concerns about the s197 transfer that they should
continue working
as there is still going to be a meeting regarding
the transfer in the coming weeks.
[25]
Mr Hadebe did not cause or contribute to the alleged work stoppage
because when he arrived he
found the employees seated. The
Commissioner correctly stated that the Applicant simply could not
explain how Mr Hadebe caused
a work stoppage by having a meeting with
5 employees. A meeting with 5 employees could not have contributed to
the whole washbay
not doing their jobs. It was also Mr Khumalo’s
evidence that he was working on the day and he in fact was on his way
to certify
his truck when he met with Mr Hadebe. Mr Komani also
testified that it was only one washbay that was not operational.
Further,
Mr Hadebe testified why he was at the Applicant’s
premises on that day and it was not to instigate a meeting as
suggested
by the Applicant. The Applicant’s evidence relating
to the fact that Mr Ntuli told the employees to go back to their
workstations
and they refused is hearsay and should be rejected, as
he was not called to testify allegedly because he was scared. The
Applicant
simply failed to prove that there was an unauthorised work
stoppage that was caused by Mr Hadebe.
[26]
Mr Hadebe arrived at the Applicant’s premises to enquire about
his work as he had tried
to contact Dirk on countless times to no
avail. It was Mr Hadebe’s testimony that he did not drive all
the way from KZN as
he has a house in Diepkloof. Mr Komani testified
about what he meant when he stated that the employees must continue
working. He
stated that they were surprised by the letter that they
had received and the Applicant informed them that it is still going
to
discuss the matter further at an upcoming meeting. Mr Hadebe
informed them to just continue working presumably because the matter
was still to be discussed.
[27]
Mr Hadebe could not just pass his fellow employees without talking to
them after having not seen
them for 4 months. If the Applicant’s
version that the Mr Hadebe came to the washbay area specifically to
hold a meeting,
why was the meeting held with only 5 people and why
would the meeting of 5 people cause some 15-20 people to stop
working. The
Applicant stated that Mr Hadebe ought to have addressed
the employees in responsible manner but in the same breath states
that
he was not the shop steward for the washbay and should have not
addressed the employees. Lastly, there was no request for permission
to hold a meeting because there simply was no meeting. The Applicant
testified that Mr Hadebe’s aggression when he was asked
why he
was holding a meeting proves his guilt. The alleged aggression in Mr
Hadebe’s voice could also mean that he did not
want to be
accused of holding a meeting when he in fact was not. Evidence before
the Commissioner did not support the version that
Mr Hadebe caused or
contributed to a work stoppage. Therefore, the Commissioner arrived
at a reasonable conclusion on this aspect.
[28]
It was never in dispute that the employees had received letters
relating to the transfer. There
was also no dispute that the
employees questioned Mr Hadebe regarding issues around the transfer.
Mr Hadebe’s version was
that there was an upcoming meeting
relating to the transfer and this is precisely why he stated that the
issue was not finalised.
The conclusion reached by the Commissioner
is therefore fully supported by evidence. Even if the Commissioner is
wrong on the issue
of consistency, the submission is that this would
not have much bearing on her findings. She did not find Mr Hadebe’s
dismissal
to have been substantively unfair because the Applicant
acted inconsistently but because the Applicant failed to prove the
charges
that were brought against Mr Hadebe.
[29]
It is further denied that the Commissioner erred in finding that Mr
Ntuli had to lead evidence
that he gave the instruction and the
employees ignored it. The two employees that testified that Mr Ntuli
gave instruction were
not present when he allegedly gave the
instruction. Therefore, what they testified on was merely hearsay. In
fact, Mr Breed testified
to the contrary that it was definitely not
Mr Ntuli who gave the instruction for the employees to disperse
because by that time
Mr Ntuli was busy with him. The Commissioner
ruled that she rejected the Applicant’s version because it is
not probable that
the whole washbay was not operating because 15
employees per shift comprise it. It is therefore no true that the
Commissioner failed
to give reasons why she rejected the Applicant’s
version.
