IN THE LABOUR COURT OF SOUTH AFRICA
HELD ATJOHANNESBURG CASE NO. J2544/00
In the matter between:
OERLIKON ELECTODES SOUTH AFRICA Applicant
and
THE COMMISSION FOR CONCILIATION, MEDIATION First Respondent
AND ARBITRATION
PHALA, NO Second Respondent
NATIONAL UNION OF METAL WORKERS OF SA Third Respondent
THAVER, P Fourth Respondent
JUDGMENT
MODISE A J
Introduction
1. This is an application brought in terms of section 145 of the Labour
Relations Act 66 of 1995 ("the Act") for the review of an award
made by the second Respondent ("the commissioner") under the
auspices of the first respondent ("the CCMA").
2. The commissioner found that although he agreed with the applicant
that the "infraction" committed by the fourth respondent had racial
overtones the applicant's dismissal of the fourth respondent did not
fit the offence and therefore the fourth respondent's dismissal was
substantively unfair. He accordingly ordered the retrospective
reinstatement of the fourth respondent from the date of his
dismissal, being 9 February 1999.
3. The review application is opposed by the third and fourth
respondents.
The facts
4. Prior to the fourth respondent's dismissal he was employed by the
applicant as a laboratory technician for a period of ten years.
5. On or about 2 February 1999, the applicant's production
superintendent, Mr Du Plessis, telephoned an independent
electrician, Mr Hayden Heilman, to collect a hot plate from the
applicant's laboratory for repairs. Mr Heilman duly collected the hot
plate from the applicant's premises on the same day.
6. On 4 February 1999 Mr Heilman returned the repaired hot plate to
the applicant's laboratory. When Mr Heilman arrived at the
applicant's premises Mr Du Plessis accompanied him to the
laboratory. As he and the fourth respondent were about to enter the
laboratory, the baking operator, Lesley, called Mr Du Plessis to
attend to a query. At that stage, Mr Du Plessis told Mr Heilman to
proceed to the laboratory as he already knew where to find the
stove. After attending to the query, Mr Du Plessis went to the
laboratory and thereafter showed to the fourth respondent the
element and the wires. He told him that they had been repaired. Mr
Heilman then asked the fourth respondent to remove the vials
which were lying on the oven. Instead of removing the vials, the
fourth respondent snatched the hot plate from Mr Heilman's hands
and said " the repair was a s_ _ _t job ". He continued to be
abusive to Mr Heilman by saying "f_ _ _dutchmen you f _ _ _d up
the country" He also said, "there f_ _ _ ing whites think they
can do anything they want in the company. This government
has had enough of apartheid."
7. At that stage, Mr Du Plesssis telephoned the technical manager, Mr
Gould, to come to the laboratory. Mr Gould obliged. As he entered
the laboratory he found Mr Heilman and the fourth respondent
involved in a heated argument. Out of the blue the fourth
respondent said, "dutchmen" who think they could do as they
please". These words were said in Mr Gould's presence.
8. The fourth respondent testified that Mr Heilman racially abused him
by calling him a "koelie".
9. After this incident the fourth respondent was charged with the use
of abusive language.
10. A disciplinary enquiry was held on 5 February 1999. The fourth
respondent was found guilty and dismissed
11. The fourth respondent appealed against the decision of the
chairperson of the disciplinary enquiry. The appeal was dismissed.
12. Subsequent to the fourth respondent's dismissal, he invoked the
statutory dispute resolution procedures. An arbitration hearing was
convened before the commissioner on 25 February 2000.
13. During the arbitration hearing, the applicant called three witnesses
being Messrs Gould, Du Plessis and Heilman. The fourth
respondent testified in his defence.
14. The applicant now seeks to review the commissioner's award
against the retrospective reinstatement of the fourth respondent.
Analysis of the evidence
15. During crossexamination the fourth respondent conceded that he
used the words attributed to him by Mr Du Plessis and Mr Heilman.
However, he explained that he used the words attributed to him
because he was extremely provoked by Mr Heilman. He first called
Mr Heilman a "dutchmen" because he stormed into the laboratory
and ordered him around without greeting him. He said that he was
also provoked when Mr Heilman called him a "koelie".
16. During further crossexamination the fourth respondent explained
that by "dutchmen" he meant that Mr Heilman was like all other
white people in this country. He also conceded that the word
"dutchmen" is indeed derogatory.
17. In argument, Mr Orr on behalf of the applicant submitted that during
the fourth respondent's disciplinary enquiry at no stage did he testify
that Mr Heilman called him a "koelie". Mr Cartwright on behalf of the
fourth respondent referred me to the relevant portions of the record
reflecting that the fourth respondent testified that Mr Heilman called
him a "koelie".
