( 1) Reportable: No
(2) Of int2to other Judges: No
__ ~ 31 July 2026
Jnafure Date
THE LABOUR COURT OF SOUTH AFRICA,
HELD AT CAPE TOWN
In the matter between:
ANDRE RHEEDER
and
SANLAM LIFE INSURANCE LTD
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION
D DU PLESSIS N.O.
Heard: 30 June 2025
Delivered: 31 July 2026
JUDGMENT
VANVOOREAJ
Case No: C539/2023
Applicant
First Respondent
Second Respondent
Third Respondent
Page 2
Introduction
[1] This is an application in terms of section 145 of the Labour Relations Act, 66
of 1995, as amended ("the LRA"). Andre Rheeder, (the applicant) launched
an application to, inter alia, review and set aside an arbitration award of Mr D
Du Plessis ("the commissioner"), the third respondent. The commissioner
presided over arbitration proceedings under the auspices of the Commission
for Conciliation, Mediation and Arbitration ("the CCMA"), the second
respondent.
[2] The relief sought by the applicant includes that this court reviews and sets
aside an arbitration award under CCMA case number WECT-19449-22 ("the
arbitration award") or corrects the award, that this court substitutes the
arbitration award with a finding that the dismissal of the applicant by the first
respondent was substantively unfair and that the applicant be retrospectively
reinstated, or that the arbitration award be set aside and referred to the
CCMA for re-hearing before a commissioner other than the third respondent.
Applicant's grounds of review
[3] The applicant's grounds of review include the following:
3.1 The commissioner, in conflict with the behests of the LRA failed to apply
his mind, misconducted himself, committed a gross irregularity and/or
acted unreasonably, unjustifiably and irrationally in finding that the
applicant was fairly dismissed;1
3.2 The award is further defective as it reflects gross irregularities and/or legal
errors on the part of the commissioner. The commissioner further
misconducted himself in the performance of his duties as an arbitrator
and/or that the commissioner exceeded his powers. Consequently, the
commissioner reached a decision that no reasonable decision-maker
could have reached. The applicant was denied the right to a fair hearing.2
1 Pleadings, Founding Affidavit, paragraph 10
2 Ibid, paragraph 11
Page 3
3.3 The commissioner failed to properly assess the evidence and to resolve
material disputes of fact which required him to have regard to, inter alia,
the credibility of the witnesses.3
3.4 It was not possible for the commissioner to properly determine the
credibility of the witnesses, their candour and demeanour and the calibre
and cogency of their evidence without an opportunity to observe them
personally.4
Background
[4] The applicant was previously employed by Sanlam Investment Group, a
division of Sanlam Life Insurance Limited (the first respondent) for a
considerable period of time (more than 30 years). In the period immediately
prior to his dismissal, the applicant was employed as the Head of Sanlam
Properties and was in charge of the property department from 2013 / 2014.
[5] The first respondent convened a disciplinary hearing into allegations of
serious misconducts. The disciplinary hearing notice is dated 16 April 2019.
[6] The allegations of misconduct included, inter alia, the following:
6.1 As the Head of Sanlam. Properties you failed and/or refused to
avoid/properly address or remove yourself from a conflict of interest and/or
breached the trust relationship and/or misused/abused your position
and/or willfully or negligently engaged in conduct which could have
damaged the reputation of the Company and/or failed to act in terms of
your duties towards the Company or in the best interests of the Company,
when you visited a development site on 13 July 2018 and ultimately
purchased wood from the developer for your own use;
6.2 Notwithstanding your position as a senior manager of the Company, you
displayed discriminatory conduct on the basis of race and/or were grossly
insubordinate and/or were grossly insolent and/or failed to follow
3 Applicant's heads of argument, paragraph 33
4 Applicant's heads of argument, paragraph 33
5 Record Volume 2, pages 1 - 4
Page 4
reasonable and lawful instructions and/or disregarded the Company's
governance structures and/or were disrespectful towards or undermined
the authority of Mr Shanmugam as your line manager, on various
occasions;
6.3 Notwithstanding the fact that you are a senior manager in the Company
and/or after having been directed to embrace/advance the transformation
initiatives, culture and/or strategy of the Company, you failed and/or
refused to comply with your transformation obligations.
[7] The applicant was found guilty of misconduct and was dismissed. The
applicant referred an alleged unfair dismissal dispute to the CCMA.
[8] In the CCMA proceedings the applicant and the first respondent concluded a
pre-arbitration minute6. The pre-arbitration minute is dated 6 June 2023. The
pre-arbitration minute records, inter alia, the following:
"8 The parties have agreed that there is no need for all the
evidence to be reheard at the arbitration as a transcript of the
evidence that was led at the previous arbitration is available.
9 The parties have agreed that the Arbitrator will determine the
matter on the transcript of the previous arbitration proceedings
and the bundles of documents that were placed before the
erstwhile Arbitrator. There will be no need to lead any further
evidence.
10. Once the Arbitrator has had an opportunity to consider the
transcript and bundles, the parties request they be afforded an
opportunity to submit written arguments, with an opportunity to
orally present their respective arguments to the Arbitrator. 7
[9] The commissioner was provided with a copy of the pre-arbitration minute.
The commissioner expressed some reservations in relation to the matter
being determined on the record. The commissioner's reservations included
6 Record, volume 1, pages 55 - 68
7 Record, volume 1, page 56
Page 5
that the matter was complex and in his opinion the procedure contemplated
by the parties would not put him in a position to adequately evaluate the
demeanour of the witnesses and ask clarifying questions.8
[1 O] On 8 June 2023 the commissioner issued a ruling that the matter would be
heard afresh and further directives regarding the delivery of a statement of
case and a statement of response. The directive also included a request to
the parties that they agree on common cause facts and that they agree to
adjust the pre-arbitration minute.9
[11] Subsequent to 8 June 2023 and after engagement with the parties, the
commissioner issued a further ruling on 23 August 2023. In that process
ruling the commissioner records that "In terms of the agreement between the
parties and as per the pre-arbitration minute, the matter would be considered
on the evidence previously presented and recorded. I was given the full
recording and a transcript of the recording."10 The agreement referred to in
the 28 August 2023 ruling is the pre-arbitration minute dated 6 June 2023.
[12] One of the applicant's grounds of review is that the proceedings which
culminated in the arbitration award dated 19 September 2023 under CCMA
reference number WECT19449-22 constitute a nullity.11
[13] In brief, the applicant contends that the commissioner issued a ruling dated
8 June 2023 to the effect that the matter be heard afresh and that in the
absence of an application to review the 8 June 2023 ruling or an application
to vary or rescind the 8 June 2023 ruling, the commissioner was functus
officio.
Assessment: Proceedings an alleged Nullity
[14] The applicant and the first respondent concluded a pre-arbitration minute.12
8 Record, volume 7, page 3
9 Record, volume 7, pages 1 - 4
10 Record Volume 7, page 58
11 Applicant's Heads of Argument, paragraph 22
12 Record Volume 1, pages 55 to 68
Page 6
[15] On 26 June 2023, the first respondent's attorneys addressed a letter to the
CCMA (its National Director, the Western Cape Senior Convening
Commissioner and other officials). In effect, the first respondent's attorneys
objected to the third respondent's 8 June 2023 ruling and were instructed to
"escalate the matter internally in the CCMA and to request that the matter be
determined on the basis as agreed between the parties' agreed pre
arbitration minute" .13
[16] On 26 June 2023, the applicant's attorney sent an electronic mail to the
second respondent and the first respondent's attorneys replying to the letter
from the first respondent's attorneys also of 26 June 2023.14 The applicant's
attorneys, with reference to the commissioner's ruling of 8 June 2023,
submitted that the "arbitration must run as an arbitration normally would'.
[17] The senior convening commissioner of the CCMA Western Cape proposed a
meeting. The meeting took place on 7 July 2023. The commissioner attended
the meeting of 7 July 2023. At the meeting the commissioner states that:
" ... the pre-arbitration minute, and for some other reason, I didn't really realise
that it was a signed minute. My feeling is if it's a signed minute, then we are
bound by it."15
[18] During the course of the 7 July 2023 meeting, the commissioner and the
parties' attorneys referred to a range of issues including the transcript, the
length of the transcript, the fact that an audio recording is available, the
bundles of documents and the full documentary record. During the course of
that part of the discussion the commissioner also canvasses that he would
listen to the recording and have regard to the documentary record. In the
meeting the commissioner observes: "Alright. Ja, because I will also in the
event ... look at the documents that were introduced during the arbitration
hearing ... and ... then probably ... I am not sure Vusi ... must it then be [her)
13 Record Volume 7, pages 6 -10, paragraph 20
13 Record Volume 7, pages 6 -10, paragraph 20
14 Record Volume 7, page 12
15 Record Volume 7, page 38
Page 7
submissions made in September? Must we arrange a date for that, or ... I
see".16
[19] During the course of the meeting, the parties also dealt with logistical
arrangements as to delivery of the documentary record to the offices of the
second respondent as well as making the audio recordings of the arbitration
proceedings available to the commissioner.17
[20] It is apparent that at the meeting of 7 July 2023 the parties were engaging in
a co-operative manner in order to address the situation and find a practical
way to deal with the manner in which the alleged unfair dismissal dispute
would be heard and determined by the commissioner. Both the senior
convening commissioner and the commissioner thanked the parties for their
co-operation .18
[21] Towards the end of the meeting the applicant's attorney enquired whether
the parties are now waiting for a further directive. The commissioner
responded that he did not think that they needed a further directive. The
commissioner then informed the parties that he would probably attend to the
matter in the second week of August 2023.19
[22] The parties and the commissioner left the 7 July 2023 meeting on the basis
that the full documentary record would be made available to the
commissioner by delivery to the offices of the CCMA, the audio recording of
the arbitration proceedings would be made available to the commissioner,
the commissioner would consider the record and, subject to submissions in
argument to be made by the parties, would determine the matter on that
basis. The outcome of the meeting was that through a discussion the parties
had arrived at a practical way to address the commissioner's process ruling
of 8 June 2023 and ultimately to give effect to the signed pre-arbitration
minute dated 6 June 2023.
16 Record Volume 7, page 46
17 Record Volume 7, page 50
18 Record Volume 7, page 53
19 Record Volume 7, page 54
Page 8
[23] The commissioner issued a process ruling on 23 August 2023.20 In that
process ruling the commissioner records that "In terms of the agreement
between the parties and as per the pre-arbitration minute, the matter would
be considered on the evidence previously presented and recorded. I was
given the full recording and a transcript of the recording. "21
[24] In the process ruling of 23 August 2023, the commissioner also records that
he had listened to the entire recording and had made his own notes from the
recordings. The commissioner further directed the parties to revise their
closing submissions, to exclude from it any reference to any past proceedings
and to submit the revised written closing submissions by 11 September
2023.22
[25] Whilst the applicant's attorneys had, in their electronic mail dated 26 June
2023 recorded inter alia "We await your confirmation that the matter will
proceed as per the ruling setting out the further conduct of the matter", it was
clear to the parties that a process different to that contemplated in the 8 June
2023 process ruling would be followed. The outcome of the meeting of 7 July
2023 was that a process other than that recorded in the commissioner's
process ruling of 8 June 2023 would be followed, ultimately to give effect to
the signed pre-arbitration minute dated 6 June 2023.
[26] At no point during or after the meeting of 7 July 2023 and prior to the process
ruling dated 23 August 2023 did the applicant's attorneys record any
opposition to the exploration of a process different to the 8 June 2023 process
ruling. The applicant's attorneys participated in that process and acquiesced
in a co-operative attempt to have the alleged unfair dismissal dispute
determined.
[27] The commissioner issued the arbitration award under CCMA reference
number WECT19449-22. The arbitration award is dated 19 September 2023.
20 Record Volume 7, pages 57 - 59
21 Record Volume 7, page 58
22 Record Volume 7, pages 58 and 59
Page 9
[28] The applicant contends that in the absence of an application to review the
process ruling dated 8 June 2023 or an application to vary or rescind the
process ruling of 8 June 2023, that ruling remained binding on the parties and
that the commissioner was functus officio. The applicant submits that
proceedings subsequent to 8 June 2023 which culminated in the
commissioner's arbitration award constitute a nullity. These contentions are
not sustainable.
[29] Section 144 of the LRA provides, inter alia, as follows:
"144. Variation and rescission of arbitration awards and
rulings
Any commissioner who has issued an arbitration award
or ruling, or any other commissioner appointed by the
director for that purpose, may on the commissioner's
own accord or, on the application of any affected party,
vary or rescind an arbitration award or ruling -
( a) erroneously sought or erroneously made in the
absence of any party affected by that award;
(b) in which there is an ambiguity, or an obvious error
or omission, but only to the extent of that ambiguity,
error or omission;
(c) granted as a result of a mistake common to the
parties to the proceedings; or
(d) made in the absence of any party, on good cause
shown."
[30] In Crown Chicken (Pty) Ltd TIA Sovereign Foods v Commission for
Conciliation, Mediation & Arbitration & Others (2013) 34 ILJ 2872 LC the
court held:
"{11 J The purpose of granting commissioners the power
to rescind their rulings of their own accord is partly to
save a party who is a victim of a commissioner's error
from suffering the prejudice of an erroneous ruling and
the hardship of having to make a rescission application
with its concomitant potential prejudice. The case
before the commissioner is a classic example of the
mischief the legislation sought to address by granting
commissioners that power because in its absence or
had the commissioner refused to exercise it, the third
respondent would be compelled to apply for the
rescission of the dismissal ruling, be compelled to
approach this court at substantial expense to reclaim
his right to be heard.
{12] The legislature has bestowed on CCMA
commissioners the power to rescind their rulings of their
own accord. This does not readily deny commissioners
their statutory powers. When the commissioner had to
determine the rescission application he had the power
to rescind his ruling based on his knowledge of the
presence of Faltein at the CCMA when his case was
called. He also had the authority to base his decision
on the application before him. He had to choose the
power to exercise and he elected to rescind his own
ruling of his own accord. He can therefore not be faulted
for preferring rescinding his ruling of his own accord
over basing his rescission ruling on the opposed
rescission application before him.
{13] Ideally, the arbitrator should have exercised his
power to rescind his ruling of his own accord soon after
realizing that he had acted erroneously by dismissing
the third respondent's matter. However, the
commissioner's delay and the filing of the rescission
application did not oust the commissioner's power to
rescind his dismissal ruling of his own accord. I
Page 10
therefore find the commissioner's finding reasonable
and consistent with s144(a) of the LRA."
Page 11
[31] In the matter of PT Operational Services (Pty) Ltd v Retail & Allied
Workers Union on behalf of Ngweletsana (2013) 24 ILJ 1138 (LAC) the
Court held that the doctrine of functus officio applied to the actions of CCMA
commissioners "except where the LRA showed a contrary intention, as it
does in s144. They therefore have a limited right to revoke their own
decisions".
[32] The commissioner's ruling of 8 June 2023 is correctly described as a process
ruling. That ruling does not have the consequence that the commissioner had
finally or fully exercised or performed his functions or duties in relation to the
merits of the alleged unfair dismissal dispute.23 The commissioner's further
process ruling of 23 August 2023, issued by the commissioner of his own
accord and following engagement with the parties, did not require an
application to vary or rescind the earlier process ruling of 8 June 2023.
[33] The Notice of Motion refers to relief sought in relation to the arbitration award
dated 19 September 2023. The Notice of Motion does not refer to the 23
August 2023 process ruling and does not expressly seek any relief in relation
to the 23 August 2023 process ruling.
[34] The applicant and the first respondent concluded a pre-arbitration minute
dated 6 June 2023.24 Parties are bound by a pre-arbitration minute and its
terms. In Mbeje and Others v Department of Health Kwa-Zulu Natal and
Others25 the LAC per Nkutha-Ntontwana JA held:
"[18] The binding nature of a pre-arbitration minute is
well accepted. Like a pre-trial minute, a pre
arbitration minute " ... is a consensual document
which binds the parties thereto and obliges the
23 PT Operational Seivices (Pty) Ltd v Retail & Allied Workers Union on behalf of Ngweletsana
(2013) 24 ILJ 1138 (LAC) at paragraphs 27 and 37
24 Record Volume 1, pages 55 - 68
(2013) 24 ILJ 1138 (LAC) at paragraphs 27 and 37
24 Record Volume 1, pages 55 - 68
25 Mbeje and Others v Department of Health Kwa-Zulu Natal and Others (DA33/2022) [2024]
ZALAC 38; [2024] 11 BLLR 1111 (LAC); [2024] 45 ILJ 2681 (LAC) (22 August 2024)
[arbitrator] (in the same way as the parties'
pleadings do) to decide only the issues set out
therein. In South African Breweries (Pty) Ltd v
Louw, this Court per Sutherland JA, suitably
restated the purpose of a minute as follows:
"The chief objective of the pre-trial conference
is to agree on limiting the issues that go to trial.
Properly applied, a typical minute - cum .,..
agreement will shrink the scope of the issues to
be advanced by the litigants. This means
axiomatically, that a litigant cannot fall back on
the broader terms of the pleadings to evade the
narrowing effect of the terms of a minute. A
minute, quite properly, may contradict the
pleadings, by, for example, giving an admission
which replaces an earlier denial. When, such
as in the typical.retrenchment case, there are a
potential plethora of facts, issues and sub
issues, by the time the pre-trial conference is
convened, counsel for the respective litigants
have to make choices about the ground upon
which they want to contest the case. There is
no room for any sleight of hand, or clever
nuanced or contorted interpretations of the
terms of the minute or of the pleadings to sneak
record back in what has been excluded by the
terms of a minute. The trimmed down issues
alone may be legitimately advanced.
Necessarily, therefore, the strategic choices
made in a pre-trial conference need to be
carefully thought through, seriously made, and
scrupulously adhered to. It is not open to a
court to undo the laces of the strait-jacket into
which the litigants have confined themselves.""
Page 12
Page 13
[35] The applicant, the first respondent and the commissioner were bound by the
pre-arbitration minute of 6 June 2023. The process ruling of 23 August 2023,
is consistent with and gives effect to the binding pre-arbitration minute of 6
June 2023.
[36] As at the date of the conclusion of the pre-arbitration minute (6 June 2023)
the applicant, with the benefit of legal advice, accepted and agreed that "there
is no need for all of the evidence to be reheard at arbitration as a transcript
of the evidence that was led at the previous arbitration is available".26 In
addition, the applicant accepted that an arbitrator would determine the matter
on the transcript of the previous arbitration proceedings and the bundles of
documents that were placed before the previous arbitration proceedings and
in addition that there "will be no need to lead any further evidence".27
[37] At the time of the conclusion of the pre-arbitration minute (6 June 2023) the
applicant accepted and agreed and in fact required the commissioner to
determine a number of issues, including whether or not the applicant was
guilty of the allegations of misconduct against him and whether or not he was
unfairly dismissed. This necessarily and quite plainly means that the applicant
then (as at 6 June 2023) accepted and agreed that the commissioner need
not hear oral evidence afresh and that the absence of observing the
demeanour of the witnesses whose evidence the commissioner was to
consider would not have the result that the applicant is denied the right to a
fair hearing, including the right to a fair trial of the issues. which the pre
arbitration minute requires the commissioner to decide. Differently put, the
applicant had a full appreciation that an observation as to the demeanour of
witnesses would not come into play. This, quite properly so, did not present
as a hurdle, let alone an insurmountable hurdle, to the commissioner, where
necessary, preferring one version as more probable than another and more
necessary, preferring one version as more probable than another and more
generally to a fair trial of the issues.
[38] A practical consequence of the contention that the parties were bound by the
8 June 2023 process ruling is to give effect to a process ruling which in
26 Record Volume 1, page 56, paragraph 8
27 Record Volume 1, page 56, paragraph 9
Page 14
material respects was in defiance of the binding pre-arbitration minute.
These contentions seek to undermine a binding pre-arbitration minute and
impermissibly elevate process rulings, which have no impact as to the merits
and a genuine right to be heard, to the principal building blocks of a right to a
fair trial of the issues.
[39] In the result, the arbitration proceedings which culminated in the arbitration
award dated 19 September 2023 under CCMA reference number
WCET19449-22 are not a nullity.
The Arbitration Award
[40] In relation to allegation 1 (the Wood transaction), the commissioner records,
inter alia, the following:
"63. The respondent's case about the first a/legation of
misconduct related to the wood transaction, is that
the applicant had certain fiduciary duties to the
respondent and that he acted in breach of his duty
by offering to buy the wood from lsipani
Construction when he should have known that the
transaction would create a conflict of interest. The
question therefore is whether the applicant had a
fiduciary duty and whether there was a conflict of
interest in him approaching lsipani Construction.
64. The applicant went on a site visit when he made the
offer to purchase the wood. He was willing to pay
up to R20 000.00. He paid R11 000.00 to have the
wood removed. Eventually a wine rack was made
from the wood. The wood was therefore not
valueless as the applicant wished to portray. The
applicant made the offer in the presence of Messrs
Hilton and Frankeiss. On the evidence neither is
more senior than the applicant. The evidence was
not that, even if assumed they carried authority as
representatives of the client, that he asked them.
He spoke to the lsipani representative to whom he
made the offer. A month and a half later, he told Mr
Van Rensburg that he made the offer to purchase
the wood. The wood was shortly thereafter
salvaged when the house was torn down. On 12
October 2018, the applicant informed Mr
Shanmugham about the wood transaction. Part of
the applicant's case was that ownership had not
passed to him in July. The wood might have been
used in another house that was going to be
restored. It was not used in that restoration project.
65. Three of the applicant's seniors testified that the
first person he should have informed of, even his
intention to purchase the wood, was Mr
Shanmugham. As it is, he was the last person to
be informed. All three were of the opinion that the
applicant was wrong. The only party who says that
the applicant did nothing wrong is the applicant.
That the applicant agreed with Rudy Rutters to
store the wood until a final determination as to
whether it would be used in the restoration project,
does not take away from the facts that the applicant
made the offer to buy the wood, he paid
R11 000.00 and the last person he informed about
this was Mr Shanmugham.
66. The applicant's closing submissions, in referring to
the Forensic Report that Mr Shanmugham
commissioned to investigate the transaction, the
suggestion is that the report exonerated the
applicant from wrongdoing. That is not so. I agree
that the report states that he did not hide the fact
that he bought the wood and informed at least three
other Sanlam employees and Mr Rutters.
Page 15
However, the report found that the applicant should
have known that the transaction could place him in
a precarious position and that he should have
asked permission from Mr Shanmugham before
salvaging the wood.
67. The applicant conceded that as Head of Sanlam
Properties he held considerable responsibility as a
Sanlam Investment employee. He knows that he
would face conflicts of interest in his daily activities
and conceded that his employer trusted him to take
the correct decision. In this case the applicant did
not think that he needed to ask permission from Mr
Shanmugham. Thus, the rule or standard of
conduct expected was not to place oneself,
particularly such a senior employee in a position
that could amount to a conflict of interest. This is
both reasonable and necessary. The applicant had
30 years of experience in the financial field where
trust and transparency are very important. The
reference to DIKOBE vs SUN CITY (JA) 45/20115)
[2016] SALAC 67 does not support the applicant's
case. The matter was about whether there was a
rule prohibiting possession and use of certain
vouchers by the employee. The facts are distinctly
different. I do not agree with the submission that
the applicant put Sanlam's interests first. He did
not when he made the offer to buy the wood. Had
the applicant gone to Mr Shanmugam to indicate
that he wanted to buy the wood, this would not have
been an issue. The respondent did not accuse him
of dishonesty and no witness, apart from the
applicant, testified that there were such rumours.
Not even the Forensic Report referred to possible
dishonesty.
Page 16
68. I therefore agree, that because the applicant
conceded that he had certain fiduciary duties, that
his fiduciary duty, which is implied in his contract of
employment, covers the issue of conflict of interest
and sets the rule or standard of conduct. Even if
there was no written policy, it would be reasonably
expected of the applicant to have been aware of the
expected standard of conduct. The applicant acted
contrary to what was expected of him in this regard.
No explanation was given why he could not have
spoken any earlier to Mr Shanmugham about the
matter. He spoke to him at a time when it was
already a done deal. The commission of the
misconduct complained of was proven. Nobody
thinks that the applicant was dishonest. The
commission of the misconduct complained of was
proven."28
Page 17
[41] In relation to the second allegation the commissioner records, inter alia, the
following:
"69. The second allegation of insubordination I
insolence I disrespect etc., was presented by the
respondent by way of Mr Shanmugham's
recollection of conversations with the applicant and
reference to email correspondence. It was testified
that the applicant either bypassed Mr Shanmugam
or questioned his authority. Nine incidents were
testified about. In this regard there can be no
dispute that there is a relevant rule or standard of
conduct, that it is reasonable and that the
respondent is aware of this. The conduct
complained of often finds its way into an employer's
28 Pleadings, pages 28 and 29
disciplinary code. It is conduct that is referred to in
Schedule 8. The question then is whether the
applicant acted in breach of this, or these rules as
stated in the notice to attend the disciplinary
hearing. What inference could be drawn from the
evidence? The email correspondence relied on by
the respondent, was not disputed, neither the
content of the emails, nor the identity of the
recipients in those cases where emails,
correspondence from the applicant was relied
upon. The applicant's case was that he never
acted inappropriately and there was no need to
always send correspondence to his manager.
70. The applicant did not dispute Mr Shanmugham's
evidence about his comment during the very first
meeting. Mr Shanmugam did not simply laugh this
comment off. He interpreted this as an aggressive
comment. Mr Shanmugham 's evidence was that,
at the time, he was trying to build rapport with the
team and get buy-in from them. It seems that his
style is not to micro-manage nor to deal with people
in a way that they are constantly monitored and
given warnings.
72. . .. I am unable to criticise any of the respondent's
four witnesses. The three line-managers to the
applicant, Messrs Shanmugham, Naidoo and Roux
corroborated each other's versions where
applicable. All three stood by their criticism of the
applicant's conduct. Ms Brink's version a/so
corroborated certain aspects of both Mr Roux and
Mr Shanmugham's evidence. In his closing
submissions Mr Geldenhuys submitted that Mr
Page 18
Shanmugham lied under oath. I do not agree. The
applicant, basically a single witness because his
two witnesses did not necessarily support his
version in all aspects and could not corroborate his
version. He may not have lied or made false
statements, but his version amounts to a bald
denial of wrongdoing in a case where he should
have explained his actions and failed to do so.
There were also minor aspects of the applicant's
case that were not put to the respondent's
witnesses. The applicant's version is therefore
evaluated with circumspection.
81. At this level of seniority, it is imperative that people
work together to further their employer's interests.
They are after all spearheading the activities. I
accept that such seniority is also accompanied by
years of experience, know-how and institutional
knowledge and that there will be differences of
opinion,. even arguments. But, the reporting lines
must still be honored so that the top structure does
not become dysfunctional. There should not be a
need to remind senior colleagues of this obligation.