[30]
It is further denied that there were no material discrepancies in the
evidence of the witness
regarding the duration of the meeting. Mr
Breed’s testimony was that the meeting lasted for 1 hour, at
the disciplinary hearing
Mr Tsotetsi said the meeting lasted for 10
minutes and changed his version to 45 minutes at arbitration.
[31]
The Applicant stated that it was testified that the remaining washbay
employees refused to work
and were in their change rooms but did not
point to which witness gave that testimony and where in the record
the testimony is
located. And even if the other employees refused to
work, the Applicant cannot connect their refusal to work to Mr
Hadebe. The
Applicant’s version that the washbay was not
operational at all was rejected by the Commissioner and correctly so
as Mr Komani
testified that there was only one washbay that was not
operational. The Commissioner’s award is not flawed and is
supported
by evidence. From the evidence, there is no logical
connection between Mr Hadebe having an alleged meeting with 5
employees and
the whole wash bay not operating. The Applicant simply
cannot make the connection. At best, the Applicant could argue that
Mr Hadebe
incited those 4 to 5 employees that he spoke with which
argument would still not hold since the employees were already not
working
when he arrived. An explanation has been provided as to why
Mr Hadebe remarked that the employees should continue working. The
Commissioner’s award is supported by evidence and reason and
there is no reason why this Court should interfere with it.
[32]
Mr Hadebe testified that he did not apologise earlier because
according to him that was the language
that they normally used with
each other. It is denied that the apology was feeble. Mr Hadebe was
remorseful and apologized because
he regretted his actions. A
withdrawal of words and an apology is the same thing. The working
relationship between the Applicant
and Mr Hadebe had not broken down
and the fact that he did not greet Pretus or Ambani after the
incident is, as the Commissioner
put it irrelevant. It had nothing to
do with what the Applicant was charged with.
[33]
The Applicant’s witnesses also provided contradictory
testimonies about how many trucks
were not washed. Mr Tsotetsi
testified that the 4 trucks were not washed and Mr Breed testified
that there were 8 trucks that were
not washed. If indeed the whole
washbay was not working, how were 4 of 18 or 20 trucks washed if Mr
Tsotetsi’s version that
only 4 trucks were not washed is to be
believed. If anything, this supported Mr Hadebe’s version that
there was only one
washbay that was not working hence the 4 trucks
that were not washed.
Analysis
[34]
In this matter, the commissioner was called upon to consider the
principal issue before her,
to evaluate the facts presented at the
hearing and to come to a conclusion that is reasonable. Once she has
done this, the arbitration
award she issued should be allowed to
stand as a final and definitive order
[2]
.
If not, depending on the defect, this court will be entitled to
intervene. The commissioner was here faced with two contradicting
versions on the events of the day. This was more so in count 1 than
in count two and then in evaluating the fairness of the sanction
in
count two.
[35]
The principles utilised in the evaluation of such evidence are well
known. The commissioner was
called upon to weigh the evidence as a
whole, taking account of the probabilities, the reliability and
opportunity for observation
of the respective witnesses, the
intrinsic merits or demerits of the testimony of witnesses, any
inconsistencies or contradictions
and all other relevant factors in
the context of the overall scrutiny of the evidence.
[3]
There is no doubt that the commissioner was alive to her duty to
consider the principal issue before her and to evaluate the facts
presented at the hearing. The review attacks the process of facts
determination or evaluation which would influence the reasonableness
or otherwise of the outcome or decision.
Count 1
[36]
On the probabilities of this matter, in relation to count 1, one may
easily accept that Mr Hadebe’s
arrival at the work place on
this day was not coincidental. He probably knew what was to happen on
this day, namely the transfer
of the business from the applicant to
Rheinichem. He was on suspension and clearly, ought never to have
been addressing other employees
during their working hours. However,
he was not charged for this. The allegation was that he instigated
and incited an unprovoked
or unscheduled work stoppage at the depot
washbay. The applicant bore the obligation to prove these
allegations. Its main difficulty
lies in that the applicant’s
evidence is devoid of any direct evidence to implicate Mr Hadebe. It
sought to rely on circumstantial
evidence to prove the fairness of
dismissal. The washbay supervisor, who could possibly have had direct
evidence of the alleged
instigation and incitement, as a person
located at the washbay, yielded to some threats and refused to
testify. The case of Mr
Hadebe, on the other hand was one of direct
evidence.
