Sneller Verbatim/lks
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
2005- 03-11 CASE NO: JR613/02
In the matter between
SHARON VAN WYK Applicant
and
INDEPENDENT NEWSPAPERS GAUTENG
(PTY) LTD First Respondent
CCMA Second Respondent
TIMOTHY BOYCE N.O.Third Respondent
_________________________________________________________
_
EX TEMPORE J U D G M E N T
_________________________________________________________
_
REVELAS, J :
[1] This is an application for the review of an arbitration award made
by the third respondent ("the arbitrator") wherein he found that
the dismissal by the first respondent ("ING") was procedurally
and substantively fair.
[2] The applicant had been in the employ of ING since 1 December
1991 and at the time of her dismissal she held the position chief sub-
editor. The applicant was dismissed by ING after shw was found guilty
of the following charges which were levelled against her:
"1. Gross misconduct in that you on 10 May 2001, sent an e-
mail to staff and management containing allegations which
are of a malicious nature with the intention of undermining
the authority of senior management.
2. Gross misconduct in that you in an e-mail dated 11 May
2001 made derogatory statements about the editor and deputy chief
editor of the Pretoria News."
[3] The facts and circumstances which gave rise to the aforesaid
charges are briefly the following:
On 10 May 2001 the applicant, while on night duty and in the
process of trying to get the morning newspaper out, had a heated
discussion with the editor (Mr Fynn), the deputy editor (Ms Green), Ms
Val Boje (a chief sub-editor and the applicant’s senior) and Mr
Meyerowitz (a back desk editor).
[4] The subject of the discussion was that the newspaper was late
for the delivery trucks that morning. The applicant believed that the
problem was attributed to understaffing and various other problems in
the workplace. She decided to address an e-mail to the managing
director of ING, Mr Nazeem Howa, who is based in Johannesburg. He
also gave evidence at the arbitration hearing. He said that prior to the
applicant sending him this e-mail, he could not put a face to her name.
This e-mail was also circulated to members of six members of ING
management.
[5] In the first e-mail to Mr Howa the applicant sets out her
frustrations at work and general problems in the workplace and
attempts to set out what the causes of most of the problems were. The
first e-mail also dealt with the lateness of the paper that morning but
more importantly, it contained a serious attack on Mr Howa, the
managing director. The offensive part of the e-mail, with reference to
Mr Howa, reads as follows:
"I would therefore respectfully advise you that the reason the
Pretoria News is late this morning is because you, and none of
your number cruchers and pseudo-newspaper men in the Star
building care a toss about us and what we go through to make
you look good".
[6] The second e-mail was addressed to Ms Val Boje, the applicant's
superior. It is common cause that the two of them are very close
friends and that the e-mail was not forwarded by the applicant or
Ms Boje to anyone else. However, this e-mail came to the
attention of Mr Fynn when it landed on his desk in an unmarked
attention of Mr Fynn when it landed on his desk in an unmarked
envelope. He testified he did not regard the e-mail as private
since it was company property. In this e-mail the applicant gave
vent to all her feelings and frustrations at work and did not mince
her words. Her reference in this e-mail to the editor (Mr Fynn)
and his deputy (Ms Green) as that “arse hole" and "his
overbearing cohort", respectively, gave the most offence. These
descriptions, no doubt, were the ones which gave rise to the
second charge. Mr Fynn stated that he felt "rotten" and
"betrayed" when he read how he was being referred to in the e-
mail.
[7] On 17 May 2001, the applicant was notified of a disciplinary
hearing that was to take place regarding the two e-mails. On 22 May
2001, she apologised profusely to Mr Fynn and Mr Howa. She offered
her "deep and sincere" apologies. Mr Howa did not respond and Mr
Fynn noted her apology. She had also asked them for forgiving her for
her wrongdoings. None of them seemed prepared to forgive her and in
a quite cynical vein, Mr Howa regarded her apologies as an attempt to
circumvent the disciplinary process.
[8] Both Mr Fynn and Mr Howa gave evidence to the effect that the
trust relationship between the applicant and her employer had been
broken down by the e-mails. Mr Fynn said that he could no longer work
with the applicant. Here I may just mention that at the time of the
applicant’s dismissal, Mr Fynn was transferred to Cape Town. He also
worked with the applicant just prior to and during her disciplinary
hearing, since she was never suspended.
[9] Mr Francis, who chaired the disciplinary enquiry, also found the
trust relationship between the applicant and ING had been
broken down. During the arbitration hearing it was also raised
that Mr Francis travelled from Pretoria to Johannesburg to the
disciplinary in the same vehicle as the prosecutor in the enquiry.