The overall impression is that the applicant
disregarded Mr Shanmugham's authority over him.
One implication of not having "kept him in the loop",
might have caused embarrassment to Mr
Shanmugham and made him be seen as
incompetent if he was unable to answer queries in
respect of his domain. Part of the applicant's duties
was to keep him so "in the loop". I hold that the
commission of the misconduct as set out in the
second allegation of misconduct as [was] put to the
Page 19
applicant, was proven, particularly in the sense that
the applicant's behaviour had a pattern of showing
disregard for Mr Shanmugham's authority. He did
not challenge him outright, but clearly did not wish
to subject himself to his newly appointed
manager's authority."
Page 20
[42] In relation to the third allegation commissioner's arbitration award records,
inter alia, the following:
"82. The third allegation of misconduct deals with rules
and standards of conduct which the applicant
should have been aware of In fact, it relates to
issues that are extremely topical. San/am's
history is known. It was known that many
Afrikaner white men ran the institution. It seems
even as late as the time of the arbitration hearing,
there were still transformation issues plaguing the
Respondent. One glaring example is the Propco
membership. The applicant wished to make out a
case that he created an inclusive environment.
The witness he called, Manka Sebatian, testified
that people were still speaking Afrikaans in the
Sanlam Properties section. This was in breach of
the clear policy to use to English as the workplace
medium of communication. I do not agree with the
submission that she corroborated the applicant's
version. She did not testify that the department
complied fully with the policy, as was submitted.
The matter must be viewed against the legacy of
Apartheid and the ongoing calls for transformation
in business. Ms Brink's evidence about the
transformation strategy and the steps being taken
to sensitise employees to diversity was not
contested.
83. In these circumstances where the applicant must
have been very aware of pressure regarding
transformation and diversity, he and his team
attended a one-day workshop diversity training on
25 March 2019. The Exco members had
previously done the training to set an example and
to lead from the top. The applicant left the
workshop early, citing as reason an urgent site
meeting in New/ands. He was informed that the
Stefanutti stocks MD was highly upset. What
about, was not explained, neither during evidence
nor in the closing submissions. The applicant's
version was that Stefanutti stocks were
threatening to down tools and leave the site. The
applicant and one Ralph went to the site at about
14h30. The applicant went to the site and gave
certain verbal assurances that satisfied the MD, it
was testified. There is no merit in the submission
that had the applicant not gone to the site, he
would have been disciplined. He was attending a
workshop that his employer saw as very
necessary and important. Nobody else, but the
applicant thinks that he acted correctly by leaving
the workshop early.
84 Ms Brink's evidence that the after-lunch session
was critical, was not disputed. The applicant
testified that the workshop presenter said that the
afternoon session would not be critical, cannot be
accepted. Had that been the case, the presenter
would have been called as witness or at least
some agenda to indicate the sessions of the day
would have been presented as evidence. This
behaviour did not demonstrate a commitment to
transformation and diversity that the employer
Page 21
was asking from him. This is further confirmed by
his attitude about the "power hour'' sessions. Had
he been serious to comply, he could have
attended such a session.
85. Ms Brink's evidence of having to deal with the
applicant after grievances were laid about
transformation issues, was not questioned.
Neither was her evidence that the contract of an
African graduate was prematurely terminated and
the person paid out the balance of the contract
due to issues between the graduate employee
and the applicant related to inclusivity issues.
These incidents were not the reason for the
dismissal but were relied on to demonstrate the
applicant's pattern of workplace behaviour
regarding transformation and diversity. The
inference, given the past history, the continued
use of Afrikaans and not English as the lingua
franca and this recent conduct is that the applicant
did not display an attitude that he was serious
about transformation and diversity issues within
Sanlam. As a very senior employee it was
incumbent on him to set an example. He did not.
86. The last issue to determine regarding the
allegations of misconduct is the reason why Mr
Shanmugam was disrespected or bypassed. I had
already found that the Applicant disrespected his
authority over him. Mr Shanmugham's evidence
was that he did not know what motivated the
applicant. He did some introspection and thought
that he is competent otherwise he would not have
been appointed as the CEO. He then thought that
perhaps it was his race.
Page 22
87. Much reliance was placed on Ms Sebatian's
evidence about her relationship with the applicant.
She was junior to him. She testified about her
relationship with the applicant. She could not
comment on the applicant's relationship with Mr
Shanmugham. The dynamics in these two
relationships were completely different. In the one
the applicant was the senior, in the other, he was
the junior and had to yield to authority. The
applicant's evidence was that he did not disrespect
his manager. His manager though felt that he was
disrespected. After reflecting, he thought that the
only reason could be his race. The applicant's
submissions are that the race a/legation was an
afterthought, that the allegation is defamatory and
has no rational basis. Mr Shanmugham did not
testify that the applicant is a racist. During his
cross-examination, it was pointed out to him that he
might be mistaken in his perception. The applicant
also did not testify that. His version based on the
denial that he did not disrespect Mr
Shanmugham's authority. The accusation is that
the applicant " ... excluded, by-passed or sidelined
Mr Shanmugam as a person of colour'. This is
specifically in reference to the allegations set out in
the second allegation related to
insubordination/insolence/disrespect etc. as
stated above, the applicant gave no reasonable
explanation for his actions. If I understand his
argument, it is that Mr Shanmugam fabricated the
race issue to bolster the respondent's case. He is
a liar, it is submitted. Many of my findings were
based on inference and the impressions left by the
evidence presented. I already commented above
Page 23
on questions posed during cross-examination, in
which the applicant's case was shown to be that, it
is Mr Shanmugam who is wrong and that he is not
a reasonable manager. This might mean many
things. The applicant clearly portrays Mr
Shanmugham as the problem. The fact is, the
applicant's conduct impacted on Mr Shanmugam
and made him question his worth and ability. Given
my findings above about the applicant's
demonstrated attitude about transformation,
inclusivity and diversity in the workplace, coupled
with the bare denial and the fact that Mr
Shanmugham's impressions are his valid
impressions, and it must be accepted that his
impression of the pattern of behaviour was not a
knee-jerk reaction or fabrication to somehow "get"
the applicant, I hold that the respondent's version
in this regard is accepted as more probable.
88. I hold therefore that the commission of the
misconduct complained of was proven. Was
dismissal the appropriate sanction? I bear in mind
that the applicant has throughout the proceedings
portrayed himself as the only one who was correct.
He was given ample opportunity to reflect, yet
never conceded that somehow he might have been
wrong. According to him, his three managers have
their own views, particularly Mr Shanmugham, as
he stated during cross-examination. He thinks that
Mr Shanmugham, is/was not a reasonable
manager as was stated to him during his cross
examination. This was repeated in the closing
submissions. There is no reliable evidence that Mr
Shanmugham is not a good manager. As he
testified, he was appointed in the position because
Page 24
his superiors were of the opinion that he was up to
the challenge. This was not challenged. He also
stated that it was a difficult decision, especially
considering the applicant's years of service."29
Relevant Legal Principles
Page 25
[43] The relevant legal principles are well known. Those principles were restated
in Herholdt vs Nedbank Ltd and Congress of South Africa Trade Union
2013(6) SA 224 (SCA) [2013 (11) BLLR 1074 (SCA)]. In that matter the Court
held:
"[25] In summary, the position regarding the review of CCMA
awards is this: A review of a CCMA award is permissible if
the defect in the proceedings falls in one of the grounds in
S145(2)(a) of the LRA. For a defect in the conduct of the
proceedings to amount to gross irregularity as contemplated
by s145(2)(a)(ii), the arbitrator must have misconceived the
nature of the enquiry or arrived at an unreasonable result. A
result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that was before
the arbitrator. Material errors of fact, as well as the weight
and relevance to be attached to particulars facts, are not in
and of themselves sufficient for an aware to be set aside but
are only of any consequence if the effect is to render the
outcome unreasonable"
[44] In the matter of Nyathikazi vs Public Health and Social Development
Bargaining Council and others (2021) 42 ILJ 1686 and at paragraph 21 the
Court held:
"[21] After the decision in Sidumo and another vs Rustenburg
Platinum Mines Ltd and another 2008 (2) SA 24 CC and the
further explication in Heroldt vs Nedbank Limited 2013 (6) SA
224 (SCA), it is clear that our law dictates that an award
delivered by and Arbitrator will only be considered to be
unreasonable if it is one that a reasonable arbitrator could
not reach on all the material that was before him or her. A
material error of fact and the particular weight to be attached
to a particular fact may in and of itself not be sufficient to set
to a particular fact may in and of itself not be sufficient to set
aside the award but will only be done if the consequence
thereof is to render the ultimate outcome unreasonable".
29 Pleadings, pages 34 - 35; Arbitration Award paragraphs 86 - 88
Page 26
[45] In the matter of Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mining) v
CCMA and Others [2014] 1 BLLR 20 (LAC) and at paragraph 21 the Court
held:
"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 vs New 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, piece meal analysis. As soon as it is done in a
piece meal 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 applications. 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 guess work."
[46] In CUSA v Tao Yang Metal Industries and Others [2009] 1 BLLR 1 (CC)
the Court held:
"{65] Consistent with the objectives of the LRA,
commissioners are required to "deal with the substantial
merits of the dispute with the minimum of legal formalities."
This requires commissioners to deal with the substance of a
dispute between the parties. They must cut through all the
claims and counterclaims and reach for the real dispute
between the parties to petform this task effectively.
Commissioners must be allowed a significant measure of
latitude in the performance of their functions. Thus, the LRA
permits commissioners to "conduct the arbitration in a
manner that the commissioner considers appropriate. But in
doing so, commissioners must be guided by at least 1
doing so, commissioners must be guided by at least 1
considerations. The first is that they must resolve the real
dispute between the parties. They must do so expeditiously.
And, in resolving the labour dispute, they must act fairly to all
the parties as the LRA enjoins them to do".
[47] In the matter of Securitas Specialised Services (Pty) Ltd v Commission
for Conciliation, Mediation & Arbitration & Others (2021) 42 ILJ 1071
(LAC) the Court held:
"[19] The test for review is this: "Is the decision reached by
the arbitrator one that a reasonable decision maker could not
reach?" To maintain the distinction between review and
appeal, an award of an arbitrator will only be set aside if both
the reasons and the result are unreasonable. In determining
whether the result of an arbitrator's award is unreasonable,
the Labour Court must broadly evaluate the merits of the
dispute and consider whether, if the arbitrator's reasoning is
found to be unreasonable, the result is, nevertheless capable
of justification for reasons other than those given by the
arbitrator. The result will be unreasonable if it is entirely
disconnected with the evidence, unsupported by any
evidence and involves speculation by the arbitrator.
[20] This court has eschewed a piecemeal approach to a
review application by the Labour Court. The proper approach
is for the Labour Court to consider the totality of the evidence
in deciding whether the decision made by the arbitrator is one
that a reasonable decisionmaker could make."
Page 27
[48] The review test has been recently restated in the matter of Makuleni v
Standard Bank of SA (Pty) Ltd & Others (2023) 44 ILJ 1005 LAC. In
Makuleni the Court restated the review test as follows:
"{4] The import of these remarks demands a reflection in
order to digest the essence of the exercise that a
commissioner embarks upon. The court asked to review a
decision of commissioner must not yield to the seductive
power of a lucid argument that the result could be different.
The luxury of indulging in that temptation is reserved for the
court of appeal. At the heart of the exercise is a fair
reading of the award, in the context of the body of
evidence adduced and an even-handed assessment of
whether such conclusions are untenable. Only if the
conclusion is untenable is a review and setting aside
warranted.
[13] The Labour Court's view of the case differed from that of
the commissioner. As shall be addressed hereafter there are
the commissioner. As shall be addressed hereafter there are
serious flaws in the reasoning articulated in the judgment.
However, what is immediately deserving of emphasis is that,
even if the perspective of the Labour Court is plausible and
reasonable, that is an insufficient reason to displace the
award in terms of the review test addressed above. To meet
the review test, the result of the award has to be so
egregious that, as the test requires, no reasonable
person could reach such a result. In our view, no material
criticism can be advanced of the award that meets the
threshold test for review."
(emphasis added)
Page 28
[49) It is in light of these principles that the commissioner's award and the
arbitration proceedings ought to be assessed.
The Wood transaction
[50) The evidence that served before the commissioner included the following:
50.1 On 13 July 2018, the applicant made an offer to lsipani, the contractor in
the Village Square development, to acquire Oregon Pine wood from a
house on the site which was due to be demolished 30;
50.2 Mervyn Shanmugam (Shanmugam) is the applicant's line manager 31 ;
50.3 Wayne Hilton (Hilton) and Haydn Franckeiss (Franckeiss) were present on
a site visit when the applicant told lsipani that he wanted to acquire the
wood 32 •
'
50.4 On 31 August 2018, the applicant told Neil van Rensburg (van Rensburg)
the chairman of Propco that he had made an offer to acquire the wood 33;
50.5 The fact of the presence of Hilton and Franckeiss is irrelevant, the
applicant ought to have first approached Shanmugam "saying to him, this
is what I want to do" and obtained prior permission 34;
50.6 Mr van Deventer (van Deventer), a contractor appointed by the applicant,
removed the wood during the period 3 - 7 September 2018 35;
30 Record, Volume 6, page 279, lines 17 - 23 and
31 Record, Volume 6, page 24. lines 13 -16; page 342, lines 4 - 5
32 Record, Volume 6, page 279, lines 17 - 23
33 Record, Volume 6, page 282, lines 22 - 263
34 Record, Volume 6, page 28, lines 7 - 19
35 Record, Volume 6, page 281, lines 1 - 6
Page 29
50. 7 The applicant made payment to van Deventer for services at the Geelhuis,
invoice amount R11, 160.00 36;
50.8 When an employee is attending to their employer's business and an
opportunity arises to obtain a personal benefit, that is a potential conflict of
interest 37•
'
50.9 Before taking any steps in relation to the wood the applicant ought to have
gone to Shanmugam, his superior, to seek permission 38 ;
50.10 The Oregon Pine wood had some value, the wood was not without value39;
50.11 The value of the wood is not the principal concern, it is the process that
the employee needs to follow in handling a conflict of interest 40 ;
50 .12 On 12 October 2018 the applicant informed Shanmugam of the wood
transaction, that he acquired the wood and removed the wood 41 ;
50.13 As the Head of Sanlam Properties for several years, the applicant was in
a position of senior management with significant responsibility 42;
50.14 The applicant knew that in his position, managing property, conflicts of
interest would arise 43 ;
50.15 The first respondent needed to trust the applicant to make the right
judgment calls when conflicts of interest arose 44 ;
36 Record Volume 6, page 333, lines 1 - 4
37 Transcript page 326, lines 8 - 23
38 Record, Volume 6, page 28, lines 1 - 6
39 Record, Volume 6, page 194, lines 4 - 5, and page 339, lines 16 -17
40 Record, Volume 6, page 29, lines 25 - 29
41 Recor_d, Volume 6, page 283, lines 1 - 5
42 Record Volume 6, page 324, lines 1 - 9
43 Record Volume 6, page 324, lines 10 - 11
44 Record Volume 6, page 325, lines 1 - 10
Page 30
50.16 Whenever the applicant is attending to the first respondent's business and
an opportunity arises to obtain a personal benefit that is a potential conflict
of interest 45;
50.17 The first respondent has an interest in not having its employees acquiring
benefits from situations in which they are acting on behalf of the first
respondent 46;
50.18 When in doubt an employee has to disclose a circumstance involving a
potential conflict of interest to the first respondent 47 ;
50.19 At a meeting on 12 October 2018, the applicant informed Shanmugam of
the wood transaction, that he had acquired the wood 48;
50.20 The applicant confirmed that there is value to the wood 49;
50.21 At the point when the applicant made the decision to acquire the wood, to
make the offer for the wood, he could see that there was a potential conflict
of interest and that is why he mentioned it to Hilton and Franckeiss.50 Hilton
and Franckeiss are Fund Managers of the Sanlam Capital Fund;
50.22 At the point in time when he made the offer, the applicant was going to
acquire the wood for himself 51 ;
50.23 As a matter of principle, a person managing property and visiting property
developments almost on a daily basis cannot be seen to take any benefit
for himself without attaining permission 52.
45 Record Volume 6, page 325, lines 11 -12
46 Record Volume 6, page 325, lines 19 - 21
47 Record Volume 6, page 326, lines 14 - 22
48 Record Volume 6, Page 333, lines 12 - 19
49 Record Volume 6, Page 339, lines 15 - 19
50 Record Volume 6, page 340, lines 1 - 5
51 Record Volume 6, page 341, lines 7 - 11
52 Record Volume 6, page 341, lines 12 - 18
Page 31
[51] The evidence referred to above includes material parts of applicant's version
The applicant's version also included the following:
51.1 The Yellow House contained original Oregon Pine flooring which would be
destroyed during the demolition.53
51.2 On 31 July 2018, he offered to buy the wood flooring from lsipani.54
51.3 He has an affinity for wood.55
51.4 Hilton and Franckeiss were present on a site visit when the applicant told
lsipani that he wanted to acquire the wood. Hilton and Franckeiss are
Fund Managers of the Sanlam Capital Fund.
51.5 He does not think that he would have done things differently56.
51.6 In an electronic mail dated 11 February 2019 to Shanmugam copied to
Kilkenny, Warren Young, Roux and Naidoo, Pieter Joubert (Joubert) the
first respondent's internal Legal Counsel wrote, inter a/ia, the following:
"If the decision is that Andre may not retain the timber,
Sanlam Life needs to take possession of the timber and
compensate Andre for the cost to remove and store the
timber to date. "57
[52] The material facts that served before the arbitrator may be summarised as
follows:
52.1 the applicant was a senior employee with some 30 years of experience
and was aware that in the execution of his duties he would from time to
time face potential conflicts of interest;
52.2 on 13 July 2018 the applicant visited the site and made an offer to acquire
the Oregon Pine wood;
53 Record Volume 6, page 279, lines 10 - 19
54 Record Volume 6, page 279, lines 10 - 19
55 Record Volume 6, page 279, lines 17 - 19
56 Record Volume 6, page 342, lines 11 - 14
57 Record, Volume 3, page 78
Page 32
52.3 at the point in time when he made the offer, the applicant was going to
acquire the wood for himselfss;
52.4 at the point when the applicant made the decision to acquire the wood,
to make the offer for the wood, he could see that there was a potential
conflict of interest;
52.5 Hilton and Franckeiss were present when the applicant made the offer to
acquire the wood;
52.6 Hilton and Franckeiss are not the applicant's line manager;
52. 7 on 31 August 2018 the applicant told van Rensburg that he had made an
offer to acquire the wood;
52.8 the wood in question did have some value;
52.9 the applicant engaged the services of a private contractor (van Deventer)
to salvage and remove the wood from the site.
52.10 the removal of the wood from the site took place during the period 3
September to 7 September 2018;
52.11 an employee attending to the employer's business and when an
opportunity arises to obtain personal benefit faces potential conflict of
interest;
52.12 the applicant knew that in his position managing property, conflicts of
interest would arise;
52.13 a person in the applicant's position cannot be seen to be taking any
benefit for himself without attaining prior permission;
52.14 Shanmugam was the applicant's line manager, the applicant ought to
have obtained prior permission from Shanmugam in relation to the wood
transaction;
58 Record Volume 6, page 341, lines 7 - 11
Page 33
52.15 the applicant did not seek Shamugam's prior permission in relation to the
wood transaction;
52.16 the applicant first informed Shanmugan of the wood transaction on 12
October 2018, several months after the transaction;
[53] The material facts are not genuinely in dispute.
[54] It is submitted on behalf of the applicant, inter alia, that the commissioner
"failed to properly assess the evidence and to resolve material disputes of
fact which required him to have regard to inter alia, the credibility of the
witnesses. It is submitted that it was not possible for him to properly
determine the credibility of the witnesses, their candour and demeanour and
the calibre and cogency of their evidence without an opportunity to observe
them personally. This is particularly so where his findings are based on
"inference and the impression left by the evidence presented. "59
[55] On the applicant's own version
55.1 he visited the site on 13 July 2018, made an offer to acquire the wood,
when he did so he was going to acquire the wood for himself 60;
55.2 he informed van Rensburg (the Chairman of Propco) on 31 August 2018
that he had made an offer to acquire the wood, he engaged a private
contractor, during the period 3 to 7 September 2018 the wood was
salvaged and removed by the private contractor engaged by him; and
55.3 the applicant knew that in his position, managing property, conflicts of
interest would arise 61;
55.4 the first respondent needed to trust the applicant to make the right
judgment calls when conflicts of interest arose 62;
59 Applicant's Heads of Argument, paragraph 33
60 Record Volume 6, page 341, lines 7 - 11
61 Record Volume 6, page 324, lines 10 - 11
62 Record Volume 6, page 325, lines 1 - 10
Page 34
55.5 whenever the applicant is attending to the first respondent's business and
an opportunity arises to obtain a personal benefit that is a potential
conflict of interest 63;
55.6 the first respondent has an interest in not having its employees acquiring
benefits from situations in which they are acting on behalf of the first
respondent 64;
55. 7 when in doubt an employee has to disclose a circumstance involving a
potential conflict of interest to the first respondent 65;
55.8 he first informed Shanmugam on 12 October 2018.
[56] In addition, under cross-examination the applicant conceded that "It is a
matter of principle that a person managing property and visiting property
developments almost on a daily basis can't be seen to take any benefit for
himself without attaining permission"66
[57] It cannot reasonably be contended that the established facts as recorded
above could be undone or disturbed by observations as to candour or
demeanour of the witnesses who gave that evidence as captured in the
transcript that served before the commissioner. An observation, for example,
as to the applicant's candour or demeanour would not undo the established
facts that arise from his own evidence. In addition, the weight of the
established facts is not diminished by an absence of the commissioner
observing the witnesses personally and taking a view as to their candour and
demeanour.
[58] In the arbitration award the commissioner engages with the applicant's
version including that he made the offer to acquire the wood in the presence
of Hilton and Franckeiss67, that "part of the applicant's case was that
63 Record Volume 6, page 325, lines 11 -12
64 Record Volume 6, page 325, lines 19 - 21
65 Record Volume 6, page 326, lines 14 - 22
66 Record Volume 6, page 341, lines 12 - 18
67 Arbitration Award, paragraph 64
Page 35
ownership had not passed to him in July''68 , that "the wood might have been
used in another house that was going to be restored' 69 and that "the applicant
agreed with Rudi Rutters to store the wood until a final determination as to
whether it would be used in the restoration projecf' 70 .
[59] It is contended that the commissioner "completely ignored or dismissed' 71
the evidence of Rudolph Rutters (Rutters). This contention is not sustainable.
The commissioner refers to Rutters and summarises his evidence at
paragraphs 59 and 60 of the arbitration award. Rutters' evidence does not
disturb or undo the objective facts as to the alleged misconduct arising from
the Wood transaction. The facts of the conflict of interest, the applicant's
failure or refusal to avoid the conflict of interest and the applicant's failure or
refusal to disclose the proposed transaction to Shanmugam and to seek his
prior permission are not undone or disturbed by the evidence of Rutters.
[60] It is contended that Joubert's electronic mail was ignored._This contention is
unsustainable. Joubert's electronic mail of 11 February 2019 does not deal
with the issue as to a conflict of interest and the applicant's obligations in
those circumstances. In any event, Joubert's electronic mail of 11 February
2019 does not dispute nor displace the established facts in the evidence that
served before the commissioner.
[61] The commissioner's survey of the evidence in relation to the Wood
transaction is consistent with the evidence that served before him. That
evidence included the evidence of the applicant himself and Rutters. Roux's
evidence included that Shanmugam should have been the first to be informed
of the proposed transaction and that the applicant should have sought
Shanmugam's prior permission. This is not a matter in which the transcript
reflects mutually exclusive or equally probable versions on the facts in
relation to the Wood transaction. Properly out, on the evidence that served
relation to the Wood transaction. Properly out, on the evidence that served
before the commissioner, it formed no part of the applicant's case that he did
68 Arbitration Award, paragraph 64
69 Arbitration Award, paragraph 64
70 Arbitration Award, paragraph 65
71 Applicant's Heads of Argument, paragraph 35
Page 36
not visit the site, that he did not make an offer to acquire the wood, that he
did not instruct a private contractor to salvage and remove the wood, that he
sought the permission of his direct superior (Shanmugam) prior to making an
offer to acquire the wood or that he was unaware that a potential conflict of
interest had arisen. In relation to the Wood transaction the material facts are
not genuinely in dispute. The evidence of the first respondent's witnesses on
the Wood transaction, Roux and Shanmugam, is entirely consistent with the
objective facts. In those circumstances it cannot reasonably be contended
that the commissioner made 'superficial findings' as to credibility. The
commissioner's findings as to credibility are firmly rooted in the evidence that
served before him.
[62) The commissioner's assessment that "The only party who says that the
applicant did nothing wrong is the applicant' is entirely consistent with the
facts that served before him. Self-evidently, the commissioner did not accept
the proposition that the applicant did "nothing wrong". Similarly, the
commissioner's assessment that the applicant did not "put Sanlam's interests
firsf' is grounded in and supported by the evidence that served before him.
[63) It is contended that "it is common cause that the first respondent did not have
a rule in place which regulated this issue. It was further accepted that this
issue had not arisen in the past which would account for the different
responses to the applicant's disclosures. " 72 These contentions are
unsustainable.
[64] As dealt with above, the evidence that served before the commissioner
establishes that the applicant is a senior managerial employee of the first
respondent. In the ordinary course of his duties the applicant is required to
avoid a conflict of interest. When a potential conflict of interest does arise the
applicant is required to put the interests of the employer first. The applicant
applicant is required to put the interests of the employer first. The applicant
knew of a conflict of interest in relation to the Wood transaction. The applicant
was required to inform Shanmugam, his direct superior, of the proposed
transaction and to seek his prior permission. The applicant did not do so and
only informed Shanmugam after the Wood transaction and some three
72 Applicant's Heads of Argument, paragraph 73. Record Volume 6, page 341, lines 12 - 18
Page 37
months later. The breach of the applicant's obligations to the first respondent
as his employer in relation to the Wood transaction is firmly established in the
evidence.
[65] In the arbitration award the commissioner expressly deals with the applicant's
fiduciary duties, the issue of conflict of interest and the standard of conduct
required of the applicant. In this regard, paragraph 68 of the arbitration award
records, inter a/ia, the following:
"I therefore agree that, because the applicant conceded
that he had certain fiduciary duties, that his fiduciary
duty, which is implied in his contract of employment
covers the issue of conflict of interest and sets the rule
or standard of conduct. Even if there was no written
policy, it would reasonably be expected of the applicant
to have been aware of the expected standard of
conduct. The applicant acted contrary to what was
expected of him in this regard".