[37]
The case proved by the applicant essentially amounts to the
following:
On 11 April 2016 the
applicant arranged for a s197 transfer of its washbay, as a going
concern to be transferred and taken over
by Rheinichem;
Mr Tsotetsi was the
washbay as a Manager to do the handover of the washbay to Mr
Oosthuizen as Director of Rheinichem.
Mr Tsotetsi overheard Mr
Hadebe addressing the employees gathered at the bay area. Mr Hadebe
was on suspension at the time. He was
one of the shop stewards of the
employees of the applicant. He was however, not allocated as such, to
the washbay employees, who
had their shop steward.
Mr Hadebe had a home in
Durban but also had residence in Johannesburg.
Mr Tsotetsi then
instructed the washbay Supervisor, Mr Ntuli to tell the group of
employees to go back to their working station.
These employees were
about 5 to 7 seated in a U shape formation, listening to Mr Hadebe.
In all, the washbay had
no less than 15 employees on duty on this day. All were not working
at times material to this matter.
This took place from
about 10h30 to 11h00. The employees refused to go back to work.
Mr Tsotetsi reported the
failure to return to work to Mr Kolobe.
Mr Kolobe then
telephonically contacted Mr Hadebe, enquiring if it was true that Mr
Hadebe was holding a meeting with employee during
working time.
Mr Hadebe asked who it
was that told Mr Kolobe about the ongoing meeting. Mr Kolobe wanted
Mr Hadebe to confirm or deny if he was
indeed holding a meeting with
the washbay employees.
Mr Hadebe advised Mr
Tsotetsi to go and tell the one who told him about the meeting that
“unina loyo obambe i meeting.”
Which if translated to
English means “It is his mother who is holding a meeting.”
Mr Kolobe requested Mr
Hadebe not to use such words and asked Mr Hadebe to withdraw them.
Mr Hadebe refused to
withdraw the statement. The refusal was repeated even after Mr Kolobe
had told Mr Hadebe that Mr Tsotetsi had
made a report. Instead,
Mr Hadebe repeated the statement directing it to Mr Tsotetsi.
Mr Kolobe passed the
statement of Mr Hadebe to Mr Tsotetsi. Mr Tsotetsi was disturbed by
the comment because it was reference to
his mother. He felt
humiliated, disrespected and verbally abused.
Mr Hadebe did not
subsequently apologize or withdraw those comments until the end of
the disciplinary hearing, when giving evidence
in mitigation.
[38]
From these summarised facts, the applicant sought to have the
commissioner draw inferences, as
proof, on a balance of probabilities
that Mr Hadebe had instigated and incited an unprovoked or
unscheduled work stoppage at the
depot washbay. Yet, the applicant
failed to lead evidence in respect of -
What the 5 to 7 employees
were doing when Mr Hadebe arrived at them. In the event they were
already holding back their labour, this
cannot be said to be an
unprovoked work stoppage;
What it is that Mr Hadebe
was saying to the employees for it to be said he instigated and
incited them;
Why it is that the rest
of the other employees, Mr Hadebe did not speak to, were holding back
their labour;
What it is that the 5 to
7 employees did differently from the other group for one to say that
this group had been instigated and
incited.
[39]
Confronted by these considerations, the commissioner found the
probabilities in this matter to
be equal. I do not know how they can
even be equal, but on that pronouncement, the commissioner had to
check on who bore the onus
of proof, in this case the applicant, and
had to find that such was not discharged. In my view, the balance of
probabilities favoured
the version of Mr Hadebe, even though he had
no right to address these employees as he was on suspension. Taking
into consideration
the meaning and definition of “inciter”
(and hence incitement) no acts or conduct of Mr Hadebe were proved to
fall
squarely within the given definition.
