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[2025] ZALCJHB 225
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Giwusa obo Buthelezi v AEL Mining Services Limited and Others (JR 1572/2018) [2025] ZALCJHB 225 (20 June 2025)
THE LABOUR COURT OF
SOUTH AFRICA
AT JOHANNESBURG
Not Reportable
Case
no: JR 1572/2018
In
the matter between:
GIWUSA obo
SIYABONGA
First Applicant
LUNGELOBUTHELEZI
and
AEL MINING SERVICES
LIMITED
First Respondent
THE NATIONAL
BARGAINING
Second Respondent
COUNCIL
FOR THE CHEMICAL
INDUSTRY
(“NBCCI”)
NOZIBUSISO FAITH
GUMEDE
N.O
Third Respondent
Heard
:
23 October 2024
Delivered
:
20 June 2025
Summary:
(Review – use of vulgar language
in a SHEQ meeting directed at the convener – Arbitrator’s
findings on guilt and
sanction not ones that no reasonable arbitrator
could have arrived at – application dismissed)
JUDGMENT
LAGRANGE, J
[1]
This is a review application of an arbitration award in which
the arbitrator found that the applicant's dismissal by the first
respondent
(‘AEL’) was substantively fair but
procedurally unfair and awarded him three months compensation for the
procedural
unfairness.
Summary of salient
evidence
[2]
The applicant, Mr Mr S Buthelezi (‘Buthelezi’) had been
charged and dismissed for displaying unacceptable behaviour
when he
used vulgar language towards a co-worker in a safety session
facilitated on 20 October 2017 in the Nitrates Training Room.
Buthelezi commenced working for AEL in 2005 and was an operator in
the bagging department.
[3]
The incident arose during a so-called ‘Brother’s Keeper’
meeting, a type of workplace safety awareness training,
which was
attended by employees and sub-contractors. The meeting was
facilitated by a Safety, Health, Environment and Quality (SHEQ)
practitioner, Ms Z Mmboneni (‘Mmboneni’) who gave the
presentation. A power point presentation was displayed and Mmboneni
explained it, after which questions were invited from attendees about
the issues raised in the presentation.
[4]
However, some employees from the bagging department began raising
questions concerning plant issues, which were not related to
the
presentation. Mmboneni responded by saying the meeting was not the
right forum to address those issues and, for that reason,
tried to
curtail those type of questions. Moreover, there were other workers
and sub-contractors from different departments who
were not concerned
with the particular plant issues that were raised. When bagging
shed employees started raising issues,
some of the other attendees
started to leave.
[5]
Buthelezi raised the need for a separate gathering room, which would
be distinct from the mess room. He also said all the chairs
and
tables should be removed from the gathering room. At the time,
one room fulfilled both purposes. She responded that there
was no
rule stating that a gathering room (‘G room’) could not
also serve as a mess room and for emergencies but suggested
that the
topic be discussed during a plant meeting. According to Mmboneni,
Buthelezi was started raising his voice and said she
should not
complain about building a G room because the company had enough money
to do so. She reiterated it was not the forum
to discuss that issue
and proposed a separate meeting should be convened to deal with it.
It was at that point, Buthelezi said
what she was saying was “fuckin
shit” while looking directly at her. She claimed a shop
steward, Mr E Ramolobela
(‘Ramolobela’) said Buthelezi
was not supposed to say that, and asked her to forgive him, then told
Buthelezi to apologise.
She asked Buthelezi to continue
speaking as it seemed he had grudges against her, but she believed
that if Ramolobela had not intervened,
Ramolobela would have
continued to insult her. She recalled someone else who tried to close
Buthelezi’s mouth to stop him
using vulgar language, but could
not identify the person. According to her, there was a reaction from
the meeting when Buthelezi
uttered the objectionable words. She
testified that other attendees then started to leave. She had felt
embarrassed by being threatened
and insulted in front of employees
and contractors at the meeting.
[6]
When it was put to her that Buthelezi had not completed his sentence
and was going to talk about the showers, Mmboneni said the
discussion
up to then had nothing to do with showers but concerned the issue of
the mess room and G room.
[7]
The bagging shed manager, Mr P Masela (‘Masela’) who was
an attendee at the meeting gave a very similar version of
the events
to that given by Mmboneni. He differed to some extent on the nature
of Ramolobela’s intervention, stating that
he had asked
Mmboneni to forgive Buthelezi and asked her to forgive him. He also
said other workers in the meeting objected to
Buthelezi’s
language and stopped him talking.