[66] On the evidence that served before the commissioner, the applicant's
established misconduct in relation to the Wood transaction is serious
misconduct. The applicant as a senior managerial employee in the financial
services industry was obliged to avoid conflicts of interest and the first
respondent as his employer needs to trust that the applicant would make the
right judgment calls when conflicts of interest arise. The applicant as a senior
managerial employee did not put the interests of the employer first.
[67] There can be no serious suggestion that the established facts are other than
as set out above. That being the case, inferences are properly drawn from
the established facts. The commissioner, to the extent that he drew
inferences, did so on the basis of the established facts. In doing so, the
commissioner did not act improperly, nor did he misconduct himself in relation
to his duties as a commissioner. In the circumstances the commissioner's
Page 38
finding that the commission of the misconduct was proven 73, is grounded in
and properly supported by the evidence that served before him.
[68) On the evidence that served before the commissioner the applicant made an
offer to buy the wood on 13 July 2018 and informed Shanmugam of the wood
transaction on 12 October 2018. During December 2018 steps were taken to
institute a forensic investigation into the Wood transaction. Shanmugam
informed the applicant of the forensic report on or about 6 March 2019. In
relation to the Wood transaction, it cannot reasonably be contended that
there was any delay in the institution of disciplinary action and specifically the
disciplinary notice dated 16 April 2019.
[69) In relation to the Wood transaction there can be no serious or sustainable
contention that the commissioner's reasoning and findings are "entirely
disconnected with the evidence, unsupported by any evidence and involves
speculation" as contemplated in Securitas.74
The Second Allegation
Propco
[70) The evidence that served before the commissioner included the following:
70.1 Shanmugam was appointed to the position of CEO of the Alternatives
Business on 1 July 2018. Shanmugam took over from Ben Kodisang
(Kodisang).75 By that time, the applicant had been the Head of Sanlam
Properties for three years.
70.2 The applicant could not dispute nor deny that during Shanmugam's first
meeting with the whole team, he said words to Shanmuga to the following
effect: "don't try and do what your predecessor tried to do".76
73 Arbitration Award, paragraph 68
74 Securitas Specialised Services (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration
& Others (2021) 42 ILJ 1071 (LAC)
75 Record Volume 6, page 344, lines 10 - 15
76 Record Volume 6, page 344, lines 16 - 21
Page 39
70.3 Shanmugam testified that "of course it was disrespectfuf'.77
70.4 It was necessary for committees like Propco to be transformed and that
that was very much part of Shanmugam's mandate coming into the
position of CEO of the Alternatives Business.78
70.5 The applicant confirmed that the issue as to transformation is one of the
first questions potential investors might ask.79
70.6 Shanmugam had a number of discussions with the applicant in relation
to the composition of Propco; 80
70. 7 The applicant did say to Shanmugam that Propco already had good
people.s1
70.8 At the relevant time Propco comprised six white men, including the
applicant. s2
70.9 It was Roux's evidence that:
"So, for me, the thing is, what is very clear in our world is
that if you want build a successful business, diversity is
very, very important for us to get right as a business. So
therefore, whether the structure is right to say just people
of colour, just on its own merit, you know, you can talk
about that as well, but for me the reality is of diversity in
the, you know, in Propco will be of critical importance, of
critical standing to make sure that you create a successful
business.
77 Record Volume 6, page 144, lines 13 - 16
78 Record Volume 6, page 345, lines 5 - 12
79 Record Volume 6, page 345, lines 13 - 15
80 Record Volume 6, page 146, lines 18 - 28 and page 147, lines 1 - 11
81 Record Volume 6, page 146, lines 18-78, page 186, lines 20 - 24, page 187, lines 1 - 8 and
page 348, lines 4-9
82 Record Volume 6, page 32, lines 1 - 7
Sanlam comes from a history of being white Afrikaner
male, we all have to acknowledge that and I am just as
white and Afrikaans as everyone. But the reality is that
we need the diversity of all these types of things that I
have described now not so elegantly. But what I have
tried to say is that Propco would be a better place if it is
more diverse and that would include as I said, women,
colour, whatever it is and I think that Mervyn is correct in
driving that. "83
Page 40
70.10 Shanmugam's evidence was that he did not ask the applicant to put him
on Propco.84
70.11 The applicant was of the view that Propco had good people and that it
functioned efficiently. 85
70.12 The applicant's view was that Propco as currently constituted could
conclude its business in a relatively short period of time and specifically:
"My comment to him was, we function quite well as a
committee and the reason for that was we had very good
people so we probably finished meetings in two hours,
that would take four hours if you didn't have good
people."86
70.13 It was Shanmugam's assessment that the applicant at that stage was not
willing to change the composition of Propco and that, it would only change
if the applicant thought there was a good reason: "What it said to me was
that, you know, if he was unwilling, you know, to expand on ideas, that it
would only change if he thought there was a good reason, you know to
change it and you know only if he thought that we could change it. So, in
83 Record Volume 6, page 32, lines 7 - 25
84 Record Volume 6, page 186, lines 20 - 24 and page 187, lines 1-8
85 Record Volume 6, page 292, lines 19 - 24 and page 293, lines 1 - 12
86 Record, volume 6, page 292, lines 19 - 24 and page 293, lines 1 - 12
Page 41
that respect I felt that my view was not important at all. You know he was
basically having disregard for my opinion".87
[71) The commissioner's arbitration award on this score surveys the material
evidence before him. The commissioner's arbitration award reads, inter a/ia,
as follows:
"19. Mr Roux testified that Sanlam comes from a history
of white Afrikaner males being in charge. Diversity in the
Group and in all committees, including Propco has
become imperative to build a successful business. The
notion should not be that the people already on Propco
are good enough. Diversity includes people with different
skills, race groups and to include women. Propco would
be a better place if it was more diverse. Mr Shanmugam
was correct to drive that point. Mr Naidoo confirmed that
transformation is a very high priority in the financial
services industry. They need a more diverse and inclusive
Propco and all other committees ought to be looked at.
20. Mr Shanmugam testified that from the beginning he
had "quite a relationship" with the applicant. During the
first meeting he had with the team, when he asked for
input after his presentation, the applicant remarked "don't
do what you predesessor did". He thought at the time that
the response was slightly disrespectful. His task as the
newly appointed CEO was to improve the governance
structures and transformation within the business and to
attract clients. In a meeting soon thereafter about the
composition of Propco, that is run by six white males, he
said to the applicant that it must be transformed to
illustrate to the market that Sanlam has transformed to
attract third party funds. The applicant's opinion was that
Propco was already functioning, had very good people
87 Record, Volume 6, page 146, lines 18 - 28 and page 147, lines 1 - 11
and he saw no need to change it. From that he got the
impression of opposition to transformation, that the
applicant was unwilling to engage and that his views were
not important enough for the applicant. He assured the
applicant that transformation would involve thorough
consultations. He hoped that the relationship would
improve. It did not.
21. The applicant testified that he and Mr Shanmugham
had one or two maybe three discussions. In the first
meeting Mr Shanmugham asked him whether he could
put him on Propco. He responded that it was not within his
powers to do so, but he could request that he be made an
attendee. That he then did. That way Mr Shanmugham got
all Propco documents.
45. Mr Shanmugham, during cross-examination, denied
that he never had meetings with the applicant. They had
regular catch ups in addition to the Exco meetings when
the applicant gave feedback. He conceded that by March
2019 his view was not that dismissal need be resorted to.
Thereafter, he had more time to consider the situation. He
disagreed that he could not interfere with the applicant in
relation to his Propco activities. Propco manages
investments only. Applicant was a member of the
committee but was employed by Sanlam Investments not
Propco or Sanlam Properties. In accordance with the
Charter, responsibility filters down from Mr Roux to Mr
Naidoo, to himself and then to the applicant. The applicant
had to keep him up to date with decisions before going to
Propco. He denied that he asked the applicant to
{become] member of Propco. He asked that Propco be
transformed. He disagreed that the relationship between
him and the applicant started off on a good footing. The
Page 42
relationship was difficult since the beginning when the
applicant confronted him in front of everyone.
47. He did not deny that members of Propco are good. It
does need diversity though. A consultant was engaged to
review the governance process. Since the beginning he
wanted to get by-in. the applicant was not open to
discussions on transformation. He did not have
unreasonable expectations. He did expect the applicant to
keep him abreast of material changes."
Page 43
[72] The commissioner's survey of the material evidence is a fair reflection and
assessment of the evidence that served before him. The commissioner then
records the following:
"73. I cannot conclude that Mr Shanmugam asked the
applicant to get him onto Propco as a committee member.
I do accept that he raised the fact that the committee was
not diverse with the applicant. This was part and parcel of
Mr Shanmugam's mandate, to drive transformation or
improve corporate governance. The issue though is not
whether Mr Shanmugham asked to become a Propco
Committee member, the issue is about the applicant's
response. I agree that his response indicated opposition
to the idea of transformation in Propco. Mr Shanmugam is
entitled to his opinions and inferences. These are valid. I
am unable to conclude that he was oversensitive or
irrational in drawing conclusions from the interaction. The
applicant was of the opinion that Propco already had good
people and there was not need for transformation. He
clearly disregarded Mr Shanmugam's view. By the time,
he must have already known that Mr Shanmugham was
going to drive transformation within Alternative
Investments."
Page 44
[73] In the commissioner's assessment the "issue though is not whether Mr
Shanmugam asked to become a Propco committee member, the issue is
about the applicant's response, I agree that his response indicated opposition
to the idea of transformation in Propco." 88 The commissioner's assessment
is supported by the evidence that served before him.
[74] Allegation 2 is, inter alia, in the following terms:
"6.2 Notwithstanding your position as a senior
manager of the Company, you displayed
discriminatory conduct on the basis of race and/or
were grossly insubordinate and/or were grossly
insulant and/or failed to follow reasonable and
lawful instructions and/or disregarded the
Company's governance structures and/or were
disrespectful towards or undermined the authority
of Mr Shanmugam as your line manager, on
various occasions."
[75] The gravamen of allegation 2 includes disregard and disrespect for
Shanmugan and undermining Shanmugan's authority. The employer's
concern was with the applicant's conduct towards Shanmugam as his line
manager. A key part of Shanmugam's mandate as the newly appointed CEO
of the Alternative Business was driving transformation, which includes the
need for Diversity in relation to Propco. The first respondent's concern was
the applicant undermining his line manager as is recorded in allegation 2. 89
The allegation of misconduct does not turn on its wording or a construction
as to whether Shanmugam asked to become a member of Propco. The
evidence that served before the commissioner is a proper basis for the
commissioner's assessment that "the applicant was of the opinion that
Propco already had good people and there was not need for
transformation. "90
88 Arbitration Award, paragraph 3
89 Record Volume 2, page 1, paragraph 2
90 Arbitration Award, paragraph 73
[76] It is contended on behalf of the applicant that:
"62. The third respondent abdicates his responsibility to
resolve the dispute about whether Shanmugam asked to
become a member of Propco. This ultimately leads to the
irrational finding that "The issue though is not whether Mr
Shanmugam asked to be a Propco member, the issue is
about the applicant's response
11
. It is submitted that it is
not possible to assess the applicant's response in the
absence of determining what he was responding to.,,
[77] It is further contended on behalf of the applicant that:
"64. The wording of the charge turned directly on whether
Shanmugam asked to be placed on Propco. Accordingly,
in the absence of making a proper determination on the
nature of the discussion, it was unreasonable to impute an
anti-transformation flavour to the applicant's response. 1191
Page 45
[78] These contentions are misguided and unsustainable. As noted above, the
first respondent did indeed have concerns about the applicant's conduct.
Those concerns include the applicant's approach and attitude to
transformation in the business of the first respondent. Shanmugam is the
applicant's line manager. Shanmugam had concerns as to the composition
of Propco as it relates to Diversity. Shanmugam had a number of meetings
with the applicant on the composition of Propco. Shanmugam's evidence
includes that the applicant was unwilling to engage on changes to the
composition of Propco and that the applicant disregarded his views.92
[79] The record that served before the commissioner is a proper basis for the
commissioner to conclude as he did:
"I agree that his response indicated opposition to the idea
of transformation in Propco. Mr Shanmugham is entitled
to his opinions and inferences. These are valid. I am
91 Applicant's Heads of Argument, paragraphs 62 and 64
92 Record Volume 6, page 146, lines 18 - 28 and page 147, lines 1 - 11
unable to conclude that he was oversensitive or irrational
in drawing conclusions from the interaction. The applicant
was of the opinion that Propco already had good people
and there was no need for transformation. He clearly
disregarded Mr Shanmugham's view. By that time, he
must have already known that Mr Shanmugham was
going to drive transformation within Alternative
Investments. "93
Page 46
[80] The record that served before the commissioner is a proper basis for the
commissioner's assessment and conclusion that the applicant's response
"indicated opposition to the idea of transformation in Propco". That real and
actual concern informed the allegations of misconduct and that concern is not
masked or clouded by the wording of the allegation. The applicant had a
proper appreciation of the first respondent's concern on this score. The
contentions advanced on behalf of the applicant as to the wording of
allegation 2.1 are misguided.
[81] Under our law, in relation to the framing of allegations of misconduct, the test
is whether the employee is aware of the nature of the allegations against
them. In the matter of Pai/print (Pty) Ltd v Lyster N.O. & Others (2019) 40
ILJ 2047 (LAC) the Court held:
"[18] It has repeatedly been stated by this court that an
unduly technical approach to the framing and
consideration of allegations of employ misconduct
should be avoided."
(emphasis added)
[82] On the record that served before the commissioner it cannot reasonably be
contended that the applicant did not have an appreciation of the first
respondent's real concern or that the applicant did not have an opportunity to
prepare a defence.
93 Arbitration award, paragraph 73
Page 47
Congratulatory electronic mail (12 July 2018)
[83] In his arbitration award and in relation to the 'Congratulatory email' to the
team of 12 July 2018 the commissioner records, interalia, the following:
"7 4. This goes with the email to congratulate the team
on securing the R700mil from Alexander Forbes. Two
hours after having sent that email, the applicant
responded. His version is that he was known for being
abrupt and straightforward. His response was neither.
He clearly indicated to Mr Shanmugham that he would
decide whether there would be changes. It was not his
decision. His new line manager was responsible for
doing so and indicated that changes would happen
after consultation with all relevant people. There is no
evidence that anyone ever criticised the applicant,
Propco or Sanlam Properties of having a bad corporate
governance structure. There might well have been
ways to strengthen this. The applicant clearly showed
to his line-manager not to interfere. Messrs Roux and
Naidoo also expressed their view that the applicant was
wrong. They were not challenged in their views. That
Mr Shanmugam did not immediately take disciplinary
action against the applicant does not detract from what
happened. There should not be a need for senior
people to be constantly admonished or warned. "94
[84] The evidence that served before the commissioner includes the following:
84.1 On 12 July 2018, Shanmugam sent an electronic mail to everyone in the
Alternatives Business, 95 including the applicant. In that electronic mail
Shanmugam records, inter a/ia, his congratulations to the team. In this
electronic mail Sh_anmugam also records:
94 Arbitration Award, paragraph 74
95 Record Volume 2, pages 8 and 9
"I want to highlight the importance of building a credible,
market leading, 3rd party alternative offering, in my
discussions with some of you, it seems like Forbes is
impressed with our governance framework and our ability
to accommodate a thorough due diligence on such short
notice. We will build their confidence further by
strengthening our governance structure going forward."
Page 48
84.2 In response and on 12 July 2018, the applicant sent Shanmugam an
electronic mail. In his electronic mail the applicant records inter alia, the
following:
"Hi Mervin,
I am concerned that the mentioning of strengthening the
governance process pops up again and again.
I want us to spend a long session and focus on corporate
governance for Sanlam Properties in particular. If we
understand how we are currently functioning and identify
any issues that needs to be addressed then I am willing to
change the process immediately to improve. If we cannot
justify change based on improvement then there is no
reason for change. The introduction of a new corporate
governance process that is going to impact on my ability
to manage my funds will be difficult to agree to.
We have a thorough investment decision-making process
tested over time with external independent representation
on investment committees, independent due diligence
process rigorously followed, etc. We have a proven Jong
track record on performance and a quality portfolio built up
over 20 years plus using the current process.
The asset consultants we have engaged with have all
made recommendations to their clients for investment.
They would not have done this if they have not bought into
corporate governance process.
I am willing to engage with anybody that has the view that
the corporate governance process within Sanlam
Properties is not functioning.
Regards" 96
Page 49
84.3 It was the evidence of Roux that improvements and changes to the
governance process are not the decision of the applicant. In this regard
the transcript records the following:
"This is not his decision. The decision of governance
process of Sanlam Properties cannot lie with the business
itself It lies with the superior of the business, so it is
completely inappropriate. Look, we should always have, I
would think that, and Mervyn would have said it that one
will always have to listen to proposals that comes from the
property business and how the governance should work
within the business, but it is inappropriate to think that he
will decide whether it will be followed or not. Governance
doesn't work like that. You are governed by somebody
who is above you. You can't govern yourself So this
sounds like I will decide for myself how I will be governed.
The superior of a business will decide how you are
governed. You can influence it by giving your input, but
you know, just the way it is described shows ... you know,
it shows disrespect. You shouldn't be doing it like this.
You should be saying I have got some input into the
governance process, can we please discuss it. Rather
than I will decide whether I can agree to it. I just don't think
96 Record Volume 2, pages 6 and 8
it is the right way of doing it. It is a bit derogatory to the
guy that sits above him, to say this to him. '197
Page 50
84.4 The applicant's evidence includes that:
84.4.1 "He was slightly concerned, and the concern was correct, when people
started asking [him] within the Sanlam Group, probably around the
coffee table or something, but wasn't your corporate governance good
enough."98
84.4.2
84.4.3
84.4.4
84.4.5
The risk was that potential clients of his, if they do not believe that his
processes are good and robust, they potentially could not invest.99
He was "quite proud of the corporate governance that we had in
place."100
"I was getting concerned that every time there was communication it
was mentioned that the corporate governance had to be looked at. So
in my abrupt way, I immediately send a mail to him. "101
"It was a response, an opportunity to mention in general that the
comment about corporate governance, I disagree with. I am sure, I am
allowed to disagree with my manager and if I inform him, there is nothing
wrong with that. "102
84.5 Shanmugam sent the applicant a further electronic mail103 stating that the
applicant was an important member of the team that they were building
and further that they would "would go through the process to determine
the best governance structure not only for your portfolio but for the entire
Alternatives business"104.
97 Record Volume 6, pages 33 to 35
98 Record, Volume 6, page 29, lines 6 - 9
99 Record Volume 6, page 294, lines 10 - 14
100 Record Volume 6, page 294, lines 9 - 14
101 Record Volume 6, page 295, lines 15 - 17
102 Record Volume 6, page 295, lines 15 - 21
103 Record Volume 2, page 6
104 Record Volume 2, page 6
Page 51
84.6 Under cross-examination the applicant's evidence included the following:
84.6.1
"If the perception is created that if what is there currently
then yes you can. If my perception is for example, if
Sanlam Properties is really good but word gets out that
the new manager thinks its not good enough, that can
scare people off. "10s
The tone of his electronic mail to Shanmugam was definitely not
subordinate at all.106
[85] On the evidence that served before the commissioner, Shanmugam sent a
Congratulatory electronic mail to the Alternatives business on 12 July 2018.
That was 12 days after Shanmugam was appointed as CEO of the
Alternatives business. Shanmugam's electronic mail of 12 July 2018 conveys
his congratulations and expresses his gratitude to "the heads of the various
building blocks and the many people who supported them." Shanmugam then
references discussions with some of the employees in the Alternatives
business and in relation to Forbes specifically records the following:
"it seems like Forbes is impressed with our governance
framework and our ability to accommodate a thorough due
diligence on such short notice. We will build their
confidence further by strengthening our governance
structure going forward. "107
[86] On the evidence before the commissioner:
86.1 part of Shanmugam's mandate when he was appointed as CEO of the
Alternatives Business was to strengthen the governance structure.108
105 Record Volume 6, page 350, lines 21 - 24
106 Record, Volume 6, page 353, lines 28 - 29 and page 354 line 1
107 Record Volume 2, pages
108 Record Volume 6, page 148, line 17 - 24 and page 149, lines 1 - 7
Page 52
86.2 the applicant was aware that Shanmugam's mandate included
strengthening corporate governance;109
86.3 the decision of governance of Sanlam Properties does not lie with the
business itself but rather with Shanmugam110;
86.4 the applicant can influence governance by giving his input111 ;
86.5 the applicant's electronic mail response (on 12 July 2018) to Shangugam's
electronic mail (12 July 2018) is "completely inappropriate" 112 ;
86.6 it is inappropriate to think that applicant will decide whether it will be
followed or not, "governance doesn't work like thaf' 113 ;
86.7 the applicant's response was "a bit derogatory" to Shanmugam114.
[87] On any reasonable assessment, Shanmugam's electronic mail of 12 July
2018 is positive, praises the employees and expresses his gratitude.
Shanmugam's comment as to "strengthening our governance structure going
forward" is no criticism at all. The applicant's explanations for his electronic
mail (a risk that clients in the broader Sanlam Group potentially cannot invest
going forward as they would question whether his governance was not good
enough) are unfounded. On the evidence that served before the
commissioner, there is no construction of Shanmugam's electronic mail that
could yield a result that he was being critical of the applicant.
[88] The electronic mail exchange between Shanmugam and the applicant is not
in dispute. The applicant contends that there is nothing wrong with his
electronic mail to Shanmugam of 12 July 2018 and in fact claims that his
electronic mail to Shanmugam is "not insubordinate at alf' 115. Shanmugam
takes a different view. Of critical importance, the evidence establishes that
109 Record Volume 6, page 350, lines 8 - 10
110 Record Volume 6, pages 33 to 35
111 Record Volume 6, pages 33 to 35
112 Record Volume 6, pages 33 to 35
113 Record Volume 6, pages 33 to 35
114 Record Volume 6, pages 33 to 35
115 Record, Volume 6, page 353, lines 28 - 29 and page 354 line 1
Page 53
Roux, who is senior to both Shanmugam and the applicant, found the
applicant's response to be completely inappropriate and "a bit derogatory" 116.
Roux, properly put, was quite strident in his criticism of the applicant's
conduct in relation to the Congratulatory electronic mail.
[89] On a reasonable assessment the tone and tenor of the applicant's electronic
mail to Shanmugam of 12 July 2018 does disclose resistance. The
commissioner's assessment that the applicant clearly indicated to
Shanmugam that "he [the applicant] would decide whether there would be
changes" 117 is a reasonable assessment and firmly rooted in and supported
by the evidence that served before him. The same applies to the
commissioner's assessment that "the applicant clearly showed to his line
manager not to interfere"118. The evidence that served before the
commissioner was a proper basis for the commissioner's determination that
the applicant "clearly did not wish to subject himself to his newly appointed
manager's authority".119
Nelspruit Development electronic mail
[90] In relation to the Nelspruit Development the commissioner records, inter alia,
the following:
"75. The applicant also ignored Mr Shanguman's
request that they discuss the Nelspruit
Development before proposals were put to Mr
Roux. He went ahead and wrote directly to Mr
Roux. Although Mr Roux did not seem to have an
issue with this, he did testify that one's superior
cannot be bypassed and the applicant should
have ensured that he and his superior were on the
same page, before approaching him. The
applicant did not explain why he did not discuss
116 Record Volume 6, pages 33 to 35
117 Arbitration Award, paragraph 74
118 Arbitration Award, paragraph 74
119 Arbitration Award, paragraph 74
the matter with Mr Shanmugam before writing
directly to Mr Roux. I agree with the submission
that this is an example of the applicant
disregarding his manager's authority. "120
Page 54
[91] The evidence that served before the commissioner includes the following:
91.1 On 28 August 2018, the applicant sent an electronic mail to Roux copying
Francois Kellerman, Reece Briesies and Shanmugam. The subject of the
electronic mail was "Residential Development Nelspruif'. The electronic
mail reads as follows:
"Hi Robert
I refer to our conversation regarding the transfer of the
Rest in Sanlam Properties - Nelesco is the company in
question. Nelesco owns a farm that is a rezoned and
services provided to sell off plots to owners and
developers.
This asset is valued at approximately R108m. The asset
is recognized in Sanlam Properties (Pty) Ltd owned by
SCM and all the impairments flow through to SCM Income
statement. My understanding is that this asset has been
a drag to the owner due to previous impairments of R15m.
My understanding is that further impairments may be
required as Phase 3 (of 4 phases to be developed and
sold) is being remeasured and the expectation is that the
number of plots available will be less than what is
assumed currently. We have not considered Phase 4 yet.
Sanlam Properties (that I manage to avoid confusion)
does not have a balance sheet to cover this asset - we do
not own anything. We cannot take write downs of R16m
through the income statement as this is equal to a large
120 Arbitration Award, paragraph 75
proportion of expected profits for a year. We manage the
asset (properties) for other owners on a fee basis. In short
Sanlam Properties cannot own this property and will have
to contract to manage Nelesco with the new owner.
Can we set up some time to discuss this proposed
transaction/transfer with the parties included in this mail.
Regards" 121
Page 55
91.2 Roux's evidence was in effect that the applicant had acted incorrectly.
91.2.1
91.2.2
Roux's evidence includes the following:
You get your superior on side with the proposal that you want to
make 122 .
It is actually Shanmugam who should be making the proposal to him
[Roux] after Shanmugam had discussed it with the applicant123.
"But you know, with that I don't have a real issue in the end.
If they have agreed, and Mervyn is happy with the proposal
it doesn't really matter where it comes from as long as they
are on the same page, but it could be, should be, get your
superior on the same page before you, you can't bypass him
because all I will do is send it back to the superior because
he has to be the one that is taking responsibility for that124".
[92] The evidence that served before the commissioner was rather
straightforward:
92.1 Following a board meeting a proposal was to be made in relation to certain
assets. The assets ultimately fell under Shanmugam's authority.125
121 Record Volume 2, pages 11 - 12
122 Record Volume 6, page 35, lines 13 - 24
123 Record Volume 6, page 35, lines 13 - 24
124 Record Volume 6, page 35, lines 13 - 24
125 Record Volume 6, page 151 to page 153, line 2
Page 56
92.2 The applicant was required to develop a proposal, to discuss the proposal
with Shanmugam and thereafter Shanmugam and the applicant would
approach Roux with a proposal.126
92.3 Before discussing the issue with Shanmugam, the applicant went directly
to Roux.127
92.4 The applicant copied Shanmugam in his electronic mail to Roux.
92.5 The applicant's rationale included "maybe if Roberl understood the
ownership structure, he could immediately have made a call on his own
and said ok, I understand we can do this or that proposal but at that point
the objective was to get everybody in the discussion in line with what the
issue is now''.128
92.6 The applicant approached Shanmugam after he had sent his electronic
mail to Roux.129
[93] The commissioner's assessment that the applicant "ignored Mr
Shanmugam's request that they discuss the Nelspruit Development before
proposals were put to Mr Roux"130 is supported by the evidence.
