THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable
Case no . JR1258 /21

In the matter between:

AECI INDUSTRIAL CHEMICALS, A DIVISION OF
AECI LIMITED Applicant

and

GIDEON LELAKA First Respondent

GENERAL INDUSTRIAL WORKERS UNION OF
SOUTH AFRICA Second Respondent

PANELLIST M SOMAN N.O Third Respondent

NATIONAL BARGAINING COUNCIL FOR THE
CHEMICAL INDUSTRY Fourth Respondent
Date heard : 04 September 2024
Date delivered: 03 February 2025
This judgment was handed down electronically by circulation to the parties’
representatives by email and release to SAFLII. The date for hand -down is
deemed to be 31 January 2025.


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JUDGMENT


BALOYI , AJ
Introduction

[1] The underlying issue in this review application is the unfair dismissal dispute .
Its ventilation at the Bargaining Council resulted in the third respondent
issuing an arbitration award . In terms of the award, the third respondent found
the dismissal of the first respondent to be unfair on account of the sanction
being too harsh. He ordered the applicant to reinstate the first respondent
retrospectively without backpay. In essence, the third respondent upheld the
guilty finding that was handed down by the ap plicant to the third respondent.
The principal issue which this Court is called upon to determin e turns on
whether the third respondent’s decision is reviewable for having found the
dismissal not an appropriate sanction.

[2] It is notable from the material placed before the third respondent that the first
respondent was charged, found guilty and dismissed for gross misconduct
which was set out in the charge sheet as follows:

“Allegation(s): Gross Misconduct
1.1 On or about 15 October 2020 you engaged in an uncalled -for and
unwarranted manner with a fellow employee who perceived your
conduct as intimidating and threatening.

[3] The dispute arose from the altercation between the first respondent and his
female colleague, Vanessa McIlroy in his office. It is common cause that Ms
McIlroy came to the third respondent’s office seeking assistance on work -
related issues. The first respondent and Ms McIlroy’s disagreements within
their discussions escalated to the point that the first respondent felt
disrespected . An altercation ensued with the first respondent’s voice being the
loudest. The other colleagues in nearby offices heard them. One of them, Mr
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Lungile Koti c ame through and pulled Ms McIlroy away from the first
respondent’s office .

[4] Ms McIlroy laid a grievance against the first respondent. According to the
outcome of the grievance hearing a finding that the first respondent made
himself guilty of misconduct was made. A recommendation for disciplinary
action was made against the third respondent. The subsequent disciplinary
process resulted in a guilty verdict followed by a sanction of dismissal .

[5] In the challenge of the fairness of the dismissal, the third respondent w ho
arbitrated the dispute made a finding that the first respondent was guilty of
misconduct after having heard according to the Applicant that:

5.1 The first respondent intimidated Ms McIlroy with verbal abuse when he
told her to sit down, to respect him and to not treat him like a child and
by pointing a finger.
5.2 The feeling of being intimidated was triggered by the aggressive
manner in which the first respondent was addressing her.

[6] What the third respondent heard from the first respondent was that he merely
offered Ms McIl roy a seat to enable him to explain how the purchase orders
are processed. At no stage was he aggressive. He never shouted at Ms
McIlroy. I n fact , she was the aggressive one and was not prepared to accept
his explanation .

The arbitration award

[7] As pointed out above, the third respondent found that the first respondent
committed gross misconduct. She however disagreed with the applicant on
sanction in that she found it to be harsh in view of the first respondent’s long
service of 28 years and clean disciplinary record. She also noted the absence
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of evidence led to establish the breakdown of trust relationship. She relied on
Edcon Ltd v Pillemer NO and Others1 in support of this point .

Before this Court

[8] The grounds upon which the applicant is seeking review of the arbitration
award are in essence that the decision of the third respondent is not one
which a reasonable decision maker could reach given the underlying findings
to the guilty verdict . The third respondent failed to appreciate the nature of the
inquiry she was required to undertake. The finding on the sanction is not
consistent with her own findings that led to the guilty verdict which she
ignored when dealing with the sanction, amongst others that:

8.1 the first respondent showed no remorse and was not willing to accept
the wrongdoing ;
1.2 he proffered a disingenuous version;
8.3 he was aggressive, disrespectful and placed Ms McIlroy in a vulnerable
position , and;
8.4 the third respondent had a greater onus as the chairperson of the
Employment Equity Committee to conduct himself in a respectful
manner .

[9] Further that the first respondent’s length of service and clean record should
weigh above the factors considered towards the guilty finding , which
demonstrates that the third respondent’s decision is not the one that a
reasonable decision -maker could reach. Furthermore, that the applicant did
not lead evidence to establish a breakdown of the employment relation ship
cannot amid overwhelming underlying factors to the guilty finding render the
dismissal unfair .