[8]
Buthelezi agreed he raised the issue of the G room being used as a
mess room and for emergencies. He denied being angry or
raising
his voice but agreed Mmboneni was not responding to the questions
being raised. He wanted to say the showers were
“
fuckin
dirty”
but decided not to finish what he was going to say
because he realised he might have been perceived as rude when he used
the swear
word “
fuck”.
He disputed that anyone had
tried to close his mouth or that Ramolobela had apologised on his
behalf.
[9]
Mr M Ngcana (“Ngcana”), a shop steward also attended the
meeting on 20 October 2017. He claimed that the issues
raised
about the G room were safety matters because it was not up to
standard. He admitted Buthelezi swore but he said the showers
were
fuckin then stopped talking. He also denied anyone closed
Buthelezi’s mouth and did not hear Ramolobela apologising
on
Buthelezi’s behalf. He agreed Mmboneni had said Buthelezi must
continue and say what he wanted to say.
[10]
Ramolobela’s version was that Buthelezi had raised the issue of
the showers and said “
the showers were fucken..”.
He
also confirmed Mmboneni said he must carry on talking. According to
him nobody was angry, and the meeting was not heated. He
insisted
that Buthelezi stopped talking after he said the word “
fucken”
,
then Mmboneni said “…
no, just allow him to go on.
”
[11]
Ramolobela denied apologising on Buthelezi’s behalf. He also
laid a grievance against Mmboneni after he heard that in a statement
she made on 30 November 2017, she had made the allegation about his
intervention. He was asked why he only lodged that grievance
after
Buthelezi’s referred his unfair dismissal dispute to
arbitration. It was suggested he only did this to make his testimony
at the arbitration hearing easier. His simply said he realised he had
been used at the time he lodged it. The grievance was unresolved
at
the time of the hearing and Ramolobela said he had cancelled a
scheduled grievance meeting because he had to attend to something
more important.
[12]
The arbitrator found that the plant issues must have been raised out
of frustration because the forum was not intended to deal
with those
issues.
[13]
The arbitrator concluded that the applicant had used vulgar language
whether he had uttered the words “
fuckin”
or
‘
fuckin shit’,
and that Buthelezi acknowledged
such language was unacceptable in the workplace. She found it was
improbable that the applicant
intended to refer to the “
fuckin
showers”
, because there was no reason form him not to have
uttered the inoffensive word “
showers”
after he
had already said “
fuckin”.
[14]
On the question whether he had directed his language at Mmboneni, the
arbitrator found that AEL’s witnesses corroborated
each other
that he said the words while he was directly looking at her.
Moreover, if Buthelezi had not intended to make Mmboneni
the target
of his attack, he ought to have assured her that the words exchanged
were not directed towards her and that no harm
was intended.
[15]
The arbitrator accepted the evidence of the respondents’
witnesses that a shop steward, who was present at the meeting had
tried to intervene and had apologised on Buthelezi’s behalf,
asking that he be forgiven, even though the shop steward denied
having tendered such an apology on the applicant's behalf.
[16]
On the question of procedural fairness, the arbitrator found that
Buthelezi should have been permitted to have the shop steward
of his
choice represent him at the disciplinary enquiry, which the employer
had disallowed. For this reason, the arbitrator concluded
that the
dismissal was procedurally unfair.
Ground of review
[17]
Buthelezi raises the following grounds of review:
17.1
The arbitrator failed to explain why she preferred the AEL’s
witnesses’
versions when the applicants’ witnesses
versions also corroborated each other.
17.2
The fact that the offensive words were uttered while the applicant
was looking at
Mmboneni, did not mean that the words were directed at
her because the applicant was simply raising the issue of the showers
with
her.
17.3
There was no basis for the commissioner to find that the plant issues
were raised
out of frustration.
17.4
There was no basis for the arbitrator’s finding that the shop
steward probably
asked Buthelezi to be forgiven because he knew that
if Buthelezi apologised it would mitigate the seriousness of his
misconduct.
17.5
The arbitrator ought to have appreciated that there was no evidence
of statements
from other attendees at the meeting only because the
company did not conduct a proper investigation into what transpired.
17.6
The arbitrator failed to appreciate that no evidence of the code of
conduct was presented
to prove that the use of vulgar language in the
workplace amounted to misconduct or what recommended sanction was
provided for
it.
17.7
The arbitrator failed to determine the precise nature of the vulgar
language used,
whereas she was required to determine the most
probable version.