[94] The facts as to what transpired are not genuinely in dispute. The
commissioner, in the face of those facts, did not accept the applicant's
explanation for his conduct in going directly to Roux. The evidence that
served before the commissioner is a proper basis for the commissioner's
conclusion that "the applicant did not explain why he did not discuss the
matter with Mr Shanmugham before writing directly to Mr Roux. I agree with
the submission that this is an example of the applicant disregarding the
manager's authority". 131
126 Record Volume 6, page 151 to page 153, line 2
127 Record Volume 6, pages 357 - 358
128 Record Volume 6, page 356, lines 1 - 4
129 Record, Volume 6, page 357, lines 3 - 9
130 Arbitration Award, paragraph 75
131 Arbitration Award, paragraph 75
Page 57
The Memorandum of Understanding (MOU) electronic mail
[95] In relation to the MOU electronic mail the commissioner records, inter alia,
the following in his arbitration award:
"76. On 28 August 2018, the applicant also sent an
email to Mr Roux about the recently concluded
MOU. He did not copy Mr Shanmugham into this.
This is clearly a very important document. The
applicant's version is that Mr Shanmugham was
kept abreast because he was an invitee on
Propco and received all the documents. The
point is, as was testified, the changes in the MOU
should have been brought to Mr Shanmugham's
attention before the Propco meeting. At that
meeting, it would not be possible to debate the
document. He should have been kept fully
abreast of developments, particularly regarding
such an important document. Mr Shanmugham
saw this as another example of the applicant
ignoring him and disregarding him as his
manager. The applicant deflected and failed to
ex.plain why his manager was ignored regarding
the MOU. I agree that the applicant was not
required to send all documents to his manager.
He was required to send emails to important
issues that could impact on operations to his
manager. "132
[96] The evidence that served before the commissioner includes the following:
96.1 On 28 August 2018, the applicant sent Roux an electronic mail. That
electronic mail reads, inter alia, as follows:
132 Arbitration award, paragraph 76
"Hi Robert
Sanlam Properties has recently concluded the signing of
a Memorandum of Understanding (MOU) with Sanlam Life
(Anton Gildenhuys).
The inclusion of developments has been made in the
mandate but with strict requirements as required by SIM
Board members.
We include extracts from the MOU and various annexures
that deals with developments. I can send you the full
MOU to give context if needed.
Regards"133
Page 58
96.2 On 29 August 2018, Roux sent Shanmugam an electronic mail in relation
to the 28 August 2018 electronic mail from the applicant. Roux's email to
Shanmugam reads as follows:
"FYI - in case you are not in the loop.
RR"134
96.3 Roux's evidence was that Shanmugam was not copied on the electronic
mail, that he thought that Shanmugam "wasn't in the loop so therefore I
sent it on to him. I was worried he was not in the loop because if he was
not in the loop, I am not going to look at it. "135
96.4 In relation to the proposition that Shanmugam was at Propco and would
be aware of all property decisions or property matters taken at Propco and
therefore would be "in the loop", Roux's evidence included the following:
"No, incorrect. I said in the loop beforehand. You have to
be in the loop beforehand. If he goes to Propco and
somebody presents something there on behalf of the
133 Record Volume 3, page 71.1
134 Record Volume 3, page 71.1
135 Record Volume 6, page 36, lines 12 -17
company and he is not in the loop there it is absolutely the
wrong place to have a debate on it. So, for me in the loop
means that we are on the same page. And that should
happen before you go to Propco. So, that he is at Propco,
doesn't say he is in the loop. No.
He is only in the loop if he has had a discussion before
that. And, he doesn't sound like it out of the emails that I
saw."136
Page 59
96.5 The testimony of Nersan Naidoo (Naidoo), the CEO of Sanlam
Investments, as to his expectation had he been the applicant's manager
includes that he would have expected:
"To discuss the changes with me so that I may take a view
whether or not they make sense for the business, whether
or not they challenge or pose any risks for what we are
doing from a business perspective. And to discuss them
with me before discussing them with Mr Roux.
Certainly, that was the way I would have felt about it, given
that I also sat on that Board at the time that I would have
wanted to have been aware of what was being escalated
to the Board to make sure that it was, it was consistent
with discussions that were had previously and that if any
questions then were raised about, you know, the changes
that were implemented or proposed and the impact that
they may have on the business, that I was equipped at
Board level to discuss them."137
136 Record Volume 6, page 54, lines 9 - 23
137 Record Volume 6, page 117, lines 1 O - page 188, lines 15 and page 136, lines 1 - 10
Page 60
96.6 Shanmugam's evidence under cross-examination includes that it was
necessary and reasonable for the applicant to discuss changes to the
MOU with him before taking it any further and that "as a subordinate I
would have expected him to keep me up to date before it gets to Propco.
Not at Propco. Propco is too late for me. "138
96.7 Under cross-examination the applicant's evidence included the following:
"ADVOCATE NORTON: And Mr. Shanmugam's
MRRHEEDER:
response was that if this was
something that you could send
and make available to Robert
Roux then it is something that
he ought to have received as
well.
I made the call given that he
had the full document that was
tabled at Propco prior to Mr
Neil van Rensburg giving me
instructions that he was in the
no. I did discuss it with him, he
was in, what do you call it, he
did have the MOU. My
assumption was that he would
read the document if he had
questions, he could have
asked me."139
[97] The evidence that served before the commissioner is rather straightforward
and includes the following:
97.1 The Memorandum of Understanding (MOU) documents govern the
relationship between Sanlam Life and Sanlam Properties and Sanlam
138 Record Volume 6, page 183, lines 4 - 5
139 Record Volume 6, page 361, lines 11 - 17
Page 61
Investment Management. Sanlam Investment and Sanlam Properties
manage the assets. The MOU is an important document regulating, inter
alia, the investment and the related fees between the parties.140
97.2 The applicant sent an electronic mail to Roux on 28 August 2018 in relation
to the MOU.141
97.3 Shanmugam was not one of the recipients of the applicant's electronic mail
to Roux on 28 August 2018.142
97.4 The applicant's electronic mail to Roux of 28 August 2018 was in relation
to business which in the ordinary course fell under Shanmugam's
authority.
97.5 On 29 August 2018, Roux sent Shanmugam the electronic mail that the
applicant had sent Roux on 28 August 2018143.
97 .6 Roux was "worried' that Shanmugam "was not in the loop because if he
was not in the loop, I am not going to look at if'.144
97.7 Shanmugam has to be "in the loop" beforehand, before it goes to Propco.
145
[98] The facts that served before the commissioner in relation to MOU electronic
mails are not genuinely in dispute. It is clear that the commissioner did not
find the applicant's explanations for approaching Roux directly, and without
involving Shanmugam, acceptable. The commissioner did not accept the
applicant's version that he had not acted incorrectly. The commissioner's
findings are properly grounded in and supported by the evidence that served
before him.
140 Record Volume 6, page 153, lines 15 - 22
141 Record Volume 3, page 71.1
142 Record Volume 3, page 71.1
143 Record Volume 3, page 71.1
144 Record, Volume 6, page 36, lines 12 - 17
145 Record Volume 6, page 54, lines 9 - 23
Page 62
[99] The commissioner's assessment that Shanmugam "should have been kept
fully abreast of developments particularly regarding such an important
documenf' 146 is firmly rooted in the evidence that served before him.
Similarly, the commissioner's assessment that the applicant "was required to
send emails related to important issues that could impact on operations to his
manager'' 147, is firmly rooted in the evidence that served before him. On a
reasonable assessment of the evidence that served before the
commissioner, the applicant did indeed seek to "deflecf' and did not offer any
reasonable explanation for his conduct in bypassing Shanmugam.
Tender documents
[100] In relation to the Tender documents the commissioner records, inter alia, the
following in his arbitration award:
"77. JHI, the Sanlam Commercial, Property Manager,
requested certain FICA documents from Sanlam Board
members. The applicant did not include Mr Shanmugham
in his correspondence in this regard. Mr Roux forwarded
it to him. This demonstrates that Mr Roux was of opinion
that Mr Shanmugham should have been kept in the loop.
He testified that he should be kept up to date with anything
that might pose a business risk. The applicant gave no
reasonable explanation why his immediate manager was
not kept in the loop of things and the correspondence not
sent to him, regarding this "Braampark" lease."
[101] The evidence before the commissioner includes the following:
101.1 On 29 August 2018 the applicant sent an electronic mail to the Company
Secretary of the Sanlam Group. The applicant requested that certain
documents "to be completed, if not received urgently we will be disqualified
from this tender''148
146 Arbitration Award, paragraph 76
147 Arbitration Award, paragraph 76
148 Record Volume 2, page 15
Page 63
101.2 The applicant's electronic mail records that it is urgent"149
101.3 Shanmugam was not one of the recipients of the electronic mail. The
electronic mail was copied to Roux.
101.4 On 29 August 2018, Roux forwarded the applicant's electronic mail in
relation to the tender documents to Shanmugam.150
101.5 Roux's evidence was that Shanmugam "should be in the loop with what is
going on before we take it any further' and "whatever happens after that,
it might go back to you or it might go back to your boss. And they must be
up to speed with precisely what you have decided, and you can't have
differing opinions."151
101.6 Shanmugam's evidence in relation to Roux forwarding the electronic mail
to him includes the following:
"Yes, so again here Robert is giving me information that I
should have already. Because obviously if we don't get
this tender it is a business risk, right. So, my responsibility
is also to manage the business in the Alternatives cluster.
So, here Robert is telling me please be aware of this, that
this is going to appear, and Ian calls me on a lot of issues,
so if Ian or Robert asked me about this tender, I might
have absolutely no idea, and it would be embarrassing as
the Head of the Alternatives Business for me not to have
known that this was actually happening. And actually, that
it was a business risk. "152
101.7 In Shanmugam's assessment he ought to have been copied in the
electronic mail. Shanmugam's assessment includes that if he was
subsequently asked about this tender, he "might have absolutely no idea
149 Record Volume 2, page 15
150 Record Volume 2, pages 14 and 15
151 Record Volume 6, page 37, lines 2 - 28; Record Volume 6, page 108, lines 3 - 7
152 Record Volume 6, page 155, lines 1 - 11
Page 64
and it would be embarrassing as the Head of the Alternatives Business"153
for him not to have known what was transpiring. Part of Shanmugam's
reason for his assessment that he ought to have been copied was that the
applicant himself had positioned the matter as a "business risk' 154.
101.8 On 29 August 2018, the applicant sent an electronic mail to the Company
Secretary requesting that certain documents be completed155;
101.9 In the applicant's assessment there was no need to copy Shanmugam on
the electronic mail as it was ""literally administrative issues in the
background. "156
101.10 The applicant copied Roux on the electronic mail of 29 August 2018
because he was informed that Roux would attend the next board meeting
where the matter might arise, that there "might be a question and that he
had to field it" and he copied Roux as a courtesy.157
101.11 In Roux's assessment Shanmugam "should be in the loop with what is
going on before we take it any further'' 158;
[102] The material facts are not genuinely in dispute. The applicant's electronic mail
of 29 August 2018 does position the issue as a 'business risk' ("if not received
urgently we will be disqualified from this tender''159). The applicant's
explanation for his conduct, not informing Shanmugam of the developments
and not keeping him "in the loop" as his line manager is, in summary, that it
was "literally administrative issues in the background' 160 and that there was
no need for Shanmugam to be copied in the electronic mail. The applicant's
explanation for copying Roux on the electronic mail of 29 August 2018 is that
Roux would attend the next board meeting where the matter might arise, that
153 Record Volume 6, page 155, lines 1-11
154 Record Volume 6, page 220, lines 1-23 and page 221, lines 1-7
155 Record Volume 2, page 15
156 Record Volume 6, page 304, lines 5 - 10
157 Record Volume 6, page 303, lines 21 - 25
158 Record Volume 6, page 37, lines 2 - 28; Record Volume 6, page 108, lines 3 - 7
158 Record Volume 6, page 37, lines 2 - 28; Record Volume 6, page 108, lines 3 - 7
159 Record Volume 2, page 15
160 Record Volume 6, page 304, lines 5 - 10
Page 65
there "might be a question and that he had to field it" and that he had copied
Roux as a courtesy.161
[103] On the evidence that served before the commissioner, Roux was critical of
the applicant bypassing Shanmugam. The commissioner did not accept that
there was a proper reason for Shanmugam not to be kept abreast of the
developments. The commissioner's assessment is that "The applicant gave
no reasonable explanation why his immediate superior was not kept in the
loop of things and the correspondence not sent to him regarding the
"Braampark" lease".162 The commissioner's findings are properly grounded in
and supported by the evidence before him.
Wood Transaction electronic mail (13 March 2019)
[104] The commissioner in his arbitration award records, inter alia, the following:
"78. Subsequent to the Forensic Report into the wood
transaction having been released, Mr Shanmugham sent
the report to the applicant. On 12 March 2019 the
applicant sent his response to Mr Shanmugham and also
to Messrs Naidoo and Roux. In the applicant's closing
submissions, it is submitted that the Forensic Report
refers to the false version that the applicant had stolen the
wood. The report does not state that the applicant was
accused of theft. The applicant had conceded during
cross-examination that the report did not accuse him of
theft. In his response of 12 March 2019, the applicant also
does not refer to theft. The applicant knew at this time that
Mr Shanmugham was planning to take disciplinary action
against him. Why the applicant copied Messrs Naidoo and
Roux in the response, was not explained. The matter had
nothing to do with either of them. Here again it is
suggested that the applicant breached the known rule by
sending correspondence to them. However, why did he do
161 Record Volume 6, page 303, lines 21 - 25
162 Arbitration Award, paragraph 77
so? As he proffered no explanation, not even in the
closing submissions, it is not unreasonable to infer, as
was submitted on behalf of the respondent, that the
applicant was trying to bypass his manager, disregarding
his authority regarding disciplinary action and trying to
influence Messrs Roux and Naidoo to intervene. This is
an example of the applicant questioning his manager's
authority. "163
Page 66
[105]The evidence that served before the commissioner includes the following:
105.1 On 6 March 2019 Shanmugam sent the applicant an electronic mail,
copying Brink. The subject matter of the electronic mail is "Status update
- Forensic lnvestigation"164;
105.2 Shanmugam's electronic mail to the applicant of 6 March 2019 informs the
applicant, inter alia, that Shanmugam has received the outcome of the
forensic investigation and that he would inform him of the process to be
followed;
105.3 On 12 March 2019 the applicant sent an electronic mail to Shanmugam,
Naidoo and Roux. The applicant records that he has been informed that a
"disciplinary meeting may be arranged". The applicant further in his
electronic mail puts forward a version of the events relevant to the Wood
transaction and in the concluding part of his electronic mail the applicant
records that "I believe that I have acted in a responsible manner with
regards my involvement in this transaction and by disclosing to related
parties have been open about my behaviour". In the electronic mail the
applicant also records that he is "faced with possible conflict of interest
situations on a daily basis"165;
163 Arbitration Award, paragraph 78
164 Record, Volume 2, page 94
165 Record Volume 2, page 93
Page 67
105.4 On 13 March 2019 at 12:34 AM Shanmugam responded to the applicant's
earlier electronic mail of 12 March 2019. Shanmugam in his electronic mail
records, inter a/ia, the following:
105.4.1 He informed the applicant that a disciplinary meeting is going to be held;
105.4.2 The applicant should engage with him directly and only him (as his line
manager), it is unnecessary to involve Naidoo and Roux in this detail
"and it is an attempt to by-pass or side-step me. I will explore the
possible other reasons for this when we engage over this in the
disciplinary meeting, as I have told you on numerous occasions to stop
doing this, yet you ignore this time and again"166;
105.4.3 "You not only undermine me and show disrespect to my authority as
your senior, but you make it uncomfortable for Nersan and Robert, who
have had to forward your emails to me when you have failed to inform
me or engage with me yourself. This reflects poorly on you. Please
refrain from engaging further over the matter below, as this will be the
subject of a disciplinary process. The meeting will be scheduled for early
next week and you will receive an email about it tomorrow". 167
105.5 Roux's evidence was that Shanmugam's approach that the applicant
should engage only with him and that it was unnecessary to involve Naidoo
and himself (Roux) was "correcf', the engagement should be with
Shanmugam and "not putting us in the picture at alf' 168.
105.6 The applicant's evidence includes the following:
105.6.1 In discussions with Joubert he was informed by Joubert that the version
put to Joubert for comment was basically that he (the applicant) had
stolen the wood 169;
166 Record Volume 2, page 91
167 Record Volume 2, pages 91 and 92
168 Record Volume 6, pages 39, lines 10 - 18
169 Record Volume 6, page 305, lines 2-8
Page 68
105.6.2 He and Joubert thought that "if everybody understood what had
transpired it would be fine" 170;
105.6.3 The forensic report does not record him (the applicant) being
accused of stealing the wood, nor does it conclude that he
stole the wood 171 ;
105.6.4 The forensic report does record that the applicant should
have obtained the necessary permission 172;
105.6.5 He copied Nesan and Roux, 'just to give them information"
173·
'
[106] The commissioner's finding that "it is not unreasonable to infer, as
was submitted on behalf of the respondent, that the applicant was
trying to bypass his manager, disregarding his authority regarding
disciplinary action and trying to influence Messrs Roux and Naidoo
to intervene. This is an example of the applicant questioning his
manager's authority. "174 is supported by and grounded in the
evidence that served before him.
The Newlands Development electronic mail
[107] In relation to the Newlands Development electronic mail exchange the
commissioner records, inter alia, the following in his arbitration award:
"79. On 12 December 2018, Mr Shanmugham sent the
applicant an email about the New/ands Property
Development, asked him not to take hasty decisions in a
round robin way and to debate the matter with him. No
response was received from the applicant until 8 February
2019 when the applicant accused Mr Shanmugham of
giving contradictory instructions and causing an impasse.
170 Record volume 6, page 305, lines 9-16
171 Record Volume 6, page 366, lines 9-13
172 Record Volume 6, page 366, lines 9-13
173 Record Volume 6, page 367, lines 3 - 8
174 Arbitration Award, paragraph 78
The applicant says he responded to all the issues raised
in the 12 December 2018. No reasonable explanation was
given for the long delay in responding. Mr Roux also could
not understand the delay in responding. He also
confirmed that the applicant had to respect Mr
Shanmugham. Mr Shanmugham was clearly
unimpressed. This caused him to question himself and his
capabilities. The applicant clearly resisted his manager's
instructions as per the 12 December 2018 email. He must
also have been aware that Mr Shanmugham was
sensitive to the possibility of losing money after the loss of
funds in Private Equity. Irrespective whether Mr
Shanmugham is a properly expert, he is a person with
many years of experience in Sanlam and was appointed
as the applicant's manager. This incident is a further
demonstration that the applicant did not want to subject
himself to Mr Shanmugham's authority."
Page 69
[108] The evidence that served before the commissioner includes the following:
108.1 On 12 December 2018 Shanmugam sent an electronic mail to the
applicant. Shanmugam's electronic mail was copied to Patrick Kilkenny,
Naidoo and Warren Young. The subject of the electronic mail was
"Approval process for the New/ands Property Deve/opmenf'. In the
electronic mail, Shanmugam wrote, inter alia, the following:
"Hi Andre,
I refer to our brief discussion last week about the
New/ands Property Development when you mentioned
this to me in passing.
I am uncomfortable given the size of the transaction for
this to be approved on a round robin basis by PropCo.
Given the governance and approval standards required
by our clients (both Sanlam and third-parties) I am not in
support until we have met to debate the transaction with
full information. I am also concerned that this transaction
is being rushed. We have had similar experiences in other
parts of the business and I would like to consider the
transaction only after the due diligence is complete and
presented to Propco.
Please would you hold off on this transaction until Propco
has met with the full pack of information. I also don't think
it would be appropriate to sign any agreements until we
have met.
Kind regards"175
Page 70
108.2 Some two months later and on 8 February 2019, the applicant sent an
electronic mail to Shanmugam, van Rensburg and Joubert, copying
others. In the electronic mail the applicant recorded, inter alia, the
following:
"The instruction in your email not to enter into any
agreement with the seller prior to the approval of the
proposal to PROPCO is inherently contradictory. It is
expected of me to agree to the terms of the transaction
prior to submitting the proposal to PROPCO.
This transaction, should the proposal be approved, will be
funded entirely by Sanlam Estate; no third-party investor
will participate in the development. I have discussed the
transaction with Neil van Rensburg (Neil is the Chairman
of PROPCO and represent the interest of Sanlam Estate
on PROPCO). Neil has reiterated that Sanlam Properties
must adhere to the Sanlam Properties approval
framework and are comfortable to follow the current
decision-making process.
175 Record Volume 2, page 16C
In light of this we urgently need to resolve the impasse
created by your instruction not to enter into any agreement
with the seller prior to the approval PROPCO.
Regards"176
108.3 Roux's evidence includes the following:
"So, I don't want to respond to the specifics of the thing.
What is completely wrong in this process, what I read
here, is this happens 12 December, and whether his
wording is precisely correct and say this is the process
that we need to follow, you can see that he doesn't want
to do this strategically until he has got, there is certain
things that has happened and therefore he wants a
discussion. What should have happened, is that if I am
the person, that this is addressed to, I would have set up
a meeting for the 13th of December or the 14th, maybe
beginning of January if we are on leave to clarify this.
Because, for me, this is a reasonable request that he
wants a discussion before it is being taken further.
Because, whetherit is in agreement with Sanlam Propco,
it must be in agreement with the strategy of the business
and therefore he has got his right, he has got his full right
as Mervyn to want to have a discussion on this and this is
what should have been happening.
If I am, if somebody tells me he wants to have a discussion
I have a discussion. I arrange a discussion with him. Not
to say to him two months later, we had an impasse. And
no reaction in between. Or that is how it looks like, I don't
know whether there was. Because the important thing
of this is not whether we can catch each other out in
a little point in the process. The importance is Mervyn
176 Record Volume 2, pages 16A and 16B
Page 71
is the superior and you should be respecting and
therefore engage with him.
If he has asked for a discussion with him, then you have
a discussion with him. You arrange a discussion and talk
it through. Don't write an email 2 months later. It just
doesn't sound right.
You know, something that confirms the way that
Mervyn would feel about it is that you are not wanting
to engage, you are trying to either bypass me or you
disrespect my role. That's sort of what it says, and it
is just not acceptable. It is not a very difficult and
unreasonable request this, you know. And especially
if it is so urgent because it sounds like it is urgent. How
can it be urgent 2 months lateryou come back to this?"177
(emphasis added)
Page 72
[109] The rather straightforward evidence that served before the commissioner on
this score is that Shanmugam had raised certain concerns in an electronic
mail on 12 December 2018 in relation to a proposed transaction. The
applicant only responded some two months later and on 8 February 2019.
[11 0] On the evidence before the commissioner, Shanmugam's request in his
electronic mail of 12 December 2018 was a reasonable request. The
commissioner's finding that the incident is a "furlher demonstration that the
applicant did not want to subject himself to Mr Shanmughan's authority" 178 is
properly grounded in and supported by the evidence that served before him.
177 Record Volume 6, page 41 lines 11 - 28 and page 42, lines 1 - 1 O
178 Record Volume 6, page 41, lines 11 - 28 and page 42, lines 1 - 10
Page 73
Property Portfolio incident (early April 2019)
[111] In relation to the Property Portfolio incident (early April 2019) the
commissioner records, inter alia, the following in his arbitration award:
"80. It was not in dispute that Todd Misklethwaite was
appointed to act as a middleman and that Mr
Shanmugham instructed that this be honoured. On 3 April
2019, he informed the applicant of a complaint received
from Shaun Ruiters of SMMI. The applicant denied that he
had made any presentation to SMMI and had bypassed
Mr Micklethwaite. Why would Mr Ruiters have complained
if the applicant did nothing wrong? The applicant gave a
long explanation of "informal" chats he had that might
have been overheard. Mr Shanmugham told the applicant
that he would manage the matter. He subsequently
apologised to Mr Ruiters. Then the applicant also did so,
in conflict with the instruction to leave the matter in his
manager's hands. Again, a very long explanation is given
but not addressing the pivotal issue of why the applicant
ignored his manager's instruction. I agree that this is also
an example of the way the applicant regarded Mr
Shanmugham."
[112]The evidence before the commissioner includes the following:
112.1 On 3 April 2019, Shanmugam sent an electronic mail to the applicant. In
that electronic mail Shanmugam wrote the following:
"Hi Andre,
I received a complaint from SMMI about you presenting
them with incomplete information with regard to a potential
R4bn property portfolio that you wanted them to invest in.
Can you please explain why you did not follow the process
we agreed to coordinate all our discussion efforts via
Todd? And why you went directly to a client, albeit
internal?
Kind regards"179
Page 74
112.2 On 4 April 2019 the applicant sent Shanmugam an electronic mail
responding to Shanmugam's electronic mail of 3 April 2019. In his
electronic mail the applicant writes the following:
"Hi Mervyn,
I did not present SMMI with the opportunity to invest in the
potential fund.
I went to Adam Bulkin as previous employee and key
player in the decision-making process at Alex Forbes to
discuss the appointment of Dawie de Villiers and the
impact this may have on investment decisions. Secondly,
I wanted to know if Alex Forbes would be interested in a
product of high quality properties separate from the
current fund, it was my way of testing the waters with
knowledgeable and in the know people with Alex Forbes
that we have access to. Adam then mentioned that SMMI
may be interested too. Some of his colleagues overheard
the discussion at his desk.
Soon thereafter on the 5th of March I had a formal meeting
with SMMI at their request on potential investment into the
Direct Property fund and the potential fund was not
discussed at all. Todd and Pa wan knew about the meeting
with SMMI and Todd attended, Pawan declined. It was
not a formal presentation to SMMI on our capabilities but
an opportunity for them to ask questions at Adam's
request. We provided them with performances figures
only.
179 Record Volume 2, page 24
Page 75
Regards"180
112.3 Later on 4 April 2019 Shanmugam sent an electronic mail to the applicant.
In this further electronic mail Shanmugam writes the following:
"Hi Andre,
SMMI has asked to treat them as a client and in a
professional manner. Something you did must have upset
them.
It is critical for us to build these relationships internally for
us to stand a chance of getting an allocation to our funds.
We have structured ourselves so that Todd co-ordinates
all the client facing activities for us. We had an agreement
that all of our funds will go through Todd as Head of our
Alternatives distribution. I have communicated this to you
and all of our funds on numerous occasions. Please will
you follow the agreed process going forward for both
internal clients and external clients.