18. It is not very clear from the fourth respondent's evidence why he
called Mr Heilman and Mr Du Plessis "dutchmen" and white
supremacist. His evidence appears to be contradictory in this
regard.
19. On page 225 of the record, the applicant's representative during the
disciplinary hearing, Mr Harris, put certain questions to the fourth
respondent.
20. On page 18 of the record from paragraphs 10 to 15, the following
questions and answers are recorded:
20.1 "And the only provocation that you can tell us about is that
he did not greet you when he walked into the laboratory
_ _ _. No, _ _ _ (inaudible) no he used the words
fucking, remove the _ _ _ (inaudible) and then later on he
said … (inaudible) fucking "koelie", you are labourers in
this country. But not when he first walked in? _ _ _ No."
20.2 "So the thing that provoked you really was that he did not
greet you _ _ _ Yes, that was _ _ _ (inaudible).”
20.3 On page 228 of the record from paragraphs 5 to 10, the
following is stated:
"At what stage was "koelie" put to you _ _ _ Mr Heilman's
first sentence to me _ _ _ (inaudible) to me was you fucking
"koelies" were labourers?"
20.4 On page 231 of the record from paragraphs 5 to 10, the
following is apparent:
"You had a problem with the gentlemen because he did
not greet you _ _ _ . That is right ".
21. It is also apparent from the transcript of the disciplinary hearing that
the alleged use of the word "koelie" directed at the fourth
respondent was used after the fourth respondent had called Mr
Heilman and Mr Du Plessis "dutchmen" and white supremacists.
However, during the arbitration hearing the fourth respondent
testified that he used the words "dutchmen" and white supremacist
in reaction to him being called a "koelie" by Mr Heilman.
22. It is common cause that during the disciplinary hearing the fourth
respondent's representative did not put to any of the applicant's
witnesses that the fourth respondent would testify that Mr Heilman
called him a "koelie". In argument, Mr Cartwright submitted that it
was unfair to expect a shop steward when representing employees
at the CCMA to conduct himself as if he was counsel. Mr
Cartwright also argued that the fact that the fourth respondent's
representative did not put to the applicant's witnesses that he was
called a "koelie" was of no consequence and that I should not place
any weight on the shop stewards failure to put what the fourth
respondent's version would be to the applicant's witnesses.
23. For the purposes of this judgment, I do not think it is necessary for
me to decide on Mr Cartwrights's submission referred to above.
However, I find it very strange that if indeed Mr Hayden called the
fourth respondent a "koelie", the shop steward representing him did
not at any stage during the disciplinary hearing point out that
Hayden called him a "koelie". One does not have to be a seasoned
counsel or have a legal qualification to mention something which on
the facts of this case could have possibly tilted the outcome of the
dispute in the fourth respondent's favour. My view in this regard is
further reinforced by the contradictions made by the fourth
respondent regarding the use of the words "koelie" by Mr Hayden
alluded to earlier in this judgment.
24. Mr Orr argued that if I were to find that Mr Heilman provoked the
fourth respondent by calling him a "koelie" it was not open for me to
find that Mr Du Plessis similarly provoked the fourth respondent
because the fourth respondent did not accuse Mr Du Plessis of
having called him a "koelie" and
that there was therefore no basis whatsoever on the part of the
fourth respondent to have called Mr Du Plessis a white supremacist
and a "dutchmen". I am of the view that there is merit in Mr Orr's
submission in this regard. Although the words uttered by the fourth
respondent would possibly not be regarded by some to be racist
and offensive they are, when viewed holistically, abusive as
contemplated by the applicant's disciplinary code and procedure
discussed later in this judgment.
Award
25. In ordering the fourth respondent's retrospective reinstatement the
commissioner found that the applicant acted in violation of its
disciplinary code and procedure and the Act and that he could not
condone such conduct on the part of the applicant. He found that
the penalty of dismissal as meted out by the applicant to the fourth
respondent did not fit the offence.
26. In reaching this conclusion, the second respondent relied on a
category of offences listed in the applicant's disciplinary code and
procedure under " attitudinal offences ". The applicant's disciplinary
code and procedure provides for a written warning for a first
offender in respect of " the use of abusive and/or derogatory and/
or offensive language or signs ". In terms of the disciplinary code
and procedure, a dismissal only kicks in after an employee has
committed a third offence. In his award, the second respondent
made much of the fact that the fourth respondent was a first
offender and that the code of good practice reinforced the view
adopted by this court that " a dismissal should be reserved only
for the gravest infractions and should be action of last resort ".