17.8
The arbitrator could not have found that progressive disciplinary
action would not
have been appropriate because no remorse was shown
by the applicant given that the applicant testified that he stopped
talking
when he uttered the word ‘fuck’' because he
realised he may have appeared to be rude whereas it was just a slip
of
the tongue and he admitted that such behaviour was not acceptable
in the workplace. Accordingly, he acknowledged his wrongdoing
and was
remorseful.
17.9
The arbitrator failed to consider mitigating factors and no evidence
was led on the
effect of the misconduct on the trust relationship.
[18]
Paragraphs 17.1, 17.2, 17.3 and 17.5 essentially concern the
arbitrator’s assessment of the evidence in concluding that he
was guilty of the charge. Paragraph 17.7 relates to the same issue.
The other grounds concern whether the arbitrator’s decision
that the sanction of dismissal was fair is sustainable. What the
relevance the arbitrator’s finding that the plant issues
were
raised out of frustration is, is not apparent.\
Evaluation
Arbitrator’s
evaluation of the evidence of misconduct
[19]
The main issue in relation to the alleged misconduct is whether there
was sufficient evidence for a reasonable arbitrator to have
concluded
that it was more probable the applicant had said Mmboneni was
“
talking shit”,
than uttering an unfinished
allegation about the “
fuckin …”
showers.
[20]
To succeed, Buthelezi must demonstrate that the arbitrator could not
have plausibly arrived at the findings given the evidence
before
him. If the arbitrator’s interpretation and weighing of
the evidence was not untenable then the award must stand.
[21]
Buthelezi complains that the arbitrator did not explain why the
evidence of Masela and M was preferred. It is correct the arbitrator
did not expressly state why she rejected the evidence of Buthelezi’s
witnesses, and this is a flaw in award. She ought to
have at least
provided brief reasons why she did so. Nonetheless, the question is
whether her assessment of the evidence was plausible
or, to put it
differently, whether no reasonable assessment of the evidence could
ever result in a conclusion that the firm’s
version is more
plausible.
[22]
The applicant admits using the word ‘
fucken’
and
that he was talking to Mmboneni when he said it but claims he did not
complete what he was going to say, namely that the showers
were
‘
fucken dirty’
. He claimed he did not
complete what he was going to say ‘
because someone else may
take it that I am swearing’
. On the employer’s
version, Buthelezi paused in his address because he was interrupted
by others, including Ramabolela, owing
to the language he was using.
[23]
It was common cause that Mmboneni had said Buthelezi should finish
what he was going to say, but he never did. Ramolobela himself
stated
that she said Buthelezi should be allowed to finish. Accordingly, it
is a legitimate inference to draw that Buthelezi did
not stop
speaking as an act of self-correction but stopped owing to the
objections raised by others in the meeting to what he said.
Equally,
it is not untenable to conclude that Ramolobela probably did try and
rectify matters by tendering an apology on Buthelezi’s
behalf,
given that it is plausible Buthelezi was interrupted by the reaction
of the meeting.
[24]
Further, Buthelezi’s own version for not completing what he
wanted to say is difficult to understand because it is not inherently
plausible. If he had already uttered the offensive word, but had not
completed the point he wanted to make, why stop speaking completely?
I do not think it was an impermissible inference for the arbitrator
to conclude that the employer’s witnesses’ account
of the
sequence of events which led to Mmboneni saying he should finish what
he was going to say was more likely because it is
more natural that
Buthelezi would have continued with what he was saying unless he had
been stopped by the actions of others. Moreover,
even Ramolobela’s
evidence supported the version that Mmboneni had reacted to other
attendees trying to prevent Buthelezi
from speaking further, which
also tends to support an inference that Buthelezi did not stop
speaking because he was checking himself
after a ‘slip of the
tongue’.
[25]
There was also no evidence tendered of any discussion having taken
place about the condition of the showers preceding Buthelezi’s
objectionable language, and it was never suggested to the employer’s
witnesses that a discussion of the showers was already
underway.
Similarly, there was no material challenge to Mmboneni’s
account of how she and Buthelezi were engaged in a back-and-forth
interaction about whether there was a need for a separate G room, at
the time he swore.
[26]
It is common cause that Buthelezi was engaged in debate with Mmboneni
about why the company did not build another gathering room
and that
the SHEQ meeting was not the forum for discussing that issue. There
was no account offered by Buthelezi how he made the
transition from
this interaction with Mmboneni about why the company did not find the
money to build a separate gathering room,
in which he made it clear
he did not accept that the company could not do that, to vehemently
protesting about the state of the
showers. In passing, Mr M Ngcana
(‘Ngcana’), contrary to Buthelezi’s version,
claimed that Buthelezi had said
something to the effect that “
the
showers are fuckin…”
, a version which is materially
at odds with Buthelezi’s own narrative and the version put to
EAL’s witnesses.