Kind regards'1181
112.4 The applicant responded to Shanmugam's further electronic mail stating
that
"Hi Mervyn
I am in the dark where we did not treat them
professionally. I will engage and apologise if need be.
I do not understand the comment about Todd. Todd was
in the meeting with SMMl."182
180 Record Volume 2, page 24
181 Record Volume 2, page 23
182 Record Volume 2, page 23
Page 76
112.5 Shanmugam in a further electronic mail to the applicant wrote, inter a/ia,
the following:
"I have apologised already.
It was not the meeting with Todd that they were referring
to but another encounter without him.
Please follow our process going forward.
Kind regards"183
112.6 Subsequent to that and on 10 April 2019 the applicant sent an electronic
mail to Shanmugam. In that electronic mail the applicant wrote, inter alia,
the following:
"Hi Mervyn
I had the opportunity to discuss this complaint with Shaun
Ruiters informally this morning.
I apologized unreservedly if the impression was created
that Sanlam Properties was not following due process in
allocations made internally within the Sanlam Group.
Given my history with Sanlam Estates and Sanlam
Policyholders as Investors I am extremely conscious of
treating all as if they are third party Investors.
"184
112. 7 Shanmugam's evidence includes that when dealing with clients, they have
to "ensure that Todd is in the loop ... because we have to approach clients
in a coordinated manner'. 185 In addition, Shanmugam's electronic mail to
the applicant of 4 April 2019 refers to the "agreed process going forward
for both internal clients and external clients".
183 Record Volume 2, page 22
184 Record, Volume 2, pages 21 and 22
185 Record, Volume 6, pages 21 and 22
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112.8 The applicant's evidence includes that on his reading, Shanmugam's
electronic mail to him does not include an instruction saying that
Shanmugam had already apologised and that he (the applicant) "can't
apologise as well". 18s
[113] The evidence that served before the commissioner was rather
straightforward. A complaint in relation to a significant issue was raised with
Shanmugam. Shanmugam dealt with it and required that the applicant take
no further steps in relation to the complaint as raised. Notwithstanding this,
the applicant discussed the complaint with Ruiters.
[114]The commissioner's finding that "this is also an example of the way the
applicant regarded Mr Shanmugham" as well as the commissioner's finding
that the applicant acted "in conflict with the instruction to leave the matter in
his manager's hands" are properly grounded in and supported by the
evidence that served before him.
[115] It is readily apparent that the commissioner did not regard the applicant's
"long explanation" as satisfactory and did not accept the applicant's
explanations for his conduct. On the evidence that served before the
arbitration proceedings, the commissioner had every proper basis to do so.
The Second Allegation
[116] It is contended on behalf of the applicant that "It is also common cause that
Shanmugam did not take issue with the applicant's conduct or voice his
displeasure at any stage prior to issuing the initial disciplinary charges in
March 2019 ("first charge sheet). In the circumstances, the applicant's
version that he was unaware of Shanmugam's unhappiness until then cannot
be discounted. Similarly there is no evidence to gainsay his version that he
would have modified his conduct accordingly if he had been made aware of
it "_ 187
[117] The Wood transaction has been dealt with above and the contentions at
paragraph 42 of the applicant's heads of argument do not relate to that
186 Record, Volume 6, page 161, lines 19 and page 162, lines 1 - 9
186 Record, Volume 6, page 161, lines 19 and page 162, lines 1 - 9
187 Applicant's Heads of Argument, paragraph 42
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serious misconduct. Allegations 3.1 and 3.2 as they relate to the applicant's
transformation obligations are dealt with below. The contentions at
paragraph 42 of the applicant's heads of argument do not relate to allegations
3, 1 and 3,2. These contentions relate to allegation 2 and possibly 3,3.
Contention that applicant not aware of Shanmugam's 'unhappiness'
[118] In relation to the applicant not being aware of Shanmugam's 'unhappiness',
the applicant's evidence-in-chief includes the following:
118.1 Congratulatory electronic mails (12 July 2018), at the time, Shanmugam
did not mention that he was unhappy.188
118.2 Nelspruit Development issue (28 August 2018), at the time, Shanmugam
did not mention that he was unhappy.189
118.3 MOU electronic mail (28 August 2018), at the time neither Roux nor
Shanmugam indicated unhappiness and that he first became aware when
the allegations of misconduct were put to him.190
118.4 Tender documents (29 August 2019), the first time that he became aware
that Shanmugam took issue with his conduct was when the allegations
were put to him191 .
118.5 Newlands Development Project (12 December 2018 and 9 February
2019), he did not intend any disrespect with his electronic mail.192
118.6 Property Portfolio incident (SMMI) (April 2019), the applicant's evidence
includes that on his reading Shanmugam's electronic mail to him does not
include an instruction that he (the applicant) could not "apologize as
we//".193
188 Record, Volume 6, page 296
189 Record, Volume 6, page 300, lines 3 - 9
190 Record Volume 6, page 301, lines 27 - 29 and page 302, line 1
191 Record, Volume 6, page 304, lines 15 - 20and page 305, line 1
192 Record, Volume 6, page 312
193 Record, Volume 6, page 316, lines 17 - 26
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[119] The applicant's evidence referred to above does not include evidence to the
effect that had he known of Shanmugam's 'unhappiness' at the time of the
various incidents he would have conducted himself differently.
[120] In relation to allegation 2 the applicant's evidence-in-chief does not include
any pause for thought, let alone an acknowledgment of wrongdoing. The
applicant's evidence on the various incidents and the detail as to his conduct
does not include evidence to the effect that in hindsight, he understands the
first respondent's concerns, and that on reflection and having heard
Shanmugam's evidence earlier in the arbitration proceedings as to his
'unhappiness', he might have or would have done things differently. In point
of fact, the applicant seeks to defend his conduct and excludes any possibility
or concession that he might have acted incorrectly. The applicant, having
been afforded an opportunity to review the relevant electronic mails and the
context in which they were exchanged, persists with his view and assessment
that he did nothing wrong. This theme is echoed in the applicant's evidence
under cross-examination. By way of example, in relation to the
Congratulatory electronic mail (12 July 2018), the applicant's evidence under
cross-examination includes that there is nothing wrong with his electronic
mail and that it is "Definitely not insubordinate at alf'.194
[121] The evidence that served before the commissioner does not include evidence
by the applicant to the effect that had he known of Shanmugam's
'unhappiness' at the time of the various incidents he would have conducted
himself differently or 'modified his conduct accordingly'. In addition, in his
evidence the applicant sought to defend his conduct. The applicant's
evidence excludes any factual matter which indicates that he would have
conducted himself differently. In the circumstances, the contention that "there
is no evidence to gainsay his version that he would have modified his conduct
is no evidence to gainsay his version that he would have modified his conduct
accordingly if he had been made aware of it"195 is not sustainable. The
applicant offered no such version.
194 Record Volume 6, page 353 lines 28 -29 and page 354 line 1
195 Applicant's Heads of Argument, page 42
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[122]The applicant on his own version had a rationale or stated reason for
bypassing Shanmugam.
[123] It is contended that "It is also common cause that Shanmugam did not take
issue with the applicant's conduct or voice his displeasure at any stage prior
to issuing the initial disciplinary charges in March 2019 ... ". 196 The disciplinary
meeting of 18 March 2019 is dealt with more fully later.
[124]On 13 March 2019 Shanmugam sent an electronic mail to the applicant in
relation to a disciplinary meeting scheduled for 18 March 2019. That
electronic mail also refers to allegations of misconduct. 197 To the extent that
it is claimed that prior to Shanmugam's electronic mail to the applicant of 13
March 2019 at 14h54 198 Shanmugam had not taken issue with or expressed
unhappiness with the applicant's conduct (of bypassing or disrespecting or
undermining him), this is contradicted by the record that served before the
commissioner.
[125] Shanmugam's electronic mail of 13 March 2019 at 14h54 includes the
following: "you are expected to show respect and not undermine the authority
of your line manager. You have breached this requirement on a number of
occasions despite being directed and requested by your line manager to
refrain from this conduct."199
[126] In Shanmugam's earlier electronic mail to the applicant also of 13 March 2019
sent at 12:34AM200 Shanmugam writes, inter alia, the following:
"It is unnecessary to involve Nersan and Robert, in this detail and it is
an attempt to by-pass or side-step me. I will explore the possible
other reasons for this when we engage over this in the disciplinary
meeting, as I have told you on numerous occasions to stop doing
this, yet you ignore this time and again.
196 Applicant's Heads of Argument, paragraph 42
197 Record Volume 2 pages 95 and 96
198 Record Volume 2 pages 95 and 96
199 Record Volume 2, page 96
200 Record Volume 2, pages 91 and 92
Page 81
You not only undermine me and show disrespect to my authority
as your senior, but you make it uncomforlable for Nersan and Roberl,
who have had to forward your emails to me when you have failed to
inform me or engage with me yourself This reflects poorly on you.
Please refrain from engaging furlher over the matter below, as this will
be the subject of a disciplinary process. The meeting will be scheduled
for early next week and you will receive and email about it tomorrow". 201
(emphasis added)
[127] Shanmugam's electronic mails to the applicant and particularly the electronic
mail of 13 March 2019 sent at 12:34AM record that Shanmugam had on
"numerous occasions" told the applicant "to stop doing this, yet you ignore
this time and again". On a plain reading, and as recorded in his electronic
mail of 13 March 2019 sent at 12:34AM, Shanmugam was referring to the
applicant's conduct in bypassing or side-stepping him. It is clear that those
"numerous occasions" necessarily refer to a period of time before 13 March
2019. This indicates that prior to 13 March 2019 Shanmugam had taken
issue with or expressed unhappiness with the applicant's conduct (of
bypassing or disrespecting or undermining him) on "numerous occasions".
[128] Shanmugam's evidence under cross-examination also includes the following:
128.1 In relation to the Nelspruit Development incident (August 2018), it was put
to Shanmugam that he did not take issue with the applicant's conduct at
the time. Shanmugam responded in the following terms: "But I can't
remember what email that I sent to Andre, but I have been having these
discussions with him all along, keep me in the loop, tell me what is going
on. You know, if you are speaking to Nerson, or Roberl or anyone, just
keep me in the loop. I can't remember which one it was but it was just keep
me in the loop, that is all I would want". 202
128.2 In relation to the Tender documents issue (March 2019) it was put to
128.2 In relation to the Tender documents issue (March 2019) it was put to
Shanmugam that he did not say to the applicant that "in the future" the
201 Record Volume 2, pages 91 and 92
202 Record Volume 6, page 209, lines 7 - 16
Page 82
applicant is required to copy him. Shanmugam responded as follows: "So,
I had those conversations and one of the emails that I wrote to Andre, I
said to him I have had these conversations with you. You know, please
keep me in the loop when you are talking to Robert and Nerson ... I can't
remember when but it was on a number of occasions". 203
[129] Shanmugam's oral evidence on this score is supported by the content of his
electronic mail to the applicant of 13 March 2019 sent at 12:34AM.
[130] In the circumstances and on the evidence that served before the
commissioner, the contention that it is "common cause that Shanmugam did
not take issue with the applicant's conduct or voice his displeasure at any
stage prior to issuing the initial disciplinary charges in March 2019 ("first
charge sheet"), being the electronic mail of 13 March 2019 is not sustainable.
[131] In relation to the contentions as to the lapse of time between some of the
incidents and the disciplinary action taken by the first respondent204 the
commissioner in his arbitration award deals with this expressly. In this regard,
the arbitration award records, inter a/ia, the following:
"It was submitted that the respondent [acted]
unreasonably due to the delay in instituting disciplinary
action particularly of the events in July 2018 ..... . and
insofar as the case is relied upon for a case of
procedural unfairness, the submissions cannot be
upheld because in the pre-arbitration minute it was
agreed that procedural fairness was not in dispute or
was no longer in dispute. "w5
[132] Further, and in the context of the Congratulatory electronic mail (12 July
2018) the commissioner in the arbitration award records, inter a/ia, the
following:
203 Record Volume 6, page 218, lines 4 - 14
204 Applicant's Heads of Argument, paragraph 66
205 Arbitration Award, paragraph 71
"The applicant clearly showed to his line-manager not
to interfere. Messrs Roux and Naidoo also expressed
their view that the applicant was wrong. They were not
challenged in their views. That Mr Shanmugham did
not immediately take disciplinary action against the
applicant does not detract from what happened.
There should not be a need for senior people to be
constantly admonished or warned. "206
(emphasis added)
Page 83
[133]Yet further and at paragraph 81 of the arbitration award the commissioner
records, inter a/ia, the following:
"81. At this level of seniority, it is imperative that people
work together to further their employer's interests. They
are after all spearheading the activities. I accept that
such seniority is also accompanied by years of
experience, know-how and institutional knowledge and
that there will be differences of opinion, even
arguments. But the reporting lines must still be
honoured so that the top structure does not
become dysfunctional. There should be no need to
remind senior colleagues of this obligation. The
overall impression is that the applicant disregarded Mr
Shanmugam's authority over him." 207
(emphasis added)
[134] The arbitration award reflects that the commissioner was alive to the
contention that the first respondent did not 'immediately' at the time of the
alleged misconduct take steps and the contention as to a delay in taking the
206 Arbitration Award, paragraph 74
207 Arbitration Award, paragraph 81
Page 84
disciplinary action in April 2019 in relation to events, some of which occurred
in July and August 2018. The commissioner did not simply ignore this issue.208
[135] On the Congratulatory electronic mail exchange of 12 July 2018, the
applicant's assessment is that his electronic mail to Shanmugam is "not
insubordinate at all." 209 In relation to the Newlands Property Development
incident, the applicant in effect ignored Shanmugam's request as recorded in
his electronic mail of 12 December 2018 and responded some two months
later on 8 February 2019. On the Tender documents incident, the applicant
in his electronic mail of 29 August 2018 excluded or bypassed Shanmugam.
On the applicant's version there was no need to copy Shanmugam in his
electronic mail in relation to the Tender documents.210 In other words,
exclusion of Shanmugam from the applicant's electronic mail in relation to the
Tender documents was deliberate. The Tender documents incident
happened a day after the MOU incident of 28 August 2018. In relation to the
MOU incident the applicant had sent an electronic mail to Roux on 28 August
2018. Shanmugam was not a recipient of that electronic mail. The Nelspruit
Development incident involves an electronic mail sent by the applicant on 28
August 2018. Notably, this is on the same day as the applicant's electronic
mail in the MOU incident. The applicant's electronic mail in the Nelspruit
Development incident involved the applicant approaching Roux directly
before discussing the issue with Shanmugam.
[136] The applicant on his own version in relation to the various incidents had a
rationale or stated reason for bypassing Shanmugam. Differently put, it is not
the case that the applicant's conduct in bypassing and disregarding
Shanmugam was the result of an oversight. On the evidence before the
commissioner, it cannot reasonably be contended that the applicant as a
senior manager with many years of employment at a managerial level needed
senior manager with many years of employment at a managerial level needed
tutelage in not undermining, bypassing or disregarding his line manager.
208 Arbitration Award, paragraphs 71, 74 and 81
209 Record, Volume 6, page 353, lines 28 - 29 and page 354 line 1
210 Record, Volume 6, page 304, lines 15 - 20 and page 305, line 1
Page 85
[137]The commissioner's reasoning that "[t]here should not be a need for senior
people to be constantly admonished or warned. "211 and that "the reporting
lines must still be honoured so that the top structure does not become
dysfunctional. There should be no need to remind senior colleagues of this
obligation" 212 can hardly be faulted. On a 'fair reading' the arbitration award
reflects that the commissioner was alive to the issues, grappled with them
and dealt with them.
[138] The established facts in the evidence that served before the commissioner
(in relation to allegation 2) are in material respects somewhat straightforward.
In relation to business matters, the applicant bypassed Shanmugam, his
direct superior, and interacted directly with other colleagues in the business
and with Shanmugam's superiors including Roux. On the Property Portfolio
incident and the complaint received by Shanmugam from SMMI, the
applicant, rather than leaving matters in his line manager's hands, met with
the CEO of SMMI. The relevant and material facts arise largely from the
documentary evidence (including electronic mail communications) that
served before the commissioner.
[139] The evidence of the witnesses as recorded in the transcript includes that of
the applicant himself, Rutters, Roux, Naidoo and Shanmugam. Whilst it is so
that the applicant sought to offer explanations for this conduct in approaching
Roux and others directly without involving (bypassing) Shanmugam, and
meeting with. Ruiters of SMMI, the applicant's conduct in approaching Roux
and others directly is not in dispute. The evidence of Ms Manka Sebastian is
dealt with below.
[140]The commissioner's findings are properly grounded in and supported by the
evidence that served before him. The evidence that served before the
commissioner forms a proper basis for such inferences drawn by the
commissioner, adverse to the applicant, in relation to the applicant's conduct.
commissioner, adverse to the applicant, in relation to the applicant's conduct.
The weight of the established facts in the evidence that served before the
commissioner is compelling. The critique of the applicant's conduct offered
211 Arbitration Award, paragraph 74
212 Arbitration Award, paragraph 81
Page 86
by the witnesses called by the first respondent in relation to allegation 2 is
consistent with established facts.
[141] In relation to allegation 2 it is not the case that on the evidence that served
before the commissioner, there were conflicting versions as to whether or not
the applicant did on several occasions and in relation to matters which fell
under Shanmugam's authority approach Roux and others without first
engaging Shanmugam or that on the Property Portfolio incident the applicant
did not leave matters in his line manager's hands.
[142] It cannot reasonably be contended that the facts as to the applicant's conduct
are capable of being displaced or disturbed by an assessment as to the
demeanour of the witnesses, including the applicant, who gave evidence. It
cannot reasonably be contended that Roux and Naidoo were less than candid
in giving their evidence when they were critical of the applicant's bypassing
of Shanmugam. It is so that the commissioner did not accept the applicant's
explanations for his conduct in bypassing Shanmugam. On the evidence that
served before the arbitration proceedings, the commissioner had every
proper basis to do so.
[143]As noted above, the applicant could not dispute nor deny that during
Shanmugam's first meeting as CEO with the whole team, he said words to
Shanmugam to the following effect: "don't try and do what your predecessor
tried to do".213 The applicant did not meaningfully dispute Shanmugam's
evidence that he had uttered those words. Shanmugam testified that "of
course it was disrespectfuf'. 214 On any reasonable assessment, the
applicant's comment was not a neutral comment.
[144]The commissioner in the arbitration award records that "the applicant did not
dispute Mr Shanmugam's evidence about his comment during the very first
meeting. Mr Shanmugam did not simply laugh off this comment. He
213 Record Volume 6, page 344, lines 16 - 21
214 Record Volume 6, page 144, lines 13 - 16
Page 87
interpreted this as an aggressive comment."215 The commissioner's
assessment is consistent with the evidence that served before him.
[145]The commissioner in his arbitration award also records the following:
"The applicant, basically a single witness because his
two witnesses did not necessarily support his version in
all respects and could not corroborate his version. He
may not have lied or made false statements, but his
version amounts to a bald denial of wrongdoing in a case
where he should have explained his actions and failed to
do so. There were also minor aspects of the applicant's
case that were not put to the respondent's witnesses.
The applicant's version is therefore evaluated with
circumspection. "216
[146]This assessment of the commissioner is fair. The evidence given by the
witnesses called by the applicant (Rutters and Manka Sebastian) was not
exculpatory of the applicant in relation to the allegations of misconduct
against him. The evidence of Manka Sebastian is dealt with in further detail
below. During the cross-examination of Shanmugam217 and Roux 218 , it was
indicated that Hilton and Joubert would testify. However, they were not called
as witnesses. In addition, as noted above, the evidence given by the
witnesses called by the first respondent is consistent with the objective facts.
In those circumstances the commissioner was required to assess the version
of the applicant. To the extent that the applicant sought to explain his conduct
as against the weight of the established facts, the commissioner's
assessment that the applicant's version must be evaluated with
"circumspection" is fair.
[147]The commissioner's finding that the applicant's "behaviour had a pattern of
showing disregard for Mr Shanguman's authority" and that the applicant "did
215 Arbitration Award, paragraph 70
216 Arbitration Award, paragraph 72
217 Record Volume 6, page 194, lines 7 - 10 and page 199, lines 5 - 6
218 Record Volume 6, page 71, lines 13 - 16
Page 88
not challenge [Shanmugam] outright, but clearly did not wish to subject
himself to his newly appointed manager's authority''219 is properly grounded
in the evidence that served before him.
[148] It is contended on behalf of the applicant in argument that:
"66. The third respondent failed to attach proper weight
to the fact that the allegations of insolence and
insubordination arise from a handful of emails which
were exchanged almost 9 months prior to the applicant
being charged. The content of the exchange relate to
operational issues and demonstrate a robust exchange
of ideas and opinions which is wholly appropriate
between two senior executives. It is not misconduct for a
senior manager to disagree with his manager on
operational issues. "220
[149]These contentions are not sustainable. The electronic mail exchanges
referred to took place over the period July 2018 up to and including March
2019. The timing and content of those electronic mails has been dealt with
extensively above. It is correct that the matters dealt with in the electronic
mail exchanges relate to matters which in the ordinary course fall under
Shanmugam's authority as the CEO of the Alternatives business. However,
on the evidence that served before the commissioner, the conduct of the
applicant exceeds a "robust exchange of ideas and opinions ... between two
senior executives". 221 The conduct of the applicant, including that as revealed
by the electronic mail exchanges, establishes that the applicant had
bypassed Shanmugam, disrespected Shanmugam as his line manager and
disregarded Shanmugam's authority over him. The fact of approaching Roux
and others cannot reasonably be described as an "exchange of ideas". Those
electronic mails disclose that the applicant bypassed Shanmugam on
operational matters and went directly to Shanmugam's seniors and in the
219 Arbitration Award, paragraph 81
220 Applicant's Heads of Argument, paragraph 66
221 Applicant's Heads of Argument, paragraph 66
Page 89
business. Those electronic mails are not evidence of the applicant engaging
Shanmugam, as his line manager, in an exchange of ideas, whether robust
or otherwise.
[150] It is contended on behalf of the applicant in argument that:
"67. The evidence shows that Shanmugam never
informed the applicant that his communication style or
reporting practices were problematic or offensive to him.
The third respondent's finding that the applicant
should have known to copy his manager into every
email is not supported by any policy or practice and
is unreasonable in the context of a senior
management role. "222
( emphasis added)
[151] The contention that Shan mug am did not inform the applicant that is
'communication style or reporting practices were problematic or offensive' is
dealt with elsewhere. As to the balance of the contentions referred to above,
the arbitration award records, inter a/ia, the following:
"The email correspondence relied on by the respondent,
was not disputed, neither the content of the emails, nor
the identity of the recipients in those cases where emails,
correspondence from the applicant was relied upon. The
applicant's case was that he never acted inappropriately
and there was no need to always send correspondence
to his manager. "223
[152]The commissioner in the arbitration award further records the following:
"I agree that the applicant was not required to send
all documents to his manager. He was required to
222 Applicant's Heads of Argument, paragraph 67
223 Arbitration Award, paragraph 69
send emails related to important issues that could
impact on operations to his manager. "224
( emphasis added)
Page 90
[153] In addition, and at paragraph 81 of the arbitration award the commissioner
records, inter a/ia, the following:
"81. At this level of seniority, it is imperative that people
work together to further their employer's interests. They
are after all spearheading the activities. I accept that
such seniority is also accompanied by years of
experience, know-how and institutional knowledge and
that there will be differences of opinion, even arguments.
But the reporting lines must still be honoured so that
the top structure does not become dysfunctional.
There should be no need to remind senior
colleagues of this obligation. The overall impression
is that the applicant disregarded Mr Shanmugam's
authority over him. "225
(emphasis added)
[154] On a 'fair reading' of the arbitration award the commissioner did not find that
the applicant "should have known to copy his manager into every emai/"226.
The paragraphs of the arbitration award referred to above do not disclose
that the commissioner had made a finding that the applicant was required to
copy Shanmugam into every electronic mail or that the applicant should have
known to copy Shanmugam into every electronic mail. Rather, the
commissioner expressly refers to electronic mails on "important issues that
could impact on operations".
[155] It is readily apparent from a reading of the arbitration award that the
commissioner had an appreciation that senior colleagues in an enterprise
224 Arbitration Award, paragraph 76
225 Arbitration Award, paragraph 81
226 Applicant's Heads of Argument, paragraph 67
Page 91
might hold different views and on occasion might properly disagree. In this
regard, the commissioner specifically records that he accepts that "such
seniority is accompanied by years of experience, know-how and
institutional knowledge and that there will be differences of opinion,
even arguments. "227 This discloses an appreciation on the part of the
commissioner as to "a robust exchange of ideas and opinions"228 between
senior executives. In the circumstances, it cannot reasonably be contended
that the commissioner disregarded a "robust exchange of ideas and opinions
which is wholly appropriate between two senior executives" or that the
commissioner was of the view that disagreements 'or even arguments'
between a senior manager and their manager on operational issues
constitute misconduct.
[156] Further, the commissioner's approach is not one which signals
authoritarianism. The commissioner in his arbitration award expressly
records that he accepts that "such seniority is also accompanied by years of
experience, know-how and institutional knowledge and that there will be
differences of opinion, even arguments. "229 Notwithstanding a balanced
appreciation as to how senior colleagues might interact with each other, it is
the commissioner's assessment that the applicant's behaviour as disclosed
in the evidence that served before him demonstrates a "pattern of showing
disregard for Mr Shanmugam's authority''.230 The commissioner's
assessment and findings are properly grounded in and supported by the
evidence before him.
[157] In relation to allegation 2 there can be no serious or sustainable contention
that the commissioner's reasoning and findings are "entirely disconnected
with the evidence, unsupported by any evidence and involves speculation"
as contemplated in Securitas. 231
227 Arbitration Award, paragraph 81
228 Applicant's Heads of Argument, paragraph 66
229 Arbitration Award, paragraph 81
230 Arbitration Award, paragraph 81
229 Arbitration Award, paragraph 81
230 Arbitration Award, paragraph 81
231 Securitas Specialised Services (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration
& Others (2021) 42 I LJ 1071 (LAC)
Allegation 3: Transformation
[158] The commissioner's arbitration award records the following:
"82. The third allegation of misconduct deals with rules
and standards of conduct which the applicant
should have been aware of In fact, it relates to
issues that are extremely topical. Sanlam's
history is known. It was known that many
Afrikaner white men ran the institution. It seems
even as late as the time of the arbitration hearing,
there were still transformation issues plaguing the
respondent. One glaring example is the Propco
membership. The applicant wished to make out a
case that he created an inclusive environment.
The witness he called, Manka Sebatian, testified
that people were still speaking Afrikaans in the
Sanlam Properties section. This was in breach of
the clear policy to use to English as the workplace
medium of communication. I do not agree with the
submission that she corroborated the applicant's
version. She did not testify that the department
complied fully with the policy, as was submitted.
