IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN Case No: JR466 /03
In the matter between:
SOUTH AFRICAN BROADCASTING CORPORATION Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION AND
ARBITRATION First Respondent
MTHEMBU. J N.O. Second Respondent
MEDIAWORKERS ASSOCIATION OF SOUTH AFRICA
(MWASA) Third Respondent
KHOALI. N Fourth Respondent
JUDGEMENT
A. INTRODUCTION
1. This is an application for the review of the reward of a CCMA Commissioner
(“the Commissioner”). The applicant is the South African Broadcasting
Corporation. The first and second respondents are the CCMA and the
Commissioner respectively. The affected employee, Ntshediseng Khoali, is
the fourth respondent.
2. The fourth respondent was employed in a relatively senior management
position as a regional editor responsible for the newsroom at the applicant’s
regional office in the Free State. She was charged with various counts of
misconduct (dealt with in more detail below). Pursuant to a disciplinary
enquiry held during August 2002 she was dismissed. The appeal against her
dismissal was unsuccessful.
3. She declared a dispute and the dispute eventually came before the
Commissioner for arbitration by him.
4. The Commissioner found that the fourth respondent “ was incorrectly
dismissed for misconduct when her conduct as shown by the respondent’s
(that is, the applicant in the review) evidence amounted to poor work
performance”. The Commissioner reinstated the fourth respondent with
retrospective effect to the date of her dismissal.
B. THE CHARGES
5. At the disciplinary enquiry the fourth respondent was charged as follows:
“ 1. Disruption of relations;
2. Poor supervision; and
3. Undermining and harming the interests of the SABC.”
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6. Each charge comprised several counts.
7. Under the head “ Disruption of Relations” the charge read as follows:
“Since your appointment as Regional News Editor in Bloemfontein on 01
December 1999, the Free State Region as far as the News component is
concerned, has become dysfunctional and destabilised and that you have
significantly contributed to the tension in the newsroom by acting in the
following unacceptable manners:
• During the period December 1999 to
May 2002, you have surrounded
yourself with employees whom you
regard as supporting you, including
but not limited to Sello Letsoha,
Hlaudi Motsoeneng, Molefi Thibile
and Robasana Maliehe, to the
exclusion of the rest of the
employees under your supervision
resulting in a deep division amongst
staff members.
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• During the period December 1999 to
May 2002, you have favoured
certain employees, i.e. by promoting
Molefi Thibile to the position of
Senior Producer: Current Affairs,
despite an alleged inability to
present news bulletins as a result of
alcohol related problems.
• During the period December 1999 to
May 2002, you revealed to members
of the management team the contents
of a confidential discussion, which
Pontsho Makhetha had with you
about certain employees.”
8. Under the head “ Poor Supervision” the charge read as follows:
“Since your appointment as Regional News Editor in Bloemfontein on 01
December 1999, you have failed to take appropriate disciplinary steps
against employees under your supervision as required by the SABC’s
disciplinary procedure and code of conduct, contributing to the unstable
environment in the News Department and creating the impression that
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certain employees are immune to disciplinary action.
• During the period December 2000 to
December 2001, you failed to take
action against Robasana Maliehe for
not returning SABC fleet vehicles
timeously on a number of occasions
(see annexure A).
• During February 2002, you failed to
take action against Robasana
Maliehe who was absent from duty
between the period 04 February
2002 and 06 February 2002, without
prior approval.
• During April 2002, you failed to take
disciplinary action against Liholo
Liholo, who reported late for work
and was also absent from work on
18 March 2002. It was also
reported to you that the problem of
late coming happened on a number
of occasions, but you still refused to
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take any action in this regard.
• During the period December 1999 to
May 2002, you failed to take
disciplinary action against Molefi
Thibile for sleeping on duty and
therefore being unable to present
News bulletins as a result of
intoxication.”
9. Under the head “ Undermining and Harming the Interests of the SABC” the
charge read as follows:
“Since your appointment as Regional News Editor in Bloemfontein on 01
December 1999, you have engaged in conduct, which undermined or
harmed the interest of the SABC by stigmatising working on the news
bulletin.