27. The head note in the case of SA Yster, Staal – & Verwante
Nywerhede Unie & 'n Ander v Asea Electric SA (Pty) Ltd (1988) 9
ILJ 463 states the following:
"The court found that, given De Beers' role in initiating the
incident in question, the defence of provocation could not be
sustained. With respect to the absence of a warning, the court
concluded after an examination of the employer's code that the
penalties set out therein were not inflexible and that the right
to dismiss summarily in appropriate circumstances had been
preserved by the employer. Given the racial context of the
incident and certain other aggravating features, the court
decided that the decision to dismiss was reasonable and
hence not an unfair labour practice."
28. In County Fair Foods (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration (1999) 20 ILJ 1701 (LAC) at 1709 A – D
Kroon JA said the following
"The basis on which the arbitrator considered that the
appellant had apparently felt itself constrained by the terms
of its disciplinary code (which was in fact not produced at any
stage) was, it would seem, founded on the evidence on behalf
of the appellant that the third respondent was aware of the
provisions of a disciplinary code negotiated by the appellant
with a rival union, that in terms thereof a dismissal could
follow after a first offence of assault and that the other
employees found guilty of assault had been visited with the
sanction of dismissal. Be that as it may, Mr Sutherland,
correctly, did not seek to join issue with the approach of the
arbitrator that the provisions of a disciplinary code are no
more than a guide; each case would be governed by its own
merits. Implicit in counsel's argument, however, was the
contention that the comment that the appellant had
apparently felt itself constrained by the terms of its
disciplinary code was not justifiable. …."
29. It was submitted on behalf of the applicant that the suggested
penalties contained in the third respondent's disciplinary code and
procedures are guidelines and nothing more. This submission
seems to find support in the third respondent's disciplinary code and
procedure.
30. The applicant's disciplinary code and procedure under the heading
disciplinary action provides the following:
"As a general rule the offences as set out will normally incur a
verbal or written warning but in certain circumstances and
depending upon the gravity of the offense this may lead to
summary dismissal in terms of level four of the disciplinary
procedure."
31. In my view, a disciplinary code and procedure was never intended
to be applied and followed slavishly by an employer. Each case has
to be decided on its facts and circumstances regarding the
imposition of the appropriate sanction.
Racism
32. Mr Orr argued that the applicant dismissed the fourth respondent
for the use of abusive, racist and derogatory language directed at
Mr Du Plessis and Mr Heilman in the presence of a superior, Mr
Gould. He also pointed out that the fourth respondent conceded
having repeatedly used the following words:
"S_ _ _t job", "dutchmen" and that the days of white
supremacy are over and that we live in a new South Africa ."
33. During crossexamination the fourth respondent explained that by
"dutchmen" he meant that Mr Heilman was like all other white
people in South Africa and that he used these words
notwithstanding the fact that they are derogatory.
34. Mr Cartwright submitted that the words white supremacist do not
have the same historical significance as the word "kaffir". He further
submitted that although a white person may be offended when
called a white supremacist the "emotional and psychological effect"
evoked by such words would not have the same impact of calling a
black person a "kaffir". Although there is an element of truth in Mr
Cartwright's submission in this regard. However, I am unable to
dismiss Mr Orr's submission that Mr Cartwright's submission
amounts to urging me to enter into some "_ _ _ sociological
enquiry" which I believe to be unnecessary for the purposes of this
judgment.
35. In Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp & Others
(2002) 6 BLLR 493 (LAC) the court had occasion to pronounce on
racism in the work place. At pages 504505 AB Zondo JP said:
"The attitude of those who refer to, or call, African "Kaffirs" is
an attitude that should have no place in any workplace in this
country and should be rejected with absolute contempt by all
those in our country – black and white – who are committed to
the values of human dignity, equality, and freedom that now
form the foundation of our society. In this regard the courts
must play their proper role and play it with conviction that
must flow from the correctness of the values of human dignity,
equality and freedom that they must promote and protect. The
courts must deal with such matters in a manner that will "give
expression to the legitimate feelings of outrage" and revulsion
that reasonable members of our society – black and white –
should have when acts of racism are perpetrated ".
36. At page 509 E – F the Crown Chickens judgment Nicholson JA
endorsed the sentiments expressed by Zondo JP when he said:
"It was never contended that the use of racist epithets in
question should not be visited by the sanction of dismissal.
Racism is a plague and a cancer in our society which must be
rooted out. The use by workers of racial insults in the
workplace is anathema to sound industrial relations and a
severe and degrading attack on the dignity of the employee in
question. _ _ _".