The matter must be viewed against the legacy of
Apartheid and the ongoing calls for transformation
in business. Ms Brink's evidence about the
transformation strategy and the steps being taken
to sensitise employees to diversity was not
contested.
83. in these circumstances where the applicant must
have been very aware of pressure regarding
transformation and diversity, he and his team
attended a one-day workshop diversity training on
25 March 2019. The Exco members had
previously done the training to set an example and
Page 92
to lead from the top. The applicant left the
workshop early, citing as reason an urgent site
meeting in New/ands. He was informed that the
Stefanutti Stocks MD was highly upset. What
about, was not explained, neither during evidence
nor in the closing submissions. The applicant's
version was that Stefanutti Stocks were
threatening to down tools and leave the site. The
applicant and one Ralph went to the site at about
14:30. The applicant went to the site and gave
certain verbal assurances that satisfied the MD, it
was testified. There is no merit in the submission
that had the applicant not gone to the site, he
would have been disciplined. He was attending a
workshop that his employer saw as very
necessary and important. Nobody else, but the
applicant thinks that he acted correctly by leaving
the workshop early.
84. Ms Brink's evidence that the after-lunch session
was critical, was not disputed. The applicant
testified that the workshop presenter said that the
afternoon session would not be critical, cannot be
accepted. Had that been the case, the presenter
would have been called as a witness or at least
some agenda to indicate the sessions of the day,
would have been presented as evidence. This
behaviour did not demonstrate a commitment to
transformation and diversity that his employer was
asking from him. This is further confirmed by his
attitude about the 'power hour' sessions. Had he
been serious to comply, he would have attended
such a session.
Page 93
85. Ms Brink's evidence of having to deal with the
applicant after grievances were laid about
transformation issues, was not questioned.
Neither was her evidence that the contract of an
African graduate was prematurely terminated and
the person paid out the balance of the contract
due to issues between the graduate employee
and the applicant related to inclusivity issues.
These incidents were not the reason for the
dismissal but were relied on to demonstrate the
applicant's pattern of workplace behaviour
regarding transformation and diversity. The
inference, given the past history, the continued
use of Afrikaans and not English as the lingua
franca and this recent conduct is that the applicant
did not display an attitude that he was serious
about transformation and diversity issues within
Sanlam. As a very senior employee it was
incumbent on him to set an example. He did not."
Page 94
[159] The evidence that served before the commissioner includes the following:
159.1 Sanlam Investments, as part of the Sanlam Group, has in place various
initiatives in relation to transformation. In 2005, the Sanlam Investments
Transformation Committee was established.232
159.2 Ms Inge Brink (Brink) has been the Human Resources Business Partner
at Sanlam Investments since 5 September 2016.233 One of her
responsibilities is to drive and manage transformation in the Sanlam
Investments group.234 Brink's evidence includes the following:
"So, the focus areas of the committee is obviously to drive
transformation within the business, which involves a
232 Record Volume 6, page 240 and 241
233 Record Volume 6, page 240
234 Record Volume 6, page 240
number of areas. It is highlighted in the document there
creating a sense of community where we want to create
an environment where all our employees feel safe to come
to work in a harmonized way. The second part is to attract
and retain African black staff, because we obviously know
the history of the Sanlam Group and this has been a
specifically problematic area of the business, in terms of
achieving its employment equity targets and
transformation so this committee also serves to address
that."235
Page 95
159.3 As part of the Sanlam Group, Sanlam Investments has in place
documented policies on Transformation, Employment Equity, policies
dealing with Harassment including Racial Harassment and Unfair
Discrimination and a Language policy.236
159.4 A range of interventions in pursuit of Diversity and Inclusion, including the
Diversity and Inclusion Workshops to be attended by senior executives
and other employees were implemented.
159.5 A Diversity and Inclusion workshop was scheduled and was to be rolled
out by the Sanlam Investments group. The plan was for the workshop to
be rolled out starting with the subcluster of "Exec's", followed by sessions
with Line Managers and thereafter all the employees within the
business.237
159.6 Brink, as Human Resources Business Partner, is responsible for driving
and managing transformation in the Sanlam Investments group, was in
direct communication with the applicant in relation to the scheduled
workshop. The first respondent regarded the Diversity and Inclusion
workshop as important and as part of the broader strategy in pursuit of
Diversity and Inclusion.
235 Record Volume 6, page 241, line 1 - 11
235 Record Volume 2, pages 25 - 39
237 Record Volume 6, page 249, lines 1 -5
Page 96
159.7 The rollout of the workshops included a two-pronged approach for 2019: a
formal Diversity and Inclusion workshop with the second prong, "the sixty
minute power hour sessions where diversity and inclusion is of such a
nature where it is not just that one that just switches on and things change
so it was a formal training session but then also the sixty-minute power
hour sessions where we spoke about various topics related to diversity
and inclusion and those were open to the entire business. "238
159.8 In the recent past the first respondent had dealt with issues in the Sanlam
Properties team related to inclusivity and diversity, including language.239
The outcome of a grievance process was that the applicant was issued
with a final written warning dated 5 October 2016. The final written
warning240 refers to, inter alia, an "exclusionary culture".241 That final written
warning was issued by Kodisang.
159.9 A further outcome of the process was that the Sanlam Properties team
went on a diversity training session early in 2017.242
159.10 The applicant confirms that the final written warning was as a result of'~
language issue' and another inclusivity issue and that it was against that
background that the Sanlam Properties team was prioritised for the
workshop.243
159.11 Another "instance" involved an investment analyst graduate who worked
in the Sanlam Properties team. The working relationship between the
investment analyst and the applicant had eventually become untenable,
part of this was also linked to issues of inclusivity, and the first respondent
238 Record Volume 6, page 249, lines 1 - 26
239 Record, Volume 6, page 243, lines 9 - 13, page 244, lines 1-3 and 18 - 22 and page 245,
lines 1-18
240 Record, Volume 2, page 52
241 Record, Volume 6, page 243, lines 6- 13 and record Volume 2 pages 51 and 52
242 Record, Volume 6, page 245, lines 8 - 18
243 Record Volume 6, page 377, lines 9 - 21 and page 378, lines 1 - 6
Page 97
and the graduate parted ways (her employment contract was terminated
early and she was paid for the duration).244
159.12 Against the background of experiences in the recent past in relation to
inclusivity and diversity (including a grievance in relation to lnclusivity and
Diversity in the applicant's team}, the applicant and his team were
prioritised in attending the Diversity and Inclusion Workshop245. The
Sanlam Properties team was the only team that attended the Diversity and
Inclusion Workshop with their line manager.246 The Diversity and Inclusion
workshop to be attended by the applicant and his team was held on 25
March 2019247 . The applicant did not remain in attendance for the whole
of the workshop.
159.13 The applicant was required to attend the Diversity and Inclusion workshop
and to remain in attendance throughout, including for the "critical piece"
during the after lunch session.
159.14 Brink was in communication with the applicant in relation to him leaving
the scheduled workshop early. "The after lunch session was quite a critical
piece of worlf'. 248
159.15 Roux and others more senior to the applicant made the time to attend the
Diversity and lnclusionworkshop for its full duration.249
159.16 It was "imperative" for the applicant to attend the Diversity and Inclusion
workshop.250
159 .17 On 3 April 2019 Brink sent the applicant an electronic mail. The subject
matter of the electronic mail was "Diversity and Inclusion Workshop". In
the electronic mail Brink writes, inter a/ia, the following:
244 Record, Volume 6, page 246, lines 1 - 15
245 Record, Volume 6, page 377, lines 9 - 21 and page 378, lines 1 - 6
246 Record Volume 6, page 250, lines 10 - 19
247 Record Volume 6, page 250, lines 4 - 17
248 Record Volume 6, page 250 lines 20 - 25 and Record Volume 2 pages 63 - 64
249 Record Volume 6, page 251 lines 17 - 23
250 Record Volume 6, page 251 lines 16 - 23
"Hi Andre,
In arranging the follow up session with the team, I was
made aware by the organisers that you and Ralph had to
leave the session shortly after lunch to attend to
something related to the New/ands Development.
The after lunch session was quite a critical piece of work
especially for building the forward.
Please may you provide me with some context as to why
you had to leave the session before it was concluded as
well as when you became aware that you and Ralph
would need to leave the session early.
Looking forward to your soonest response.
Regards"251 .
Page 98
159.18 Brink's testimony in relation to the applicant leaving the workshop early
includes the following:
"I found it quite absurd and problematic in the sense that
we were on a transformation journey with the broader
business, in terms of what we needed to achieve but
specific to the Properties team because this is an
intervention which was agreed. So, with Andre as the line
manager of the team to leave early, I was quite
shocked. "252
159.19 Later on the afternoon of 3 April 2019, the applicant sent Brink an
electronic mail, copying Ralph Wellhoner. In that electronic mail the
applicant writes the following:
"Hi Inge
251 Record Volume 2, pages 63 and 64
252 Record Volume 6, page 251, lines 1 - 5
We have a R750m development of the New/ands Cricket
stadium. The project manager urgently required us to
attend a session with Stefanutti's, the construction
company, to discuss Sanlam's involvement. The
construction company is currently developing on risk, in
other words they are not getting paid, and wanted
certainty of the commitment from Sanlam otherwise they
would have downed tools. We are on a tight schedule to
complete the development on time and a delay will be
disastrous.
We are in general invited to the Monday managers
meeting but normally do not attend, therefor I accepted
the invite to the workshop. It was a late request from the
project manager to address the concerns from Stefanutti.
I made a call to attend the session with Ralph given it's
importance." 253
Page 99
159.20 Brink's testimony in relation to the applicant's electronic mail to her of 3
April 2019 was the following:
"I didn't feel that it was acceptable, because, by the sheer
nature that it was a cascaded approach. I can understand
that obviously there is a business imperative, something
has happened in the business. If Robert Roux and his
Exco, as the most senior members in this business, take
the time out to attend a full day workshop on Diversity and
Inclusion, and that very same process is rolled out to the
rest of the business, I felt that it was imperative for Andre
to attend the workshop and I didn't feel that this
explanation was acceptable. ,-254
253 Record Volume 2, page 63
254 Record Volume 6, page 251, lines 17 - 23
Page 100
159.21 Brink spoke to Shanmugam and Shanmugam informed her that it was not
acceptable.255
159.22 Part of the approach of the intervention of the workshop was a power hour
session;
159.23 The applicant and other employees were invited to attend the power hour
session;
159.24 The power hour session was linked to the Diversity and Inclusion
Workshop;
159.25 In Brink's assessment, the applicant as a senior leader in the business
should have attended the power hour session to set an example256; and
159.26 The applicant did not attend the power hour session.
159.27 In relation to the "power hour' session Brink's evidence includes the
following:
159.27.1 On 7 May 2019 she received an electronic mail from the applicant.257
159.27.2 In his electronic mail to Brink of 7 May 2019 the applicant writes the
following: "If you have gone to the Diversity Workshop is it necessary to
attend this session? I assume not. "258
159.27 .3 The applicant's electronic mail of 7 May 2019 was in relation to the
"power hour' sessions.259
159.27.4 In her response Brink reiterated that the process rolled out in the
business was two-pronged approach, that the power hour sessions "are
linked to the second prong approach. And, that the invitation is out to all
staff within the business, whether you attend the diversity an inclusion
workshop or not, because as I said, Diversity and Inclusion is not just
255 Record Volume 6, page 261, lines 9 - 16
256 Record Volume 6, page 252 lines 19 - 25
257 Record Volume 6, page 251, lines 24 - 27; Record Volume 2, page 64A and 64B
258 Record Volume 2, page 64B
259 Record Volume 6, page 252, lines 1 - 4
Page 101
something you turn the switch on, it is a series of events that needs to
occur".260
159.27.5 "The power-hour sessions were addressing specific topics related to
diversity and inclusion, so it was all lined". 261
159.27.6 In her electronic mail to the applicant of 7 May 2019 dealing with his
earlier electronic mail of the same day in relation to the power hour
session Brink also records "The invitation is open to all staff in the
business, whether you have attended the Diversity and Inclusion
Workshop or not, as the invitation reads: this Power Hour is open to all
and we encourage full participation. This decision would therefore be up
to you."262
159.27.7 If the applicant did not attend the power hour session, Brink would find
it problematic. "It is the role of the Senior leader to manager diversity
in a particular way. We have got a role to play to drive this agenda
within the business, together with myself and so by Andre not
attending the workshop it makes for a difficult example that is set
for the team. "263
( emphasis added)
159.28 The applicant's evidence under cross-examination in relation to the power
hour session includes the following:
159.28.1 He and others were informed that there would be a follow up to the
Diversity and Inclusion Workshop264;
159.28.2 His question was "is this just a repeat that is just sent to everybody or is
this something new, in other words if you had attended the diversity
workshop, is it required that you attend this and is this something
different. My assumption was that because it was mentioned that this
260 Record Volume 6, page 252, lines 5 - 15; Record Volume 2, page 64A
261 Record Volume 6, page 252, lines 5 - 15
262 Record Volume 2, page 64A
263 Record Volume 6, page 252, lines 19 - 25
264 Record Volume 6, page 383, lines 20 - 27
Page 102
diversity workshop is rolled out to the rest of the staff, my assumption
was that once you get to, I won't say nonexecutives but maybe they
water it down and it becomes an hour so/ didn't know so/ asked her if
you have attended the previous one is this a watered down version of
that one or not"265; and
159.28.3 He did not attend the power hour session, one of the reasons was that
there was a conflict, he could not remember the exact issue266 .
[160] The evidence before the commissioner includes that the first respondent
regarded attendance of the Diversity and Inclusion workshop by the applicant
and other employees, including senior executive employees, as important
and in fact imperative.
[161]One of the issues that the commissioner was required to consider was
whether the applicant had a valid reason to leave the workshop early.
[162] The applicant's version for leaving the workshop early was that he was
informed that the Stefanutti Stocks MD was "highly upsef', that he was
required to attend a meeting on site, that he had a discussion with Stefanutti
Stocks, that he verbally informed Stefanutti Stocks that "given these couple
of steps that we still need to do, final Propco approval, that we are committed,
so he was comfortable to continue. I also had to give him a timeframe"267 .
[163] The commissioner in his arbitration award engages with the applicant's
explanation for leaving the workshop early. In this regard the commissioner
specifically records the following:
"The app(icant left the workshop early, citing as reason
an urgent site meeting in New/ands. He was informed
that the Stefanutti Stocks MD was highly upset. What
about was not explained, neither during the evidence
nor in the closing submissions. The applicant's version
was that Steffanuti Stocks were threatening to down
265 Record Volume 6, page 383, lines 20 - 25 and page 384, lines 1 - 2
266 Record Volume 6, page 384, lines 5 - 9
267 Record, Volume 6, page 380, lines 13 - 20
tools and leave the site. The applicant and one Ralph
went to the site at about 14:30. The applicant went to
the site and gave certain verbal assurances that
satisfied the MD, it was testified. There is no merit in the
submission that had the applicant not gone to the site,
he would have been disciplined. He was attending a
workshop that his employer saw as very necessary and
important. Nobody else but the applicant thinks that he
acted correctly by leaving the workshop early. "268
Page 103
[164] The applicant, in his electronic mail to Brink of 3 April 2019269 records that
Steffanuti Stocks "wanted certainty of the commitment from Sanlam". The
applicant's oral evidence included that Steffanuti Stocks sought a verbal
commitment.270 The improbability of this version was put to the applicant
during cross-examination. It was specifically put to the applicant that his
version is highly improbable, that he could have arranged for a written
commitment from Ian Kirk, a senior person in the business and in those
circumstances "why would your going and giving them this verbal
commitment ... solve this crisis of immense proportions. "271
[165] During the cross-examination of the applicant, his version as to "why the
Stefanutti Stocks MD was highly upset"was probed and tested272 . The record
that served before the commissioner reveals that on the applicant's version,
the Stefanutti Stocks MD required a "verbal commitment". The improbability
of the applicant's version was expressly canvassed on the record that served
before the commissioner. The record that served before the commissioner is
a proper basis for a determination that the applicant's version was
improbable. On a reasonable assessment a written commitment from a
senior person in the business would carry significant weight, more so than a
verbal commitment from the applicant. The contention that the applicant's
268 Arbitration award, paragraph 83
269 Record, Volume 2, page 63
268 Arbitration award, paragraph 83
269 Record, Volume 2, page 63
270 Record, Volume 6, page 380, lines 6 - 31 and page 381, lines 1 - 4
271 Record, Volume 6, page 380, lines 24 - 30
272 Record, Volume 6, page 380, lines 24 - 30 and page 381, lines 1 - 3
Page 104
evidence on this score was "rejected as improbable in the absence of any
evidence to gainsay his version" is unsustainable. On the evidence that
served before the commissioner, no such 'gainsaying' was reasonably
required. On the evidence that served before the commissioner it cannot
reasonably be contended that the applicant had established a factual basis
"sufficiently compelling to warrant the early departure".273
[166] The commissioner in his arbitration award did not find that the applicant had
a valid reason for leaving the workshop early. The commissioner's
assessment is supported by the evidence that served before him. Similarly,
the commissioner's finding that the applicant's contention that he would have
faced disciplinary action as being unmeritorious is grounded in the evidence
that served before him.
[167] In relation to the applicant leaving the workshop early and the applicant not
attending the power hour session, the commissioner records, inter alia, the
following in the arbitration award:
"83. In these circumstances where the applicant must
have been very aware of pressure regarding
transformation and diversity, he and his team
attended a one-day workshop diversity training on
25 March 2019. The Exco members had
previously done the training to set an example
and to lead from the top. The applicant left the
workshop early, citing as reason an urgent site
meeting in New/ands. He was informed that the
Stefanutti stocks MD was highly upset. What
about, was not explained, neither during evidence
nor in the closing submissions. The applicant's
version was that Stefanutti stocks were
threatening to down tools and leave the site. The
applicant and one Ralph went to the site at about
14h30. The applicant went to the site and gave
273 Applicant's Heads of Argument, paragraph 55
certain verbal assurances that satisfied the MD, it
was testified. There is no merit in the submission
that had the applicant not gone to the site, he
would have been disciplined. He was attending a
workshop that his employer saw as very
necessary and important. Nobody else, but the
applicant thinks that he acted correctly by leaving
the workshop early.
84 Ms Brink's evidence that the after-lunch session
was critical, was not disputed. The applicant
testified that the workshop presenter said that
the afternoon session would not be critical,
cannot be accepted. Had that been the case,
the presenter would have been called as witness
or at least some agenda to indicate the sessions
of the day would have been presented as
evidence. This behaviour did not
demonstrate a commitment to
transformation and diversity that the
employer was asking from him. This is
further confirmed by his attitude about the
"power hour" sessions. Had he been
serious to comply, he could have attended
such a session. "274
(emphasis added)
Page 105
[168] The commissioner's determination that the applicant's behaviour "did not
demonstrate a commitment to transformation and diversity that the employer
was asking from him" 275 is grounded in the applicant leaving the Workshop
early (without a valid reason) and the applicant's failure to attend the power
hour session. On the evidence that served before the commissioner, which
274 Arbitration Award, paragraphs 83 and84
275 Arbitration Award, paragraphs 83 and84
Page 106
includes a range of interventions by the first respondent in pursuit of
lnclusivity and Diversity, that the first respondent regarded attendance of the
Diversity and Inclusion workshop by the applicant and other employees,
including senior executive employees, as important and in fact imperative,
that the power hour session was linked to the Diversity and Inclusion
Workshop, Brink's assessment that as a senior leader the applicant should
have attended the power hour session to set an example and the applicant
not attending the power hour session on the basis of a 'conflict' or reason that
he could not recall, the commissioner had a proper basis for his finding that
the applicant's behaviour "did not demonstrate a commitment to
transformation and diversity that his employer was asking from him"276.
The Evidence of Manka Sebastian
[169] Ms Manka Sebastian (Sebastian) was called as a witness by the applicant.
[170] Sebastian was referred to the Language Policy.277 The Language Policy
includes the following:
• "The internal business language within South
African operations is English. To this end, the
language of emails, meetings, business
discussions, presentations, policies, internal
broadcasts and the Intranet is English. Social
talk between colleagues will be in the language
of their choice. However, when joined by
colleagues who do not share their language
fluency, in the interests of courtesy and
inclusivity, English will be reverted to.
6. Legacy issues pertinent to South African
Business
276 Arbitration Award, paragraph 84
277 Record, Volume 2, pages 52A- 52D and Record, Volume 6, page 399, lines 1- 15
Given Sanlam's Afrikaans heritage and legacy, it is
understood that the Afrikaans language is
embedded in certain internal systems and
processes. Business are required to ensure plans
are in place to mitigate the risk this presents from a
diversity and inclusion perspective.
8. Enforcement
Leaders are required to both role model and ensure
adherence to the language policy. It is a
strategically important policy which underpins our
diversity and inclusion goals, both of which are key
drivers talent acquisition and retention. Employees
who do not adhere to the policy despite
sensitization and support, will be disciplined in line
with the disciplinary codes of the businesses they
form part of "278
Page 107
[171] It is contended on behalf of the applicant that in relation to allegation 3.1
which dealt with the continued use of Afrikaans in the Sanlam Properties
team, that "there was no admissible evidence by the first respondent to
sustain the charge. In the absence of evidence to discharge this onus, the
third respondent misconstrued Sebastian's evidence regarding the use of
Afrikaans in the department. Sebastian testified that when Afrikaans was
spoken on the office floor, it was socially and had nothing to do with her
role".279 On the evidence that served before the commissioner, this contention
is unsustainable.
[172] Sebastian's evidence indicates that Afrikaans was used as a language of
communication in the Sanlam Properties team, especially during the first
278 Record, Volume 2, pages 52C - 52D
279 Applicant's Heads of Argument, paragraph 50
Page 108
three months of her employment (January 2019 to March 2019).280 This
includes an electronic mail in "Afrikaans on instructions that [Sebastian] was
eventually responsible for carrying ouf'.281 Further, Sebastian's evidence
includes that Afrikaans was spoken "on the office floor' socially and that
whenever it had to do with her role and if she heard her name, then she would
go to the person and ask whether there was anything that she needed to
know about.282 Self-evidently, Sebastian's evidence went further than "when
Afrikaans was spoken on the office floor "it was socially and had nothing to
do with her role".283 On Sebastian's evidence, the use of Afrikaans included
matters dealing with her role. Even the 'sociaf use of Afrikaans in
Sebastian's presence is conduct inconsistent with the Language Policy as it
relates to 'Social Talk' and having to revert to English in the interests of
inclusivity.284 The import of Sebastian's evidence as to Afrikaans being used
as a language of communication is conduct in the Sanlam Properties team
inconsistent with and in breach of the Language Policy. Properly construed,
Sebastian's evidence does not demonstrate compliance with the Language
Policy.
[173] In the arbitration award the commissioner records, inter alia, the following:
"The applicant wished to make out a case that he
created an inclusive environment. The witness he
called, Manka Sebastian, testified that people were
still speaking Afrikaans in the Sanlam Properties
section. This was in breach of the clear policy to
use English as the workplace medium of
communication. I do not agree with the submission
that she corroborated the applicant's version. She
did not testify that the department complied fully
with the policy as was submitted. The matter must
280 Record, Volume 6, page 398, lines 12 - 17 and page 403, lines 10 - 17
281 Record, Volume 6, page 398, lines 12 - 17 and page 403, lines 8 - 16
282 Record Volume 6, page 403, lines 12-17
282 Record Volume 6, page 403, lines 12-17
283 Applicant's Heads of Argument, paragraph 50
284 Record Volume 2, pages 52A- 52D
be viewed against the legacy of Apartheid and the
ongoing calls for transformation in business. Ms
Brink's evidence about the transformation strategy
and the steps being taken to sensitise employees
to diversity was not contested. ''285
Page 109
[17 4] It is contended on behalf of the applicant in argument, inter a/ia, that the "third
respondent failed to attach appropriate weight to Sebastian's evidence
ostensibly because she was the applicant's junior and "had to yield to his
authority"".286 It is further contended on behalf of the applicant in argument
that the commissioner's "mischaracterization of Sebatian's evidence as well
as the dismissive attitude towards the veracity of her evidence had a
distorting effect on the third respondent's assessment of her credibility and
his ultimate findings". 287
[175] The contentions on advanced on behalf of the applicant are not sustainable.
It is indeed so that Sebastian was the applicant's junior. The evidence that
served before the commissioner, including the evidence of Sebastian herself,
establishes that Afrikaans was still being used as a language of
communication in the Sanlam Properties team. The commissioner could
hardly ignore or dismiss that evidence. In the circumstances, it cannot
reasonably be contended that in relation to non-compliance with the
Language Policy the commissioner "failed to attach appropriate weight to
Sebastian's evidence", had a "dismissive attitude towards the veracity of'
Sebastian's evidence or that he 'mischaracterised' Sebastian's evidence.
[176] The issue is not whether in Sebastian's view there was compliance with the
Language Policy. The commissioner's assessment as to a breach of the
Language Policy and that the Language Policy was not fully complied with is
grounded in and supported by the evidence that served before him.
285 Arbitration Award, paragraph 82
286 Applicant's Heads of Argument, paragraph 52
287 Applicant's Heads of Argument, paragraph 53
Page 110
[177] Sebastian's evidence as to her positive experience with the applicant as a
member of the Sanlam Properties team is dealt with more fully below.
[178] The evidence that served before the commissioner included that of Brink and
her dealing with issues and a grievance related to "an environment that
wasn't conducive in terms of inclusivity". 288 The final written warning289 refers
to, inter alia, an "exclusionary culture".290 On the evidence that served before
the commissioner, Brink's concerns in relation to lnclusivity and Diversity in
the Sanlam Properties team were real and documented. Shortly after her
appointment Brink dealt with concerns and a grievance related to lnclusivity
and Diversity. Brink was directly involved in those processes.
[179]The evidence in relation to an 'instance' involving a parting of the ways with
an investment analyst graduate291 did not include evidence that the first
respondent had taken disciplinary steps or action against the applicant. On
the evidence before the commissioner, the first respondent's legal
representative notes expressly that it was part of the "background to the
steps" later taken by Brink in respect of the applicant and his team and the
diversity training workshops292.
[180] The record that served before the commissioner reveals that when these
issues were canvassed, the applicant's legal representative objected. 293 The
first respondent's legal representative expressly stated, inter alia, that the
purpose was not to present the issues as similar fact evidence. 294 That
approach was cautious and fair.