Count 2
[40]
This count relates to the use of profanities or obscene language at
the work place. According
to Mr Hadebe, this should be accepted as a
normal manner of communication. If it were true that a language is
accepted and tolerated
at this work place, one need to wonder why Mr
Kolobe warned Mr Hadebe more than twice to withdraw his utterances,
while the incident
was still fresh in their minds. Mr Hadebe claims
that he was used to talking in profanities with Mr Kolobe. I find
this difficult
to accept. Mr Kolobe was the Divisional HR Director of
the applicant. In terms of office hierarchy, after Mr Kolobe comes Ms
Radebe,
the HR Manager of the applicant. Mr Hadebe was only one of
the Shop Stewards at the work place. No evidence was led by Mr Hadebe
to support the grounds on how it came about he was so close to Mr
Kolobe as to be able to use such a language with him. Nor was
such
evidence led in relation to Mr Tsotetsi. Mr Hadebe was told that the
report of him holding a meeting was received from Mr
Tsotetsi.
[41]
I consider the usage of profanities to be an abhorrence or disgust in
the same manner as with
the use of racial slurs.
We
have already been warned not to pussy foot around the use of racial
slurs at work places.
[4]
This expression used by Mr Hadebe is of high obscene language,
carrying derogatory insulting message. It has a nuance of belittling
women, in this case, mothers. We have a constitution whose purpose
includes healing divisions of the past and establishing a society
based on democratic values, social justice and fundamental human
rights
[5]
.
Gender based discriminatory practices go against the establishment of
a society based on democratic values. Women should fill
free to ply
their trades in places of work such as are offered by the applicant,
with no fear of reprisal by men. Mr Hadebe displayed
lack of respect
for women. He displayed lack of respect for his seniors at work.
[42]
The commissioner clearly failed to determine the seriousness of the
misconduct in this matter.
As already alluded to, Mr Hadebe was given
two chances to withdraw his utterances. He not only failed to take
advantage of that
moment, but he insisted even when told that the
report came from Mr Tsotetsi. It was only when he was confronted with
a reality
that he might be dismissed that he apologised. This apology
cannot be a true expression of pertinence. This is rather the
instance
of a corrigible rogue who tried to get away with it. The
concluding remarks of the commissioner demonstrate some confusion in
her
mind. She said:
“………
..I
conclude that the respondent was not able to prove, on a balance of
probabilities that the applicant has committed an alleged
misconduct
but the dismissal of the applicant was substantively unfair because
the sanction imposed was too harsh.”
[43]
Through the arbitration hearing, it remained common cause that Mr
Hadebe uttered the words he
was accused of. This was in response to a
reasonable request, asking him to confirm or deny that he held a
meeting with the washbay
employees. The request came from superior
personnel who was entitled to investigate the claim. The utterances
were offensive profanities.
The decision of the commissioner that the
applicant was not able to prove, on a balance of probabilities that
Mr Hadebe has committed
an alleged misconduct, is clearly
unreasonable. At this stage, it was not an alleged misconduct.
Rather, it was admitted misconduct,
in respect of which a defence was
to be raised, in the process of the shifting onus. The decision that
the dismissal of Mr Hadebe
was substantively unfair because the
sanction imposed was too harsh, was similarly unreasonable, as
already explained. An employee
who undermines authorities at a
working place with no justification does not deserve reinstatement or
re-employment. His return
to work is more than likely to wreak havoc,
with disciplinary measures being ignored with impunity.
[44]
In conclusion, I make the following order:
Order:
1.
The review application in respect of count
1 is dismissed.
2.1.
The review application in respect of count 2 is granted.
2.2.
The dismissal of Mr Hadebe by the applicant
in this matter was substantively fair.
3.
No costs order is made.
__________________
Cele
H.
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicants:
Advocate S Saunders
Instructed
by:
Cliff Dekker Hofmeyr Inc
For
the Respondent:
Ms L Sidambe from MM MITTI Inc
[1]
Act
Number 66 of 1995, hereafter referred to as the LRA.
[2]
G
oldfields
Mining SA (Pty) Ltd v CCMA
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at page 25.
[3]
S
v Chiya
1974
(3) SA 844 (T).
[4]
Rustenburg
Platinum Mine v Saewa Obo Meyer Bester & Others
2018
(8) BCLR 951 (CC).
[5]
See
the Preamble to the Constitution Act, 1996.