The applicant perceived there to be some basis on his part,
particularly since he frequently during the hearing, referred to
himself in the plural as "we". The arbitrator dismissed her
perception as without foundation as no concrete evidence was
produced to support her contentions. The arbitrator made a
finding based on the evidence before him and I am unable to find
that his observations were irrational.
[10] Apart from the applicant, the following witnesses testified on her
[10] Apart from the applicant, the following witnesses testified on her
behalf: Mr Clive Bawden, the deputy editor of the Pretoria; Mr Mark
Stansfield, an assistant editor at the same paper and Ms Boje and Ms
Marion Ashley. None of these witnesses called on behalf of the
applicant, approved of her actions and were largely very critical thereof,
except for Ms Ashley. The general tenure of their evidence was that
she should not have been dismissed.
[11] The applicant felt very strongly that dismissal was too harsh a
sanction for sending the first e-mail. She conceded that she should
have been disciplined, and as she put it, she expected a "good dressing
down". In respect of the second e-mail it was argued on her behalf that
the arbitrator should not have admitted the second e-mail as evidence,
because of its very private nature.
[12] The arbitrator found that the applicant had acted without malice
but irrationally and displayed bad judgment. I am in respectful
agreement with these findings. He found further that she decided to
"take a stand" regardless of the consequences and that both Mr Howa
and Mr Fynn had every right to feel insulted by the first e-mail. He
observed that the applicant ought to have been aware that the second
e-mail would be read by people other than Ms Boje, and that it was not
surprising that this was precisely what had occurred. Here I might just
mention that when Ms Boje received the e-mail, two of the applicant's
colleagues were standing behind Ms Boje and had read the e-mail with
her. The two e-mails were sent within a short time of each other and
had the same theme. The arbitrator found that the argument that the
second e-mail was inadmissible was without substance as it had been
sent to a communal computer which was the property of ING. He also
found that the sole challenge to the procedure followed prior to her
dismissal, related to the ostensible bias of the chairperson and that
there was no evidence before the arbitrator to indicate that there was
any merit. He further found that ING had not acted unfairly or
unreasonably in the imposing of the sanction of dismissal and that it the
dismissal was substantively and procedurally fair.
[13] Insofar as the review application was concerned, the applicant
relied on the Monitoring Prohibition Act, No 127 of 1992 ("the MP
Act") and it was argued in terms of that Act it was prohibited for
Act") and it was argued in terms of that Act it was prohibited for
the arbitrator to have any regard to the e-mail. I was also
referred to the matter of Lotter v Arlow and Another 2002 (6) SA
60 TPD. In the that decision Bertelsman J held that:
"The court's role was to prevent an abuse of the process
through improper or unlawful practices by disallowing
evidence obtained in violation of the law, good morals, ethics
or the public interests. Since the advent of the constitution,
the court was obliged to uphold its principles and
foundational values. Each citizen had a right to protection
against violation of his or her fundamental rights. As a
matter of public policy and in upholding the constitutional
rights of the respondents the court had to act against the
unwarranted intrusion into the private sphere of individuals."
[14] In that particular matter a certain individual wanted to prepare a
valuation of a Mercedes Benz vehicle which belonged to a
person who was sequestrated. He did so in the absence of the
owner of the car, by persuading a domestic servant to give him
access. The court regarded his evidence pertaining to the
evaluation as -
"clearly obtained in violation of the respondents’
constitutional rights to privacy. He entered their premises by
stealth and fully appreciated the 'sensitivity' of his unlawful
actions (Act 63A(2)(b))."
[15] The argument on the MP Act was not raised before the arbitrator.
The respondents ING's Information Technology Usage Policy
provides that all information stored on the system utilised by ING
belong to ING. The second e-mail was sent from a computer
belonging to ING to another computer belonging to ING. The
second e-mail dealt partly with work issues and was not marked
as private and or confidential and the conduct of the applicant
surrounding this incident was that she was aware that persons
other than Ms Boje could have seen the e-mail. She
disseminated the first e-mail to six other persons. That the
second e-mail was regarded by her as so very private, is
improbable. However, once Mr Fynn was in possession of the e-
mail, the applicant went to him and told him that he did not have
her permission to have the e-mail.
[16] The arbitrator dealt with the question of privacy as follows in this
award, and I quote from his award:
"The second e-mail was intended to be read by Boje only, but
what was intended was not what happened. What happened
was that the second e-mail came to the attention of other
people and, in particular, to Fynn. Bearing in mind the
medium of communication that was not surprising and the
employee ought to have been aware that the second e-mail
could have been read by others. The second e-mail was sent
to a communal ‘appleman’ which is the property of the
employer and the employee's argument that this e-mail
should be ruled inadmissible is without substance."