• During the period 01 December
1999 and May 2002, you referred to
the News bulletin as a boring place
for old people as opposed to Current
Affairs. You have further told
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employees, specifically Motale
Sebego and Ntsiepe Masoetsa, that
you would punish them by sending
them to the bulleting desk. This had
serious effect on the morale of the
employees on the news bulletin and
affected productivity.”
(All the above quotes are direct quotes and have not been
corrected by me)
10. The charges were based on provisions of the applicant’s disciplinary code.
C. THE FINDINGS OF THE DISCIPLINARY ENQUIRY
11. Set out below are relevant extracts from the findings of the employer’s
disciplinary panel. They are relevant because they shed light on the nature of
the charges against the fourth respondent.
12. Under charge 1:
“It was clear, through Mrs. Khoali’s own admission, that there were
distinct and different groupings/cliques that were formed and operated
within the Newsroom. Both groupings/cliques included but were not
limited to Management and Staff. The panel has concluded that the one
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grouping was under the leadership of Mrs Khoali.
It was further established that the existence of the groupings resulted in a serious
breakdown of personal and work relations to the extent where the Regional Editor
perceived herself to be hated by some staff members.
Through Mrs. Khoali’s conduct and behaviour, she played a significant role in dividing
and pollarising the Newsroom. Further to that, Mrs Khoali perceived the other grouping
as “gangster” which clearly indicates the deep division that exists in the Newsroom.
Staff not belonging to the Regional Editor’s grouping were deliberately disempowered
and felt marginalized which led to undermining and defying her to the extent where their
conduct constituted gross insubordination.
The continued defiance and insubordination of staff and the consequences of Mrs
Khoali’s failure to act to ensure harmonious working relations in the Newsroom resulted
in the irreparable relations between her and the staff.”
13. Under charge 2:
“The panel concluded that Mrs Khoali failed to adhere to the SABC
disciplinary code by not exercising full responsibility and accountability
over serious acts of misconduct, by not only general staff but also
members of her management team.
As Mrs. Khoali is held ultimately responsible for instilling discipline in the Newsroom,
she should not abdicate the responsibility of addressing serious acts of misconduct and
defiance.”
“Mrs. Khoali’s failure to act against Liholo Liholo’s serious misconduct amounts to
dereliction of duty. Her attempt to address this issue does not constitute any disciplinary
action in line with the serious nature of the misconduct by Liholo Liholo, a senior
member of her management team. The panel therefore finds Mrs. Khoali guilty.”
14. Under charge 3:
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”Evidence led proved that Mrs, Khoali is partially culpable for the
negative perceptions and stigmatising of the bulletin desk as she failed to
combat and indeed contributed to the prevailing negative perception of
the bulletin desk.”
(Again, the above quotes are direct and have not been corrected by me)
D. THE EVIDENCE
15. On the outset it should be pointed out that the record appears to be
incomplete. It is further not possible to state with certainty whether the
omissions are material. I refer in particular to the evidenceinchief and the
crossexamination of the fourth respondent, the evidence of Mr. Conradie, the
evidence of Mr. Letsoga and the evidence of Mr. Zikalala.
16. Several witnesses testified on behalf of the applicant. Their evidence
traversed a wide range of events and conduct attributed to the fourth
respondent.
17. In summary, the factual allegations levelled against the applicant amounted to
the following:
16.1 Allegations of an improper use of her power to make or recommend
appointments;
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16.2 Allegations of an abuse of her disciplinary powers; for example, a
deliberate failure to discipline favoured employees for what appeared to be
serious misconduct;
16.3 Allegations of an abuse of her power to recommend and bring about salary
increases for favoured employees; and
16.4 Allegations of an abuse of her managerial powers to punish (unjustly)
those not favoured by her.
18. Further, the evidence led was to the effect that her conduct as testified to
seriously harmed the interests of her employer.
19. The evidence was not fully challenged in crossexamination. In her own
evidence the fourth respondent did not deal in any material detail with the
allegations levelled against her but satisfied herself with a series of bare
denials. The evidence given by witnesses on her behalf did not improve this
situation materially.