[27]
EAL’s narrative arising from the evidence was of a safety
training meeting being disrupted by employees from the bagging
department raising issues relating to their department. Following
that a relatively heated exchange between Buthelezi and Mmboneni
took
place over the need to build a separate gathering room. During that
exchange, Mmboneni’s attempt to argue that the room
could serve
a dual purpose was dismissively rejected by Buthelezi, who stated
that the company could afford to build another room,
and disparaged
Mmboneni using vulgar language when persisted in saying it was a
matter that should be discussed in another meeting.
His use of vulgar
language was not only objectionable to Mmboneni but also to other
attendees who interrupted him. This led to
calls being made for him
not to use such language and a request that he should apologise. It
is a version which is more consistent
with him accusing Mmboneni of
‘talking shit’ in response to what she said, than with a
version that he suddenly diverted
from the exchange they were having
into a complaint about the showers. It also provides a more credible
explanation why he abruptly
stopped speaking, given that it was not a
matter of dispute that Mmboneni had appealed for him to be allowed to
finish speaking.
[28]
Consequently, I am satisfied that had the arbitrator failed to assess
the credibility of the versions, Buthelezi has not made out
a case
that, she would have been compelled to favour his version if she did.
It is quite feasible for a reasonable arbitrator to
conclude he was
guilty as charged and that he had told Mmboneni in front of the
attendees present, that she was “
talking shit”.
Fairness of the sanction
[29]
It was not disputed that on either version, Buthelezi’s use of
vulgar language was unacceptable. He contends he should have
been
subjected to progressive discipline and the employer failed to prove
whether it was misconduct that normally attracts the
sanction of
dismissal. He also argues that the arbitrator failed to
appreciate that he acknowledged that the language used
was not
appropriate and this showed he was contrite and remorseful.
[30]
What needs to be demonstrated is that no reasonable arbitrator could
have accepted that dismissal was a fair sanction.
[31]
Without stating that she found Buthelezi had told Mmboneni she was
talking ‘
fucken shit’
, the arbitrator did find
that he directed his foul language at her. This took place in front
of a number of other employees from
other departments and
sub-contractors. Buthelezi never actually apologised even for his own
version of what he said. Acknowledging
that the use of such language
in the workplace is unacceptable is not the same as apologising to
Mmboneni for what he said. I am
not satisfied a reasonable arbitrator
could find an expression of real remorse in Buthelezi’s conduct
after the event.
[32]
In
Woolworths
(Pty) Ltd v Mabija & others
[1]
the Labour Appeal Court held:
“
The fact that the
employer did not lead evidence as to the breakdown of the trust
relationship does not necessarily mean that the
conduct of the
employee, regardless of its obvious gross seriousness or dishonesty ,
cannot be visited with a dismissal without
any evidence as to the
impact of the misconduct. In some cases, the more outstandingly bad
conduct of an employee would warrant
an inference that the trust
relationship has been destroyed. It is however always better if such
evidence is led by people who
are in a position to testify to such
breakdown . Even if the relationship of trust is breached, it would
be but one of the factors
that should be weighed with others in order
to determine whether the sanction of dismissal was fair.”
[2]
[33]
This was not an instance of a worker using foul language while
bantering with colleagues. It was uttered in a context where
Buthelezi was arguing with the person running a meeting attended by
other employees and it was directed at her and was plainly
disrespectful towards her. The immediate reaction of other attendees
was indicative of how unacceptable it was. In the circumstances,
it
would not be an unjustifiable conclusion to draw that it was a
particularly serious instance of the use of vulgar language
aggravated by the context in which it was uttered. As such, it cannot
be said that no reasonable arbitrator could agree with the
arbitrator’s conclusion that dismissal was a fair sanction.
Conclusion
[34]
It follows from the discussion above that Buthelezi has failed to
show that the findings of the arbitrator are ones no reasonable
arbitrator could have reached on the evidence.
Order
1.
The review application is dismissed.
2.
No order is made as to costs.
R Lagrange
Judge
of the Labour Court of South Africa
.
Representatives:
For the
Applicant:
M Bayi from Bayi
Attorneys
For the Third
Respondent: D Cithi from Tabacks Attorneys Inc.
[1]
(2016) 37
ILJ
1380
(LAC)
[2]
At paragraph 21, reaffirmed in
B
idserv
Industrial Products (Pty) Ltd v Commission for Conciliation,
Mediation & Arbitration & others
(2017) 38
ILJ
860 (LAC) at paragraph 34