[181]As noted above, the evidence of the applicant confirms that the final written
warning was as a result of 'a language issue' and another inclusivity issue
288 Record Volume 6, lines 90 - 13
289 Record, Volume 2, page 52
290 Record, Volume 6, page 243, lines 6 - 13 and record Volume 2 pages 51 and 52
291 Record, Volume 6, page 246, lines 1 - 15
292 Record, Volume 6, page 238, lines 13 - 24 and page 247, lines 1 - 12
292 Record, Volume 6, page 238, lines 13 - 24 and page 247, lines 1 - 12
293 Record, Volume 6, page 244, lines 8 - 11
294 Record Volume 6, 238, lines 13 - 24, page 243, lines 21 - 25 and page 244, lines 12 - 15
Page 111
and that it was against that background that the Sanlam Properties team was
prioritised for the workshop.295
[182] On the evidence that served before the commissioner, !he fact that the
applicant was issued with a final written warning in October 2016 valid for 12
months does not have the consequence that the first respondent did not have
ongoing concerns. Whilst it is so that the final written warning was valid for
12 months and in a technical legal sense was not operative during 2019, the
first respondent had ongoing concerns in relation to inclusivity and diversity
in the Sanlam Properties team. Brink's evidence includes that during
November 2018 she took certain steps and engaged the applicant in an
attempt to avoid a "repeat of what previously transpired in the team" 296_ In
addition to those steps, the first respondent's ongoing concerns informed the
Sanlam Properties team being prioritised for interventions related to
transformation. 297 Brink's evidence on this score and past incidents related to
inclusivity and diversity issues do not fall into the category of inadmissible
evidence. The contention as to a 'poisoning of the welf is not sustainable.
[183] There is no room for any contention that the commissioner had not engaged
with the record that served before him. This is further underscored by the
commissioner in his process ruling of 23 August 2023 in which he records,
inter alia, "I have listened to the entire recording and controlled the transcript
in doing so. I also made my own notes from the recordings I encountered
occasional mistakes in the transcript. "298
[184] Part ofSebastian's evidence was to the effect that in her assessment as an
employee in the Sanlam Properties team, she had a positive experience.
Sebastian's evidence included that "we are a unit. We have mutual respect
for each other's capabilities and what we bring to the team".299
295 Record Volume 6, page 377, lines 9 - 21 and page 378, lines 1 - 6
296 Record Volume 6, page 247, lines 1 - 14
296 Record Volume 6, page 247, lines 1 - 14
297 Record, Volume 6, page 247, lines 17 - 23 and page 248, lines 15 - 18
298 Record Volume 7, page 58
299 Record, Volume 6, page 400, lines 1 - 8
Page 112
[185] The commissioner's assessment that the "dynamics" in the relationships
between the applicant and Sebastian on the one hand and the applicant and
Shanmugam on the other hand "were completely differenf' is properly
grounded in the evidence that served before him. The applicant reported to
Shanmugam and was subject to Shanmugam's authority. That is indeed a
different dynamic to the applicant as line manager of the Sanlam Properties
team.
[186]The fact of Sebastian's evidence as to her positive experience i.n the team,
including her evidence as to the applicant's positive contribution during the
workshop 300 is hardly an insurmountable hurdle to a conclusion that the
applicant "excluded, bypassed or sidelined Mr Shanmugham as a person of
colour''301 or a determination by the commissioner that the applicant's
behaviour "did not demonstrate a commitment to transformation and diversity
that his employer was asking from him"302 and that the applicant "did not
display an attitude that he was serious about transformation and diversity
issues within Sanlam. As a very senior employee it was incumbent on him to
set an example. He did not. ""303.
[187] Sebastian's evidence does not address the applicant leaving Diversity and
Inclusion Workshop early without a valid explanation or the applicant's failure
to attend the power hour session. Sebastian's evidence does not include a
factual version addressing those aspects (early departure and failure to
attend the power hour session). Absent such a version from Sebastian, it
cannot reasonably be contended that the commissioner had a 'dismissive
attitude' to Sebastian's evidence on those aspects. On the evidence before
the commissioner, Sebastian's evidence as to the applicant's participation in
the workshop 304 for the limited period of his attendance is no substitute for full
duration attendance (including the critical piece after lunch) which his
employer regarded as important and imperative or the applicant's failure to
employer regarded as important and imperative or the applicant's failure to
300 Record Volume 6, page 400, lines 18 - 24
301 Record Volume 2, page 3 and Arbitration Award, paragraphs 87 and 88
302 Arbitration Award, paragraph 84
303 Arbitration Award, paragraph 85
304 Record Volume 6, page 400, lines 9 - 24
Page 113
attend the power hour session. To the extent that it is contended that
Sebastian's evidence impacts the evidence in relation to the applicant leaving
the workshop early or his failure to attend the power hour session, this is
unsustainable. Sebastian's evidence does not displace the weight of the
evidence in relation to Diversity Workshop and power hour session which
properly supports the commissioner's findings.
[188) Earlier in the arbitration award, at paragraph 84, and in relation to the
applicant leaving the Workshop (without a valid reason) and the applicant's
failure to attend the power session, the commissioner determined that the
applicant's "behaviour did not demonstrate a commitment to transformation
and diversity that his employer was asking from him"305 .
[189) In the arbitration award at paragraph 85 the commissioner records, inter a/ia,
"The inference, given the past history, the continued use of Afrikaans and not
English as the lingua franca and this recent conduct is that the applicant did
not display an attitude that he was serious about transformation and diversity
issues within Sanlam. As a very senior employee it was incumbent on him
to set an example. He did not."
[190) The past history (being related to diversity and inclusivity issues including a
grievance), the first respondent's ongoing concerns with inclusivity and
diversity in the Sanlam Properties team, the continued use of Afrikaans as
established in the evidence, and the recent conduct which includes leaving
the Diversity and Inclusion Workshop early (without a valid reason) in
circumstances where it was important and imperative that he remained in
attendance throughout and the applicant's failure to attend the power hour
session, formed part of the evidence that served before the commissioner.
In relation to the past, the commissioner specifically records that "These were
not the reason for the dismissaf'. The inference drawn by the commissioner,
not the reason for the dismissaf'. The inference drawn by the commissioner,
that the applicant "did not display an attitude that he was serious about
transformation and diversity issues within Sanlam"306 is grounded in and
supported by the evidence that served before him. On a 'fair reading' of the
305 Arbitration Award, paragraph 84
306 Arbitration Award, paragraph 85
Page 114
award, it is readily apparent that the commissioner's finding is based on the
full spectrum of the evidence that served before him rather than simply
latching onto one aspect. The broader context was the applicant's
'transformation obligations'.307 The commissioner's findings must be
assessed in context, "on the totality of the evidence not on a fragmented
piece meal analysis." 308
[191] In the result, the contention that the commissioner "improperly relied on that
inadmissible evidence to draw an inference about the applicant's pattern of
workplace behaviour regarding transformation and diversity in order to
conclude that "he did not display an attitude that he was serious about
transformation and diversity within Sanlam"309 is not sustainable.
[192] It is contended on behalf of the applicant:
"Save for one instance in which she received an email
in Afrikaans from a colleague and which was corrected
immediately, Sebastian's evidence demonstrated that
there was compliance with the Language policy as well
as undisputed evidence regarding the applicant's
inclusive management style and commitment to
diversity within his department. The third respondent
failed to attach appropriate weight to Sebastian's
evidence ostensibly because she was the applicant's
junior and "had to yield to his authority". "310
[193]As dealt with extensively above, Sebastian's evidence properly construed
does not demonstrate that there was compliance with the Language Policy.
Of no small significance, the evidence before the commissioner establishes
that Afrikaans was still being used as a language of communication in the
Sanlam properties team during the period January to March 2019. Whilst it
307 Record Volume 2, page 3
308 Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mining) v CCMA and Others [2014] 1 BLLR 20
(LAC) and at paragraph 21
309 Applicant's Heads of Argument, paragraph 54
310 Applicant's Heads of Argument, paragraph 52
Page 115
is so that Sebastian's evidence includes a positive experience that she had
with the applicant,, it cannot reasonably be contended that Sebastian's
evidence establishes "undisputed evidence regarding the applicant's
commitment to diversity within his departmenf'.
[194] It is contended on behalf of the applicant that:
"Once again Sebastian's evidence regarding the
applicant's participation in and contribution to the
Diversity and Inclusion workshop was discounted out of
hand. Similarly, the applicant's evidence regarding his
reason for leaving the workshop early was rejected as
improbable in the absence of any evidence to gainsay
his version. Other than labelling the reason as
"unacceptable" the first respondent failed to adduce any
evidence to refute that the applicant was called to an
urgent meeting with a developer, that he considered it
necessary to attend to protect the first respondent's
interests and that the reason for the meeting was
sufficiently compelling to warrant the early
departure. "311
[195] The fact of Sebastian's views as to the applicant's participation in the
workshop is not evidence to address the first respondent's concern that the
applicant had left the workshop early (without a valid explanation) in
circumstances where it was important and in fact imperative that he attend
the workshop for its full duration. The applicant's evidence in seeking to
explain why he left the Diversity and Inclusion workshop early, including the
improbability of that version has been dealt with extensively above. In
addition, the commissioner's arbitration award includes the following: "Ms
Brinks's evidence that the after-lunch was critical, was not disputed. The
applicant testified that the workshop presenter said that the afternoon session
would not be critical, cannot be accepted. Had that been the case, the
311 Applicant's Heads of Argument, paragraph 55
Page 116
presenter would have been called as a witness or at least some agenda to
indicate the sessions of the day, would have been presented as evidence". 312
[196] This demonstrates that the commissioner did consider and reflect upon the
applicant's evidence.
[197] The contention that Sebastian's evidence was "discounted out of hand" is not
sustainable.
[198]At paragraph 58 of the arbitration award the commissioner self-evidently
reflected on the evidence of Sebastian. Later in the arbitration award and at
paragraph 87, the commissioner considers and analyses that evidence. As
dealt with above, the commissioner engaged with the evidence of Sebastian
and his analysis includes the dynamics of the relationship between Sebastian
and the applicant on the one hand and Shanmugam and the applicant on the
other hand. That analysis can hardly be faulted. The commissioner also
records that Sebastian "could not comment on the applicant's relationship
with Mr Shanmugham"313 . Such an engagement with the evidence of
Sebastian as is recorded in the arbitration award cannot reasonably be
described as Sebastian's evidence being "discounted out of hand'. On a
proper analysis, Sebastian's evidence as dealt with by the commissioner,
including at paragraph 58 of the arbitration award, does not displace the
weight of the evidence as to the applicant's conduct in relation to
Shanmugam (allegation 2), the applicant leaving the Diversity and lnclusivity
workshop without a valid reason and the applicant's failure to attend the
power hour session (allegation 3.2). Sebastian's evidence must be
considered against the weight of the other evidence. In the circumstances, it
cannot reasonably be contended that the commissioner "discounted"
Sebastian's evidence "out of hand". It is the commissioner's duty to consider
the evidence. It is readily apparent that the commissioner considered the
evidence of Sebastian and did not regard that evidence as displacing the
evidence of Sebastian and did not regard that evidence as displacing the
other evidence that served before him. This does not disclose misconduct in
312 Arbitration Award, paragraph 84
313 Arbitration Award, paragraph 87
Page 117
relation to his duties as a commissioner, gross irregularity in the conduct of
the proceedings or that the cqmmissioner exceeded his powers.
'Race Based allegations as an Afterthought'
[199] It is contended on behalf of the applicant in argument that "the only plausible
inference to be drawn from the proven facts is that the race-based allegations
were contrived as an afterthought to bolster the disciplinary charges against
the Applicant in order to secure a dismissaf'. 314 This is a serious contention.
In effect it attributes malice to Shanmugam and the first respondent.
[200] It is further contended that the commissioner failed to consider the context in
which the applicant was dismissed. Under this heading it is contended that
when first the applicant faced allegations of misconduct, during March 2019
it was communicated to him that the most serious sanction he would face
was a final warning.315
Disciplinary Meeting
[201] Brink gave evidence in relation to a disciplinary meeting scheduled for 18
March 2019. Brink was specifically referred to an electronic mail from
Shanmugam dated 13 March 2019 to the applicant and copied to Brink.316
Brink's evidence on this score includes the following:
201.1 A disciplinary meeting was scheduled for 18 March 2019. She attended
the meeting.317
201.2 The purpose of the meeting was a disciplinary discussion based on the
electronic mails in which Shanmugam had "laid out acts of misconduct,
acts of serious misconduct''Jis. The applicant attended the meeting in
314 Applicant's Heads of Argument, para 47
315 Applicant's Heads of Argument, paragraph 43
316 Record, Volume 2, page 95 - 96
317 Record, Volume 6, page 254, lines 15 - 19
318 Record, Volume 6, page 255, lines 1 - 2
Page 118
Johannesburg.319 The outcome of a disciplinary meeting is that a sanction
will be awarded.320
201.3 The disciplinary meeting was not concluded. On 20 March 2019 the
applicant sent an electronic mail to Brink.321 In that email the applicant
records, inter alia, that he has considered the allegations at the disciplinary
meeting and the additional information, that he did not believe that
Shanmugam is independent and can give a fair assessment on proof of
the allegations, nor be fair on determining the sanction and the applicant
proposed that an independent person be appointed to determine if the
allegations are found to have substance. 322
201.4 At the time of the disciplinary meeting "there is no talk of dismissal" and
that was because this was a disciplinary meeting.323
201.5 The process of the disciplinary meeting was stopped. The first respondent
subsequently decided to embark on a disciplinary hearing. For that
purpose it appointed a firm of attorneys and an independent person to act
as chairperson. The applicant was also afforded the right to legal
representation in the disciplinary hearing. 324
[202] On the evidence that served before the commissioner, the first respondent
convened a disciplinary hearing on written notice to the applicant. The notice
is dated 16 April 2019.325
[203] It is contended on behalf of the applicant that the notice of allegations of
misconduct of 16 April 2019 included the "added sting of racial discrimination
319 Record, Volume 6, page 255, lines 3 - 8
320 Record, Volume 6, page 255, lines 9 - 10
321 Record, Volume 2, page 97
322 Record, Volume 6, page 255, lines 16 - 23
323 Record, Volume 6, page 260, lines 16 - 22
324 Record, Volume 6, page 256, lines 1 - 11
325 Record, Volume 2, pages 1 - 4 and 119; Record Volume 6, page171, lines 21 - 23
Page 119
and anti-transformation allegations and the possibility of a sanction of
dismissal". 326
[204] On the evidence that served before the commissioner the applicant was
dismissed after being found guilty of several allegations of misconduct327 as
recorded in the disciplinary enquiry notice dated 16 Apil 2019.
[205] The dispute before the commissioner, as recorded in the 6 June 2023 pre
arbitration minute was the alleged unfair dismissal of the applicant. The
applicant contends that his dismissal was substantively unfair. The applicant
did not challenge the procedure followed by the first respondent. In
challenging the substantive fairness, the applicant contended that his
dismissal was substantively unfair "as the allegations against him were not
proven".328 The pre-arbitration minute of 6 June 2023 specifically records that
the commissioner needs to decide whether the applicant "is guilty of the
charges against him including discriminatory conduct on the basis of
colour''.329 It is necessarily so, that the allegations which the applicant
contends were not proven, are those in the notice dated 16 April 2019.
[206] It is contended on behalf of the applicant in argument that: "the amplified
charge sheet issued to the applicant on 16 April 2019 was premised on the
same allegations which formed part of the first charge sheet, save for the
added sting of racial discrimination and anti-transformation allegations and
the possibility of a sanction of dismissal. The amplified charge sheet did not
contain any new facts that were not within the knowledge of Shanmugam or
Brink at the time that they issued the first charge sheet. "330
[207] The fact of the disciplinary meeting of 18 March 2019 and the subsequent
notice to attend the disciplinary enquiry of 16 April 2019 does not disclose
any unfairness on the part of the first respondent. On the evidence that
served before the commissioner, following the disciplinary meeting of 18
326 Applicant's Heads of Argument, paragraph 45
326 Applicant's Heads of Argument, paragraph 45
327 Record, Volume 2, pages 1 - 4 and page 119 and Record Volume 6, page 173, lines 14 - 22
328 Record, Volume 1, page 57, paragraphs 14 - 16
329 Record, Volume 1, page 66, paragraph 42
330 Applicant's Heads of Argument, paragraph 45
Page 120
March 2019 the first respondent was not precluded from issuing the notice of
16 April 2019 when it did and in the terms that it did.
[208] There is nothing extraordinary or unusual or unfair about the fact that an
employer might take disciplinary action against an employee in relation to
events that transpired several months before the notice to attend a
disciplinary enquiry is issued.
[209] The events and circumstances which informed allegation 2, took place over
a period of time: Propco (July 2018); Congratulatory electronic mail (12 July
2018); Nelspruit Development (28 August 2018); MOU electronic mail (28
August 2018); Tender documents (29 August 2018); Newlands Development
(12 December 2018 and 8 February 2019); Wood transaction electronic mail
(13 March 2019); Property Portfolio incident (SMMI) April 2019. It cannot
reasonably be contended that there was any undue delay between the dates
of these events and the notice to attend the disciplinary hearing dated 16 April
2019. Similarly, it cannot reasonably be contended that there was any undue
delay on the part of the first respondent in taking disciplinary action in relation
to allegation three.
[21 OJ Further, the events and circumstances extend beyond August 2018 and
include 'incidents' during April .2019. In the circumstances it is not common
cause that the "incidents which underpin the allegations of racial
discrimination under Allegation 2 occurred primarily during certain email
exchanges between Shanmugam and the applicant during July and August
2018".331
[211] It is further contended that the allegations in support of allegation 3 "were
within the knowledge of the first respondent at the time of the first charge
sheet but were inexplicably not included. The third respondent erroneously
fails to draw any adverse inference from the absence of an explanation for
this omission especially given the gravity of the allegations and their impact
on the sanction. "332
331 Applicant's Heads of Argument, paragraph 41
on the sanction. "332
331 Applicant's Heads of Argument, paragraph 41
332 Applicant's Heads of Argument, paragraph 48
Page 121
[212]As noted above, the allegations of misconduct recorded in Shanmugam's
electronic mail to the applicant of 13 March 2019 were the subject of a
disciplinary meeting which took place on 18 March 2019. The process of the
disciplinary meeting was not concluded. The first respondent decided to
embark on a formal disciplinary hearing and for that purpose it appointed a
firm of attorneys and an independent person to act as chairperson of the
disciplinary hearing.333 The fact that the notice of the disciplinary hearing (16
April 2019) is different to Shanmugam's electronic mail to the applicant of 13
March 2019 does not disclose any unfairness. The fact that Shanmugam's
electronic mail to the applicant of 13 March 2019, which formed the. subject
of the scheduled disciplinary meeting of 18 March 2019, does not include
allegations of "discriminatory conduct on the basis of race" or matters referred
to in allegation 3 of the disciplinary hearing notice of 16 April 2019 does not
disclose any unfairness and does not amount to an 'omission' requiring
explanation by the first respondent. The factual matter which informed
allegation 3 is recorded in the 16 April 2019 notice. On the evidence before
the commissioner, self-evidently, the first respondent decided to convene a
formal disciplinary hearing and for that purpose was required to and did
record allegations of misconduct. In doing so, the first respondent was not
bound by the content of Shanmugam's electronic mail to the applicant of 13
March 2019.
[213]In relation to developments leading to the 16 April 2019 notice the rather
straight forward evidence that served before the commissioner includes
Shanmugam'sevidence:
213.1 at the time of the disciplinary meeting, he was considering a final written
warning as a sanction; 334
213.2 after the termination of the disciplinary meeting the business had more
time to consider the allegations against the applicant; 335
333 Record Volume 6, page 265, line 1 - 11
333 Record Volume 6, page 265, line 1 - 11
334 Record Volume 6, page 179 lines 6 - 24 and page 180 line 1 - 13
335 Record Volume 6, page 179 line 6 - 24 and page 180 line 1 - 13
Page 122
213.3 he considered "all of these" matters and thought about why the applicant
was treating him in this manner; 336
213.4 he thought about "what could have been the possible reasons, you know,
for Andre not respecting me and having disregard for my position as his
superior"; 337
213.5 having thought about it in the context of his qualifications and experience,
he concluded that "perhaps it is race". 338
[214] Brink's evidence on developments leading to the 16 April 2019 notice
includes "consultation with the business".339
[215] Shanmugam did not when first the applicant bypassed him come to the
conclusion that "perhaps it is race". During his cross-examination
Shanmugam's evidence includes the following:
215.1 It was put to Shanmugam that at the time of the Congratulatory email
incident (12 July 2018), Shanmugamtook issue some eight or nine months
later. Shanmugam' response was that: "So, at the time, you know, I felt
that it was disappointing, but I didn't respond to it, I don't think any
reasonable manager would have done this if he is trying to build his
relationship"340 .
215.2 in relation to the MOU incident of 29 August 2018, it was put to
Shanmugam that he did not take exception to that incident until March
2019. Shanmugam's response included that "I was trying to build this
relationship". 341
[216]After 18 March 2019 Shanmugam considered "all of these" matters and
thought about why the applicant was treating him in this manner.342 On the
336 Record Volume 6, page 179 line 6 - 24 and page 180 line 1 - 13
337 Record Volume 6, page 168 - line 7 to page 169, line 17
338 Record Volume 6, page 168 line 7 to page 169 line 17
339 Record Volume 6, page 26, line 18
340 Record Volume 6, page 208, lines 1 - 4
341 Record Volume 6, page 213, lines 10- 12
342 Record Volume 6, page 179, lines 6 - 24 and page 180, 1 - 13
Page 123
evidence before the commissioner, considered reflection and "consultation
with the business" do not evince an improper motive and can hardly be
penalised.
[217] The Diversity and Inclusion Workshop took place on 25 March 2019, after the
electronic mail of 13 March 2019 and the 18 March 2019 meeting.
[218] On the evidence before the commissioner the fact that the electronic mail of
13 March 2019 did not include allegations of discrimination based on race
was dealt with. In the circumstances, there was no factual or other basis for
the commissioner to draw an adverse inference as contended for. There was
no "omission" which required explanation.
[219] It is readily apparent from a reading of the arbitration award that the
commissioner grappled with the evidence that served before him. The
commissioner's observations include the following: "If understand his
argument, it is that Mr Shanmugam fabricated the race issue to bolster the
respondent's case"343. Self-evidently, the commissioner was alive to the
contention that the "race-based allegations were contrived as an afterthought
to bolster the disciplinary charges against the applicant in order to secure a
dismissal". 344
[220] It cannot reasonably be contended that considered reflection and
"consultation with the business" amount to an afterthought to bolster the first
respondent's case to secure a dismissal.
[221] On the evidence that served before the commissioner, following the
disciplinary meeting of 18 March 2019, the first respondent was not precluded
from issuing the subsequent 16 April 2019 notice to attend the disciplinary
enquiry. The 16 April 2019 notice records, at some length, the allegations of
misconduct.345
[222] In relation to the "race-based allegations", so called, it is contended on behalf
of the applicant in argument that "Additionally, and in its haste to dismiss the
343 Arbitration Award, paragraph 87
344 Applicant's Heads of Argument, paragraph 47
345 Record Volume 2, pages 3-4
Page 124
applicant, the first respondent failed to comply with the process prescribed in
its Racial Harassment and Unfair Discrimination Policy". 346
[223) This contention is unsustainable. As noted above, in referring an alleged
unfair dismissal dispute to the CCMA and in the binding pre-arbitration
minute, the applicant does not take issue with the procedure adopted by the
first respondent. The pre-arbitration minute specifically records that the
arbitrator is required to determine whether the applicant "is guilty of the
charges against him including discriminatory conduct on the basis of
colour". 347
[224) The first respondent does indeed have in place a number of policies including
the Racial, Harassment and Unfair Discrimination Policy (the Policy). The
Policy and at paragraph 7 records, inter a/ia, "The following complaints
process may be followed or where applicable the business cluster's existing
grievance procedure". 348 Paragraph 8 of the Policy is a guideline for
managers. 349 It is trite that the provisions of policies of this nature are a guide.
There can be no serious or sustainable suggestion or contention that the first
respondent did not have concerns as to possible discriminatory conduct by
the applicant.
[225) The allegations of misconduct, including those related to discriminatory
conduct, are recorded in the notice of the disciplinary enquiry dated 16 April
2019.350 On the record that served before the commissioner, the applicant
knew and understood the allegations of misconduct against him and had a
reasonable opportunity to prepare and to state a case in his defence. On the
record before the commissioner, the applicant did not at any material time
contend that the first respondent's allegations of misconduct in relation to
discriminatory conduct are flawed for want of compliance with its internal
policies.
346 Applicant's Heads of Argument, paragraph 47
347 Record, Volume 1, page 66, paragraph 42
348 Record, Volume 2, pages 33 - 39
347 Record, Volume 1, page 66, paragraph 42
348 Record, Volume 2, pages 33 - 39
349 Record, Volume 1, page 66, paragraph 42
350 Record, Volume 2, pages 1 - 4
Page 125
[226) During the cross-examination of Brink, no contentions were made as to non
compliance by the first respondent with its applicable policies.
[227) In addition, the applicant in his evidence in relation to the issue of "race" in
the allegations of misconduct does not give evidence to the effect that the
first respondent did not comply with its policies. The applicant's evidence
does include the following: "I was never aware up to that point that race was
an issue. It was never brought to my attention. So it was interesting to me
that it was added to the term sheet. "351
Allegation 3.3
[228) In the arbitration award the commissioner records the following:
"86. The last issue to determine regarding the
allegations of misconduct is the reason why Mr
Shanmugham was disrespected or bypassed. I
had already found that the applicant disrespected
his authority over him. Mr Shanmugham's
evidence was that he did not know what motivated
the applicant. He did some introspection and
thought that he is competent otherwise he would
not have been appointed as the CEO. He then
though that perhaps it was his race.
87. Much reliance was placed on Ms Sebatian's
evidence about her relationship with the applicant.
She was junior to him. She testified about her
relationship with the applicant. She could not
comment on the applicant's relationship with Mr
Shanmugham. The dynamics in these two
relationships were completely different. In the one
the applicant was the senior, in the other, he was
the junior and had to yield to authority. The
applicant's evidence was that he did not disrespect
351 Transcript, page 278, lines 9 - 11
his manager. His manager though felt he was
disrespected. After reflection, he thought that the
only reason could be his race. The applicant's
submissions are that the race allegation was an
afterthought, that the allegation is defamatory and
has no rational basis. Mr Shanmugham did not
testify that the applicant is a racist. During his
cross-examination, it was pointed out to him that he
might be mistaken in his perception. The applicant
also did not testify that. His version based on the
denial that he did not disrespect Mr
Shanmugham's authority. The accusation is that
the applicant " ... excluded, by-passed or sidelined
Mr Shanmugham as a person of colour". This is
specifically in reference to the allegations set out in
the second a/legation related to
insubordination/insolence/disrespect etc. As stated
above, the applicant gave no reasonable
explanation for his actions. If I understand his
argument, it is that Mr Shanmugam fabricated
the race issue to bolster the respondent's case.