[17] I am unable to accept that the applicant in this matter may rely on
the MP Act. I have already mentioned it was not raised before
the arbitrator and I do not believe it was unlawful to read it. The
policy referred to, also cautions employees not to assume that
the e-mails will not be read by other persons. Yet in the same
policy the respondent endeavours to ensure privacy. In the
opening paragraph of this policy the author refers to -
"Respectful intellectual labour and creativity is vital to media
discourse and enterprise. This principle applies to works of
all journalists and publishers in all media. It encompasses
respect for the right to acknowledgement, the right to privacy
and the right to determine the full manner in terms of
publication and distribution. Because electronic information
is volatile and easy to reproduce, respect for the work and
personal expression of others is especially critical in
computer environments. Violations of authorial integrity,
including plagiarism, invasion of privacy, unauthorised
access and trade secrets and copyrights violations would be
grounds for disciplinary actions against employees."
[18] In my view, the question of the privacy of the e-mail may be
important when one has regard to the sanction imposed. I wish
to quote from the arbitrator's award, what he had to say about
the sanction in this matter:
"Although the sanction of dismissal in the circumstances of
this case was harsh, I am unable to say that in imposing this
sanction, the employer acted unfairly or unreasonably. The
employee is clearly a competent sub- editor who is intelligent
and talented and it is regrettable that her impulsive behaviour
caused her to be dismissed. Having said that, however, the
employee disregarded the consequences of her actions when
she decided to 'take a stand'. It is trite that the employer sets
the standard and the employer decides on the sanctions to
be imposed for non- compliance therewith. If the employer
with regard to the aforegoing acts fairly and reasonably, then
I am precluded from interfering with same."
[19] I considered whether, should along with the applicant's clean
record and long service record, the privacy of the e-mail might
not constitute an extenuating circumstance, which could perhaps
render dismissal inappropriate.
[20] Mr Fynn wanted to read the second e-mail. He asked for it from
Ms Boje and she said she would think about giving it to him. He then
obtained it in rather clandestine circumstances. But even if this second
e-mail should have been disregarded or should not have been read by
Mr Fynn, the point is he still did read it. The first e-mails existence is
also significant in this regard. In my view, it is a very serious
misconduct, when a senior employee challenges the managing director
of a newspaper for the inept manner in which he manages his
newspaper. She also deliberately shared this opinion with others. Mr
Howa did not even work in the same office as her. He did not quite
know who the e-mail came from when he first received it. It is an
aggressive e-mail. It is a declaration of animosity. In this letter the
applicant opened a collision course with her employer. The first e-mail,
on its own calls for a dismissal.
[21] I have also taken into account, that the arbitrator did not mention
in his award, and that is that Mr Stansfield gave evidence to the effect
in his award, and that is that Mr Stansfield gave evidence to the effect
that the sub-editor's department was a volatile environment where
members of staff used very strong language and this was common
throughout the newspaper industry. Mr Stansfield said he understood
and sympathised with the sentiments of the applicant in her e-mail to Mr
Howa. He did not expect that the language used in the e-mail would
result in a disciplinary hearing and rather believed it would receive
attention from the managing director, whom he knew well and had
worked with closely before taking up his position at the Pretoria News.
Mr Stansfield said he had hoped when he read the e-mail, that the
managing director would feel compelled to address the working
conditions at the Pretoria News.
[22] Mr Stansfield's gave his opinion. In my view, there are few
employers that would welcome criticism couched in this style, and
regard it as an invitation to address problems in the workplace. If that
was the applicant’s intention this e-mail was certainly not the way to go
about it. A polite letter would have sufficed. Then there was also
evidence that the applicant was a person who had the tendency to
"leap before she looked". This evidence was led by Mr Bawden, who
was very sympathetic to the applicant's plight. However, the fact that
the applicant has a volatile temper and addresses people in a very
straightforward manner, is no reason why her employer should tolerate
this kind of behaviour. Very few employers would tolerate this type of
behaviour from their subordinates. It is not open to me, in a review
application to interfere with the arbitrator's findings in this regard. It was
not demonstrated that the arbitrator came to a conclusion which was
irrational and disconnected to the evidence that was before him.
[23] The evidence in my view was dealt with by the arbitrator in a way
which does not warrant scrutiny on the level argued for on behalf of the
applicant. It is an arbitration award that is immune to review.
In the circumstances the application is dismissed with costs.
____________________
E.REVELAS
REPORTABLE
DATE OF HEARING: 11 MARCH
DATE OF JUDGMENT: 11 MARCH 2005
ON BEHALF OF THE APPLICANT: Bowman Gilfillan Inc.
ON BEHALF OF THE RESPONDENT:Webber Wentzel Bowens