37. The Labour Appeal Court came out very strongly and
unambiguously that any use of racist epithets in the new South
Africa should lead to the dismissal of employees who are found to
be guilty of such conduct. I respectfully agree with and adopt, what
Zondo J P and Nicholson J A said in this regard in the Crown
Chicken case.
Sanction
38. The second respondent found the fourth respondent's dismissal to
be substantively unfair and ordered that he be reinstated with
retrospective effect. Mr Orr attacked the reinstatement of the fourth
respondent on the basis that the second applicant could not have
ordered such reinstatement without having considered what unique
circumstances if any were present to warrant a sanction other than
a dismissal and that he instead irrationally and inexplicably
proceeded to set aside the fourth respondent's dismissal. He also
argued that it was clear from the Crown Chickens' case that it was
only in the most exceptional circumstances that acts of racism may
not be visited with a sanction of dismissal.
39. Our Courts have had occasion to consider circumstances upon
which the commissioners would be entitled to interfere with a
sanction of dismissal imposed by an employer. Generally, the
Labour Appeal Court has found that a commissioner should show
deference to the disciplinary sanction imposed by an employer.
40. In County Fair Foods (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration (1999) 20 ILJ 1701 (LAC) at 17121713
AB Ngcobo AJP said the following:
"Given the finality of the awards and the limited power of the
Labour Court to interfere with the awards, commissioners
must approach their function with caution. They must bear in
mind that their awards are final. There is no appeal against
their awards. In particular, commissioners must exercise
greater caution when they consider the fairness of the
sanction imposed by an employer. They should not interfere
with the sanction merely because they do not like it. There
must be a measure of deference to the sanction imposed by
the employer subject to the requirement that the sanction
imposed by the employer must be fair. Rationale for this is that
it is primarily the function of the employer to decide upon the
proper sanction ."
41. At 1712 D – E in the same judgment, Ngcobo AJP continued to
say:
"In my view there is no reason, both in principle and logic, why
the approach set out above should not be applicable to
commissioners, who are called upon to consider the fairness
of the sanction imposed by employers. The fact that the
proceedings before the commissioner take the form of a
hearing de novo, matters not. Where an employer, upon
investigation, has acted fairly in imposing the sanction, the
commissioner should not disturb it. The mere fact that the
commissioner may have imposed a somewhat different
sanction or a somewhat more severe sanction that the
employer would have, is no justification for interference by the
commissioner. The minds of equally reasonable people differ ".
42. Mr Orr further submitted that the second respondent's award was
not rational in the sense of him not having applied his mind
seriously to the case and his reasoning was flawed in arriving at the
conclusion that the fourth respondent's dismissal was substantively
unfair. It was also argued that the second respondent's finding that
the applicant's disciplinary code and procedure did not comply with
the code of good practice was without substance.
43. I agree with the submissions made by Mr Orr that the second
respondent did not properly reason his way out by arriving at the
conclusion that the applicant's dismissal of the fourth respondent
was substantively unfair. I do so for the following reasons:
43.1 By failing to appreciate the fact that the proposed
penalties set out in the applicant's disciplinary code and
procedure and in particular, the penalty relating to the
use of abusive language is only a guideline and that in
appropriate circumstances such as in this case even
though the fourth respondent was a first offender the
sanction of dismissal imposed by the applicant was not
unfair;
43.2 Notwithstanding the second respondent's finding as well
as Mr Cartwright concession that the words used by the
fourth respondent were abusive and had racial
overtones, the second applicant found the fourth
respondent's dismissal to have been substantively fair
because of the " cavalier fashion " with which the
applicant applied discipline.
43.3 The second respondent improperly and unjustifiably
interfered with the sanction of dismissal imposed by the
applicant when it was not open for him to do so on the
facts of this case;
44. In my view, no purpose would be served in remitting the matter to
the first respondent to be considered by another commissioner. The
second respondent should have upheld the dismissal on the
grounds that there was good reason to terminate the fourth
respondent's employment.
45. In the result I make the following order:
45.1 The award of the second respondent is set aside.
45.1.1 The dispute between the applicant and the
third respondent is to be determined as
follows:
(a) The dismissal of the fourth respondent by the applicant
is declared to have been for a fair reason;
(b) The third and fourth respondents are ordered to pay the
applicant costs jointly and severally the one paying the
other to be absolved.
L MODISE
ON BEHALF OF THE APPLICANT MR C ORR
INSTRUCTED BY
WEBBER WENTZEL
BOWENS
ON BEHALF OF THE THIRD AND FOURTH
RESPONDENTS NUMSA
MR D O CARTWRIGHT
DATE OF HEARING 21 ST NOVEMBER 2002
DATE OF JUDGMENT JULY 2003