[10] The first respondent’s contentions are that the decision of whether the
sanction imposed by the applicant was fair entails making a value judgment

1 [2010] 1 BLLR 1 (SCA) .
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based on the third respondent’s sense of fairness. The long service and clean
record cannot be ignored and are instrumental in salvaging the trust
relationship. There were no factors suggesting the breakdown of the trust
relationship that would compensate for the applicant’s failure to lead evidence
to establish the breakdown of a trust relationship . In the absence of such
factors, the applicant was bound to lead evidence to establish the breakdown
of the trust relationship.
Evaluation

[11] This matter turns on the fairness of the sanction. The third respondent found
the dismissal of the first respondent to be harsh after having taken into
account the first respondent’s long service, clean record, the applicant’s
failure to lead evidence on the breakdown of the trust relationship and the
applicant’s delay in instituting the hearing and that the first respondent worked
in the same environment as Ms McIlroy with their contact limited to email
communication.

[12] According to the third respondent , the first respondent’s conduct should have
attracted a final written warning. She rejected the applicant’s argument on 16
days of activism which should be considered against the third respondent as
violence against women is an aggravating factor. She also expressed a view
that the first respondent should have conducted himself more responsibly as
he was the chairperson of the Employment Equity Committee. An order
reinstating the first respondent without backpay was made.

[13] The applicant’s grounds of review are heavily rested on the third respondent’s
consideration of the length of service, clean record and the applicant’s failure
to lead evidence on the breakdown of the trust relationship. The first
respondent's reply is that these are not the only factors . The third respondent
considered a variety of factors to arrive at the decision made .

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[14] In Autozone v Dispute Resolution Centre of Motor Industry and Others2 the
Labour Appeal Court (LAC) at paragraphs 11 and 12 had this to say:

“[11] Consequently, the only issue on appeal is whether Sikhakhane’s
conduct breached the trust relationship so as to render the
continuation of the employment relationship intolerable.
[12] Undeniably, the evidence on the issue is somewhat thin. An employer
relying on irreparable damage to the employment relationship to justify
a dismissal would be prudent normally to lead evidence in that regard,
unless the conclusion that the relationship has broken down is
apparent from the nature of the offence and/or the circumstances of
the dismissal. Where the offence in question reveals a stratagem of
dishonesty or deceit, it can be accepted that the employer probably
will lose trust in the employee, who by reason of the misconduct alone
will have demonstrated a degree of untrustworthiness rendering him
unreliable and the continuation of the relationship intolerable or
unfeasible. ”

[15] The above dicta justifies the applicant’s submissions that it is not in all cases
that the employer must lead evidence to establish that the trust relationship is
broken down. The facts of the matter driven by the nature of the misconduct
have a bearing in determining whether the trust relationship is broken down.
Simply put; the underlying factors to the nature of the misconduct and
circumstances of the dismissal may be sufficient to render it unnecessary to
lead such evidence on trust relationships. The LAC in the Autozone decision
made an order upholding the dismissal of an employee who was dismissed
for dishonesty and deceitful conduct in circumstances where the employer
had not led evidence on the breakdown of the trust relationship. The following
was said in paragraph 13:

“[13] Dishonest conduct, deceitfully and consciously engaged in against the
interests of the employer, inevitably poses an operational difficulty.
The employer thereafter will be hard pressed to place trust in such an
employee. It will be difficult going forward for any task involving a

2 (2019) 40 ILJ 1501 (LAC) .
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measure of discretion or reliance to be entrusted to the deceitful
employee. The operational requirements of the employer alone,
therefore, may very well justify the dismissal. An employer is entitled
to have a driver it can rely on to act in good faith to advance and
protect its interests. Sikhakhane’s conduct shows that he is not such a
driver. It was not necessary for Autozone in such circumstances to
have produced evidence to show that the employment relationship
had been irreparably destroyed . The nature of the offence and the
manner of its commission support a conclusion that the continuation of
the relationship had become intolerable. The employer cannot
reasonably be expected to retain Sikhakhane in its employ. Hence,
the finding to that effect by the arbitrator is one that a reasonable
decision -maker could reach. There was accordingly no basis for the
Labour Court to set aside the award.”