E. THE FINDINGS OF THIS COURT
20. It does not appear from the Commissioner’s award that he analysed the
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evidence in any material detail. Nor did he assess its value or cogency. His
approach appears to have been simply to categorise the evidence against the
fourth respondent as constituting complaints of poor performance and to
conclude that because she was disciplined for misconduct and not for poor
performance, her dismissal was unfair.
21. By seeking to categorise the issues in the way he did, the Commissioner erred.
Clearly the charges and the evidence against the fourth respondent would, if
sufficiently proved, constitute evidence of conduct justifying dismissal. But
more importantly, in adopting the approach that he did, he failed to address
the issues that he was required to do, namely, whether the fourth respondent
was guilty of conduct serious enough to warrant dismissal.
22. The notional line between the various circumstances that could give rise to a
fair dismissal (misconduct, poor performance, incapacity and operational
requirements) is not always easy to draw. Often the same conduct may give
rise to more than one appropriate categorisation. Employers may often, not
unreasonably, err in their attempts to categorise the circumstances giving rise
to a potential dismissal. The failure correctly to categorise should not
however detract from the appropriate inquiry in each case, namely, to assess
first, whether there was a substantively fair reason for dismissal and second,
whether an appropriate and fair procedure was followed by the employer.
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23. There are other problems with the award. The Commissioner found that there
was no evidence of procedural unfairness. Yet, his award appears to have
been materially influenced by two findings. The first was that the
investigation giving rise to the disciplinary proceedings was unfair. The
second was that the employer was guilty of a failure to follow a fair procedure
in relation to allegations of what he concluded were allegations of poor
performance (something which in any event he failed to deal with properly in
his findings). Finally, it is not apparent from the award that the Commissioner
properly considered whether, in all the circumstances, reinstatement was an
appropriate remedy.
24. Applying the test for review generally accepted in this court, I conclude that
the award of the Commissioner is reviewable and stands to be set aside. The
ultimate award of the Commissioner is not justifiable in relation to the reasons
given. Moreover his incorrect approach resulted in a failure to do what the
Labour Relations Act, 1995, required of him, namely, to assess the evidence
and to make a finding as to whether the conduct complained of was proved
and if so whether it was serious enough to warrant dismissal. There has not
been a trial of the issues as is required by the Labour Relations Act.
See; Carephone (Pty) Ltd v Marcus NO and others (1998) 19 ILJ 1425
(LAC); and
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Toyota SA Motors (Pty) Ltd v Radebe and others (2000) 21 ILJ 340 (LAC)
25. I have given some thought as to whether this matter should be referred back
for reconsideration by the first respondent or whether I should, in this
judgement, finally dispose of the matter. There is something to be said for the
latter approach. Importantly, the finalization of this dispute has taken far too
long.
26. However I have decided to refer the matter back to the CCMA for
determination before a Commissioner other than the second respondent. I am
concerned that the record appears to be incomplete and it is impossible to tell
whether the omissions are material. I am further of the view that a fair
outcome can only be arrived at when the evidence is properly considered in
accordance with the requirements of the Labour Relations Act. This would
require an assessment as to whether the conduct testified to is sufficiently
proved, and if so, is serious enough to warrant dismissal. Further,
consideration needs to be given to whether, in any event, reinstatement the
fourth respondent would, in all the circumstances, be appropriate even if the
dismissal is found to be procedurally or substantively unfair. In my view it is
appropriate that these tasks be performed by the first respondent.
27. I do not believe that an award of costs is appropriate, certainly at this stage.
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F. ORDER
28. Accordingly I make the following order:
26.1 The award of the fourth respondent is reviewed and set aside.
26.2 The dispute is referred back to the Commission for Conciliation,
Mediation and Arbitration for reconsideration before a Commissioner
other than the second respondent.
26.3 There is no order as to costs.
DATED AT JOHANNESBURG THIS 30 th DAY OF DECEMBER 2005.
____________________________
P J PRETORIUS S.C.
Acting Judge: Labour Court
30 December 2005
FOR THE APPLICANT: P Maserumule of Maserumule Inc.
FOR THE THIRD AND FOURT RESPONDENTS: Adv P Kennedy S.C. instructed by
Joubert Scholtz Denga
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