[16] The approach taken in the Autozone decision was not new to the LAC. It was
previously adopted in Impala Platinum Ltd v Jansen and Others3 where the
Court dealt with the dismissal of the employee who violated the safety
regulations and remarked as follows:

“[20] The Commissioner rightly found that Jansen’s conduct went to the
root of the employment relationship deserving of the severest
sanction. This cannot be faulted. In fact, it would be unfair to expect
the Appellant to retain Jansen in its employ where Jansen had not
only displayed gross misconduct in failing to comply with statutory
regulations but also contravened the duty to act in good faith by
promoting his wife’s business to Appellant’s service providers thereby
compromising fairness and honesty within the Appellant’s business
relationships. In the circumstances, there was no need to lead any
evidence of a breakdown in the relationship, as it was obviously the
case. This ground of appeal thus succeeds.

[17] The Court also noted the path followed in Edcon calling for the need for the
employer to lead evidence on the breakdown of trust relationship. This was

3 (2017) 38 ILJ 896 (LAC) .
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influenced by the nature of the charge4 which required sufficient evidence of
breakdown of trust relationship to sustain the sanction of dismissal.

[18] In a similar matter where the employee proffered a version that was seen as
far-fetched the LAC still found in De Beers Consolidated Mines Ltd (Venetia
Mine) v National Union of Mineworker and Others5, that the dismissal was not
an appropriate sanction. In essence , the employee’s failure to disclose a
relationship with the employer’s service providers was found to be not so
serious as to impede the restoration of the employment relationship. The
Court found the dismissal to be unfair in so far as the sanction of dismissal
had not been appropriate. It went on to award a relief of reinstatement without
backpay .

[19] It appears from the above decisions that in a situation of misconduct that is
not characterized by dishonesty and/or deceit where long service and a clean
record are a feature, the possibilities of restoration of the employment
relationship are realizable . In casu, the third respondent reasoned that the
employer’s leading evidence on the breakdown of trust relationship was the
default position. This according to the third respondent is a blow to the
applicant’s case. In view of the settled position on this aspect, the third
respondent missed a point in this regard. The question arising out of this ; is
whether the third respondent’s award can be reviewed on this point alone . In
Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine v Commission for
Conciliation, Mediation and Arbitration and Others6, the LAC cautioned about
the approach to review applications in a fragmented piecemeal fashion and
the following was said at par a 21:

“[21] Where the arbitrator fails to have regard to the material facts it is likely
that he or she will fail to arrive at a reasonable decision. Where the
arbitrator fails to follow proper process he or she may produce an
unreasonable outcome (see Minister of Health and Another v New

4 Ibid a t para 12.
5 (2020) 41 ILJ 884 (LAC) .
6 (2014) 35 ILJ 943 (LAC) .

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Clicks South Africa (Pty) Ltd and Others 2006 (2) SA 311 (CC)). But
again, this is considered on the totality of the evidence not on a
fragmented, piecemeal analysis. As soon as it is done in a piecemeal
fashion, the evaluation of the decision arrived at by the arbitrator
assumes the form of an appeal. A fragmented analysis rather than a
broad -based evaluation of the totality of the evidence defeats
review as a process . It follows that the argument that the failure to
have regard to material facts may potentially result in a wrong decision
has no place in review application s. Failure to have regard to material
facts must actually defeat the constitutional imperative that the award
must be rational and reasonable - there is no room for conjecture and
guesswork.”

[20] The third respondent’s decision to interfere with the sanction on the basis of
having faulted the applicant for failing to lead evidence of breakdown of trust
relationship does not constitute an irregularity that renders the arbitration
award reviewable . There was no evidence of dishonest conduct on the part of
the first respondent that was placed before the third respondent. The third
respondent also took into account o ther relevant factors to arrive at a finding
that the employment relationship was capab le of being restored including
length of service and a clean record , hence a relief of reinstatement was
ordered .

[21] In view of the above, the third respondent’s decision cannot be faulted. The
nature of the misconduct was not really detrimental or bringing the applicant’s
business to a compromise. The third respondent’s opinion that the sanction of
a final written warning should have been imposed on the first respondent
clearly points to the effect that whatever issues that existed between Ms
McIlroy and the first respondent required a conflict management exercise
which the applicant should have undertaken. On this note , the decision of the
third respondent falls within the bands of reasonableness and the application
for the review of the arbitration award should under these circumstances fail.

[22] With the employment relationship facing restoration, it will not be in the
interest of law and fairness to make a cost order.
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[23] In the premises, the following order is therefore made :

Order

1. The review application is dismissed .

2. There is no order as to costs.


_____________________
M. Baloyi
Acting Judge of the Labour Court of South Africa






















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Appearances :

For the applicant : Mr D Cithi of Mervin Taback Inc t/a Anderson

For the third respondent : Mr A Ramkisson of Jayshree Juglal
Incorporated