He is a liar, it is submitted. Many of my findings
were based on inference and the impressions left
by the evidence presented. I already commented
above on questions posed during cross
examination, in which the applicant's case was
shown to be that, it is Mr Shanmugham who is
wrong and that he is not a reasonable manager.
This might mean many things. The applicant
clearly portrays Mr Shanmugham as the problem.
The fact is, the applicant's conduct impacted on Mr
Shanmugham and made him question his worth
and ability. Given my findings above about the
applicant's demonstrated attitude about
Page 126
transformation, inclusivity and diversity in the
workplace, coupled with the bare denial and the
fact that Mr Shanmugham's impressions are
his valid impressions, and it must be accepted
that his impression of the pattern of behaviour
was not a knee-jerk reaction or fabrication to
somehow "get" the applicant, I hold that the
respondent's version in this regard is accepted
as more probable.
88. I hold therefore that the commission of the
misconduct complained of was proven. Was
dismissal the appropriate sanction? I bear in mind
that the applicant has throughout the proceedings
portrayed himself as the only one who was correct.
He was given ample opportunity to reflect, yet
never conceded that somehow he might have been
wrong. According to him, his three managers have
their own views, particularly Mr Shanmugham, as
he stated during cross-examination. He thinks that
Mr Shanmugham, is/was not a reasonable
manager as was stated to him during his cross
examination. This was repeated in the closing
submissions. There is no reliable evidence that Mr
Shanmugam is not a good manager. As he
testified, he was appointed in the position because
his superiors were of the opinion that he was up to
the challenge. This was not challenged. He also
stated that it was a difficult decision, especially
considering the applicant's years of service." 352
(emphasis added)
352 Pleadings, pages 34 - 35; Arbitration Award paragraphs 86 - 88
Page 127
[229]The evidence of Shanmugam includes the following:
"When I sat back and thought about exactly what was
going on here, I was trying to search within myself, you
know, what kind, what could have been the possible
reasons, you know, for Andre not respecting me and
having disregard for my position as his superior. And I
thought about could it be because of my education, or, my
qualifications or my experience or my competence, you
know, but I went through each, you know, each of them, I
have got a University degree, Post Graduate I have got
two degrees, and I have got 21 years of experience in
financial services.
I have experience in all of those assets you know, under
my control, under my responsibility, private equity,
business equity, credit markets, infrastructure,
derivatives, hedge funds, you know, I have been in the
group for a long time and Nerson and Robert would not
have given me the job if they didn't think I have the
technical competence you know to manage these
businesses.
And, then I mean, the only other thing, you know, that I
could think of was, you know, perhaps it is race. I was
convinced that Andre does not respect me because he
doesn't think I am able to do it, he wasn't ready to bring
me into discussions or even, I wasn't expecting you know,
to be treated in this manner but I wasn't particularly
welcomed into his business. You know, I never interacted
with his teams, he took the teams away from me and I
must tell you that this is not the Sanlam that I know. I first
joined Sanlam in 1999.
And at the time I had an opportunity to present at the, what
do they call it, (words inaudible) chaired by the Chief
Page 128
Actuary, Chris Swanepoel and Chris Swanepoel, I was 26
years old at the time and Chris Swanepoel was such a
gentleman and he made me feel so welcomed that he
changed the language of that meeting to English and I
have only had good experiences in Sanlam given what
they stand for, in the last 14 years.
And this is the first incidence where I have ever
experienced anything like this. "353
Page 129
229.1 The applicant's evidence in cross-examination and in direct response to
Shanmugam's evidence as to his conclusion that "perhaps it is race"
includes the following:
"ADVOCATE NORTON: Now you have heard Mr.
Shanmugam testify first of all
that he experienced your
conduct towards him and we
have canvassed much of that
as being insulting in some
respects, as undermining him
in other respects, and that
when he tried to work out why
you would be undermining
him and by-passing him it
couldn't be because of his
qualifications or his
experience because he is
highly qualified and highly
experienced and because of
your propensity to go directly
to people like Robert Roux
and Neil van Rensburg who
were white men, he was left
353 Record Volume 6, page 168, line 7 to page 169 line 17
RHEEDER:
drawing the inference that
your behaviour towards him
was driven by racial
prejudice. Would you like to
comment on that?
It wasn't. I can't decide for
Mr. Shanmugam what his
inference or conclusions are.
It wasn't."354
Page 130
[230] Part of Sebastian's evidence was to the effect that in her assessment as an
employee in the Sanlam Properties team, she had a positive experience.
Sebastian's evidence included that "we are a unit. We have mutual respect
for each other's capabilities and what we bring to the team".355 This part of
Sebastian's evidence as it relates to allegation 3.1 and 3.2 has been dealt
with above. However, importantly and in relation to Shanmugam's evidence
and his experience with the applicant, Sebastian's evidence under cross
examination includes the following:
"ADVOCATE NORTON: Miss Sebastian, Mr.
354 Record Volume 6, page 384 lines 9 - 18
355 Record, Volume 6, page 400, lines 1 - 8
Shanmugam testified in this
hearing that over a long
period of eight to nine months
he experienced conduct by
Mr Rheeder towards him as
his superior as he regarded
as racially prejudiced. Now,
you have described that as a
new employee in Mr.
Rheeder's team, you had a
different experience and I
think you would accept,
because I think you already
have, the fact that you had
this experience with Mr.
Rheeder that his conduct
towards Mr. Shanmugam
wasn't racially prejudiced.
MS MANKA SEBASTIAN: Yes, I can't speak to that. I
can't."356
Page 131
[231] Sebastian's evidence includes that she could not speak to the evidence given
by Shanmugam357 and specifically his experience of the conduct of the
applicant and his assessment after reflection that "perhaps it is race".358
[232] The applicant's evidence - in - chief includes the following: he had good
working relationships with his previous line managers "who were persons of
colour' 359, he explained the reasons for "some misunderstandings etc that he
might have had"360 and given the "explanations that [he] had for some of the
allegations" he could not see that "it could have been a question about
race"361_
[233]The evidence that served before the commissioner includes the applicant's
behaviour and pattern of behaviour in bypassing Shanmugam. It includes the
evidence of Shanmugam as to how he experienced the applicant's conduct
in relation to him and the process by which he arrived at the conclusion as to
the "possible reasons" for the applicant disregarding him as his superior.
Having thought about it Shanmugam arrived at the conclusion "perhaps it is
race". On any reasonable assessment, Shanmugam's evidence is
considered and discloses careful self-reflection in relation to his professional
career with the first respondent.
356 Record, Volume 6, page 403, lines 2 - 8
357 Record Volume 6, page 403, lines 1 - 8
358 Record, Volume 6, page 168, line 7 to page169 line 17
359 Record Volume 6, page 318, lines 1 - 12
360 Record Volume 6, page 318, lines 1 -12
361 Record Volume 6, page 318, lines 1 -12
Page 132
[234]The evidence in relation to the applicant's behaviour towards Shanmugam,
bypassing, disregarding and disrespecting Shanmugam (allegation 2), has
been dealt with extensively above. The commissioner's determination as to
misconduct in relation to allegation 2 is firmly established in the evidence that
served before him. In relation to Shanmugam's conclusion that "perhaps it is
race", the applicant's evidence includes that he does not understand "why
that is such"362 . Further, in cross - examination and in direct response to
Shanmugam's evidence as to his conclusion that "perhaps it is race" and how
he arrived at that conclusion the applicant's evidence is "It wasn't. I can't
decide for Mr Shanmugam what his inference or conclusions are, it wasn't."363
[235] The commissioner's characterisation that the applicant's evidence on this
score was a "bare deniaf' is supported by the evidence that served before
him. Similarly, the commissioner's assessment that "Mr Shanmugham's
impressions are his valid impressions and it must be accepted that his
impression of the pattern of behaviour was not a knee-jerk reaction or a
fabrication to somehow "get" the applicanf'364 is supported by the evidence
that served before him.
[236] It is contended on behalf of the applicant in argument, inter alia, that the "third
respondent failed to attach appropriate weight to Sebastian's evidence
ostensibly because she was the applicant's junior and "had to yield to his
authority"". 365 It is further contended on behalf of the applicant in argument
that the "mischaracterisation of Sebatian's evidence as well as the dismissive
attitude towards the veracity of her evidence had a distorting effect on the
third respondent's assessment of her credibility and his ultimate findings". 366
[237] It cannot reasonably be contended that the detailed evidence as to the
applicant's conduct in relation to allegation 2 (the bypassing and disregard of
applicant's conduct in relation to allegation 2 (the bypassing and disregard of
Shanmugam), as dealt with extensively above, is displaced or undone by the
362 Record Volume 6, page 318, lines 1 - 12
363 Record Volume 6, page 384, lines 9 - 18
364 Arbitration Award, paragraph 87
365 Applicant's heads of argument, paragraph 52
366 Applicant's heads of argument, paragraph 53
Page 133
evidence of Sebastian as to her experience. On a reasonable assessment,
the weight of the evidence that served before the commissioner as to the
applicant's conduct towards Shanmugam and on eight occasions, is
compelling and is not displaced by the experience of Sebastian.
[238] The weight of the established facts in relation to allegation 2, allegation 3.1
and 3.2 as they relate to the applicant's 'transformation obligations',
Shanmugam's considered reflections which led him to his conclusion
("perhaps it is race") and the applicant's response to that evidence, "It
wasn't"367, form a proper basis the commissioner's determination that "the
respondent's version in this regard is accepted as more probable" and that
the misconduct was proven. Such a determination does not mean or imply
that the commissioner did not accept Sebastian's 'credibility' or that the
commissioner was dismissive in relation to the 'veracity' of Sebastian's
evidence. It simply and significantly means that Sebastian's evidence as to
her experience does not displace the compelling weight of the other evidence
that served before the commissioner.
[239] There is no proper basis for the contention advanced on behalf of the
applicant that the commissioner 'mischaracterised' Sebastian's evidence or
the contention as to a "dismissive attitude towards the veracity of her
evidence had a distorting effect on the third respondent's assessment of her
credibility and his ultimate findings. "368
[240]The commissioner's analysis does not disclose a "distorting effect" as
contended on behalf of the applicant in argument. Rather, on a reasonable
assessment, the commissioner's ultimate findings give effect to the
compelling weight of the evidence as to the applicant's conduct towards
Shanmugam (allegation 2) and Shanmugam's considered reflections as to
the reason for that conduct.
[241] It is contended on behalf of the applicant that the evidence of Sebastian "is
[241] It is contended on behalf of the applicant that the evidence of Sebastian "is
either completely ignored or dismissed". 369 This contention is not sustainable.
367 Record, Volume 6, page 384, lines 9 - 18
368 Applicant's heads of argument, page 53
369 Applicant's Heads of Argument, paragraph 35
Page 134
As demonstrated above, the commissioner engaged with the evidence of
Sebastian. The evidence of Sebastian was not exculpatory of the applicant.
[242] It is further contended that "the applicant had a good relationship with both
his previous managers who happened to be persons of colour''.37° Kodisang
was the applicant's immediate past manager.
[243] The evidence that served before the commissioner establishes that Kodisang
took disciplinary action against the applicant and issued him with a final
written warning. That written warning related to diversity and inclusion issues.
[244] The evidence that served before the commissioner includes an electronic
mail exchange between the applicant and Kodisang on 15 January 2018.371
On 15 January 2018 the applicant had sent an electronic mail to Roux,
copying Kodisang and Naidoo. The electronic mail relates, inter alia, to the
proposed establishment of "two new direct property funds namely a
Healthcare Property Fund and a Residential Property Fund".372 Kodisang
responded to the applicant's electronic mail on the same day, 15 January
2018. Kodisang's electronic mail records, inter alia, the following:
"Andre,
I think we have processes in the Alternatives business
that need to be followed before we seek Robert's
approval.
You can present your proposal at next Exco for
approval. Post approval Nersan and I will position with
Robert for his final approval.
Please present papers and agenda item to T erusha as
our company secretariat. "373
370 Applicant's Heads of Argument, paragraph 58.1
371 Record Volume 2, pages 24A and 248
372 Record Volume 2, page 24
373 Record Volume 2, page 24A
Page 135
[245] During the applicant's evidence it was put to him in cross-examination that
Kodisang took issue with him and that the applicant had to follow processes.
The applicant claimed to be unaware that Kodisang's electronic mail was in
effect a form of Kodisang "admonishing" him.374 On the evidence that served
before the commissioner, the applicant had sent an electronic mail directly to
Roux, copying Kodisang, in relation to significant business matters (the
establishment of two new direct property funds). Kodisang's electronic mail
in response draws the applicant's attention to "processes in the Alternatives
business that need to be followed before we seek Robert's approval" and
specifically records that after approval of the proposal at the level of the
Alternatives business, Naidoo and Kodisang "will position with Robert for his
final approval".
[246] On a plain reading Kodisang did indeed take issue with the applicant not
following processes in the Alternatives business and approaching Roux
directly with a significant business proposal. In point of fact, Kodisang records
that he and Naidoo (not the applicant) would 'position' the proposal with Roux
after approval at the level of the Alternatives business. On the evidence
before the commissioner, the applicant had disregarded "processes" and
bypassed Kodisang.
[247] It is contended on behalf of the applicant that "Any reliance placed on the
singular incident with his previous manager, Ben Kodisang, is misplaced and
unreasonable. "375 There is no factual or other basis for the contention that the
commissioner relied on the "singular" incident. As noted above, the
commissioner made no finding or determination that the applicant should
have known to copy his manager into every email. The 15 January 2018
incident demonstrates that in relation to a significant business matter (the
proposed establishment of two new funds) the applicant had gone directly to
Roux, bypassing Kodisang. The arbitration award does not, on a reasonable
Roux, bypassing Kodisang. The arbitration award does not, on a reasonable
assessment, reflect any reliance on a "singular incident" (January 2018) in
relation to a determination that the applicant had bypassed Shanmugam.
374 Record Volume 6, page 343, lines 12 - 18
375 Applicant's Heads of Argument, paragraph 68
Page 136
Further, and in relation to allegation 3.3 the arbitration award does not reflect
any reliance on a "singular incident" or "discord between the applicant and
Kodisang".
[248]The applicant's assessment that he had a good working relationship with his
previous managers who were "persons of colour', does not displace the
compelling weight of the applicant's conduct in bypassing and disregarding
Shanmugam "as a person of colour' or the weight of the evidence on which
the commissioner based his determination that the applicant's "behaviour did
not demonstrate a commitment to transformation and diversity that his
employer was asking from him"376 and that the applicant "did not display an
attitude that he was serious about transformation and diversity issues within
Sanlam".377
[249] It is further contended on behalf of the applicant that:
"It had to concede that in the year since the applicant's
dismissal:
59. 1. There was very little change in diversity in
relation to Propco;
59. 2. Shanmugam was still an attendee of Propco and
not a member; and 59.3. Thando Seshuba, a
Black African male who was appointed to the
applicant's position was not a member of
Propco.
60. The only plausible inference is that the applicant
was not the hurdle to transformation. The first
respondent's efforts to drive transformation were
largely unsuccessful despite the applicant's
absence from the workplace. "378
376 Arbitration Award, paragraph 84
377 Arbitration Award, paragraph 85
378 Applicant's Heads of Argument, paragraphs 59 and 60
Page 137
[250] These contentions on behalf of the applicant do not displace the evidence
that served before the commissioner. The issue is not whether the applicant
was a hurdle to the first respondent's transformation efforts. Rather, one of
the first respondent's principal concerns was whether the applicant had
complied with the transformation obligations as a senior manager. In the
commissioner's determination the applicant did not. It might well be the case
that the first respondent has ongoing concerns or issues that need to be
addressed. That would hardly be unusual. However, that does not displace
the commissioner's findings that the allegations of misconduct against the
applicant have been proven.
[251]The commissioner did not simply disregard the applicant's version. The
commissioner found, in his own words, "/ hold that the respondent's version
in this regard is accepted as the more. probab/e".379 It is indeed the
commissioner's duty to consider the evidence before him and, where
necessary, to decide which version is more probable. The commissioner did
precisely that.
[252] The commissioner, as is recorded by him, drew inferences from the evidence
before him. As demonstrated above, those inferences are properly supported
by the evidence that served before the arbitration proceedings. It cannot
reasonably be contended that the commissioner's inferences and his findings
are untethered from the evidence that served before the arbitration
proceedings.
[253] Further, it cannot reasonably be contended that the weight of the evidence
and the established facts relation to allegation 3, as dealt with extensively
and analysed above, can be undone or disturbed by observations as to
candour or demeanour of the witnesses who gave that evidence as captured
in the transcript that served before the commissioner. An observation, for
example, as to the applicant's candour or demeanour would not undo the
established facts that arise from his own evidence. This applies with equal
established facts that arise from his own evidence. This applies with equal
force to the evidence Sebastian. In addition, the weight of the established
379 Arbitration Award, paragraph 87
Page 138
facts is not diminished by an absence of the commissioner observing the
witnesses personally and taking a view as to their candour and demeanour.
[254] In relation to allegation 3 there can be no serious or sustainable contention
that the commissioner's reasoning and findings are "entirely disconnected
with the evidence, unsupported by any evidence and involves speculation"
as contemplated in Securitas. 380
[255] Further, as alluded to above, the broader context was the applicant's
'transformation obligations'.361 The commissioner's findings must be
assessed in context, "on the totality of the evidence not on a fragmented
piece meal analysis." 382 On a proper assessment, the commissioner's
reasoning and determination in relation to allegation 3 are grounded in and
supported by the evidence that served before him. The commissioner's
reasoning and findings do not disclose misconduct in relation to his duties as
a commissioner, gross irregularity in the conduct of the proceedings or that
the commissioner exceeded his powers
Dismissal as appropriate sanction
[256] In relation to the Wood transaction it is contended, inter a/ia, on behalf of the
applicant that "The investigators found the applicant to be honest in his
dealings and recommended that he be given a final written warning and that
the first respondent consider amending its policies to include a rule covering
this scenario."sa3
[257] The forensic report itself concludes that it does not agree with the applicant's
contention that "declaring his interest and actions should have been
sufficient. We are of the opinion that he should have asked his manager, Mr.
Shanmugam, permission before proceeding with the salvaging of the
380 Securitas Specialised Services (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration
& Others (2021) 42 ILJ 1071 (LAC)
381 Record Volume 2, page 3
382 Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mining) v CCMA and Others [2014] 1 BLLR 20
(LAC) and at paragraph 21
(LAC) and at paragraph 21
383 Applicant's Heads of Argument, paragraph 74
Page 139
wood. "384 The first respondent decided to take disciplinary against the
applicant in relation to the Wood transaction. It cannot seriously be contended
that the first respondent as employer was bound by "recommendations" of
the forensic investigation. As is dealt with extensively above, on the evidence
that served before the commissioner, the applicant's serious misconduct in
relation to the Wood transaction is firmly established.
[258] It is further contended on behalf of the applicant that "an important
consideration was that the applicant had not previously committed a similar
transgression and that he was transparent in his conduct. There was no
evidence of personal gain at the expense of the first respondent or prejudice
to the first respondent" and "there is no further evidence introduced in the
amplified charge sheet that would warrant a dismissal on this charge or which
suggests that the employment relationship had broken down as a result".385
These contentions are not sustainable.
[259] The evidence that served before the commissioner included that of Roux: the
value of the wood is not the principal concern, the first respondent deals with
"client's money and therefore utmost care in the way that you do it and the
way you handle conflict. 386 The applicant under cross-examination accepted
that:
259.1 he knew that in his position, managing property, conflicts of interest would
arise 387 •
'
259.2 the first respondent needed to trust him to make the right judgment calls
when conflicts of interest arose 388;
384 Record, Volume2, page 89, paragraph 5.2
385 Applicant's Heads of Argument, paragraphs 75 and 76
386 Record Volume 6, page 29, lines 1 - 7 and lines 27 - 29
387 Record Volume 6, page 324, lines 10 - 11
388 Record Volume 6, page 325, lines 1 - 10
Page 140
259.3 whenever he is attending to the first respondent's business and an
opportunity arises to obtain a personal benefit that is a potential conflict of
interest 389;
259.4 the first respondent has an interest in not having its employees acquiring
benefits from situations in which they are acting on behalf of the first
respondent 390;
259.5 when in doubt an employee has to disclose a circumstance involving a
potential conflict of interest to the first respondent 391 .
[260] As noted above, the evidence that served before the commissioner
establishes that the applicant is a senior managerial employee of the first
respondent. In the ordinary course of his duties the applicant is required to
avoid a conflict of interest. When a potential conflict of interest does arise the
applicant is required to put the interests of the employer first. The applicant
knew of a conflict of interest in relation to the Wood transaction. The applicant
was required to inform Shanmugam, his direct superior, of the proposed
transaction and to seek his prior permission. The applicant did not do so and
only informed Shanmugam after the Wood transaction and some three
months later. The breach of the applicant's obligations to the first respondent
as his employer in relation to the Wood transaction is firmly established in the
evidence.
[261] On the evidence that served before the commissioner, the applicant's
established misconduct in relation to the Wood transaction is serious
misconduct. The applicant as a senior managerial employee in the financial
services industry was obliged to avoid conflicts of interest and the first
respondent as his employer needs to trust that the applicant would make the
right judgment calls when conflicts of interest arise. The applicant as a senior
managerial employee did not put the interests of the employer first.
389 Record Volume 6, page 325, lines 11 -12
390 Record Volume 6, page 325, lines 19 - 21
391 Record Volume 6, page 326, lines 14 - 22
Page 141
[262] During the course of the arbitration proceedings the applicant had an
opportunity to reflect on his conduct and to consider his position in relation to
the Wood transaction. Notwithstanding being given such an opportunity, the
applicant was steadfast in his stance that he did not do anything wrong. The
fact of applicant's serious misconduct is compounded by his steadfast refusal
to acknowledge any wrongdoing. This, properly put, must impact the
employment relationship between the applicant and the first respondent.
[263] In the arbitration award the commissioner also records the following
[90] Given the pattern of behavior that points to
undermining Mr Shanmugham's authority, that
could ultimately impact on the operations and
which gave the impression of incompatibility,
though this is not a reason for dismissal, and also
given the fact that the applicant steadfastly
refused to concede to even the smallest act of
wrongdoing, I hold that the decision to dismiss
was a fair decision. The applicant was then and at
the time of submitting the closing submissions, not
willing to concede any wrongdoing or tender any
apology. It cannot be that these four senior
employees would testify for the respondent were
all wrong and that only the applicant was right.
The applicant's conduct caused a breakdown in
the employment relationship, to the extent that it
could not reasonably be expected of the
respondent to have continued with the
employment relationship. "392
[264] It is contended on behalf of the applicant that: ''The third respondent's finding
that the employment relationship had broken down was largely based on the
applicant's alleged lack of remorse. This finding is not consistent with the
applicant's evidence that he would have amended his conduct if Shanmugam
392 Arbitration Award, paragraph 90
Page 142
had expressed his concerns. There was simply no way that the applicant
could have known of Shanmugam's subjective opinions and inferences."393
These contentions are unsustainable.
[265] The contention as to "the applicant's evidence that-he would have amended
his conduct if Shanmugam had expressed his concerns" has been dealt with
extensively above. The applicant's evidence that served before the
commissioner does not include any factual matter which indicates that he
would have conducted himself differently. The issue of proper reflection
when dealing with the detail of his conduct formed no part of the applicant's
evidence. A contention in argument "that he would have amended his
conduct" is no substitute for genuine reflection.
[266] Importantly, on the evidence that served before the commissioner the
applicant was afforded an opportunity to reflect on his conduct. This
opportunity was offered to him also in relation to allegation 2. In this regard
the applicant's evidence under cross-examination includes the following:
"ADVOCATE NORTON: Mr Rheeder, would it be fair to
say that in all of these issues
after a long time, a Jong
opportunity to reflect on all of
these aspects of your
conduct over the six-to-eight
month period, you simply
don't see anything wrong with
anything that you did?
MRRHEEDER:
393 Applicant's Heads of Argument, paragraph 78
My interactions with Mervyn
on an eight-month period was
probably 1000 interactions.
There was a lot of what has
happened here, what is going
to happen here, much more
ADVOCATE NORTON:
MRRHEEDER:
mails than you see here.
Here is an abstract of a
couple of mails that I think
have given you sufficient
information to realise that this
is normal, this is, there is
nothing wrong with this and to
choose three or four of them
and say that they are
disobedient, insolent, I think
what about the other 1000
that was there. Why wasn't
that put on the table.
But Mr Rheeder I don't think
you are answering my
question. It is, is it fair to say
that after reflecting on all of
these issues, you still think
that nothing was wrong in any
of your conduct during this
period?
Exactly." 394
Page 143
[267] The applicant had an opportunity to reflect on his conduct and persisted that
he did nothing wrong. The passage of evidence referred to above is in the
applicant's cross-examination. By that stage in the arbitration proceedings
the applicant had a full appreciation of the first respondent's serious concerns
with his conduct. He had heard the evidence of Roux, Naidoo and
Shanmugam in relation to allegation 2. Even then, on the record that served
before the commissioner, the applicant had no pause for thought and
persisted with his view that he did nothing wrong and did so in what appears
to be rather emphatic terms, "Exactly". The record that served before the
394 Record Volume 6, page 375, lines 10 - 22
Page 144
commissioner reveals no reflection on the part of the applicant and no hint
that with the benefit of hindsight, he might have done things differently or
approached matters differently.
[268] It is contended on behalf of the applicant that in disciplinary proceedings "an
employee's insistence on their innocence or their right to defend themselves
does not constitute insubordination or justify dismissal"395 . It is trite that in
disciplinary and arbitration proceedings the rights of employees include
stating a case in their defence, maintaining their innocence and challenging
the allegations against them. It is the facts that served before the
commissioner which ultimately led him to conclude that the misconduct in
relation to the Wood transactioo, allegation 2 and allegation 3, was proven.
The contention that there was an "absence of credible evidence from the first
respondent''396 is simply not sustainable. The weight of the established facts
does indeed constitute a proper basis for the commissioner to conclude that
the allegations of misconduct, including insubordination, were proven. It is
the weight of the evidence and not the applicant's "insistence on their
innocence or their right to defend themselves" which establishes the
applicant's serious misconduct as contemplated in the notice dated 16 April
2019.
[269] The effect of applicant's persistent failure to acknowledge wrongdoing is a
discrete inquiry which in appropriate circumstances would impact the
employment relationship. The contention in argument advanced on behalf of
the applicant that the commissioner misdirected himself "on the facts and the
law in relation to alleged lack of remorse which in tum, led to an unreasonable
finding that the applicant caused the breakdown in the employment
relationship"397 is unsustainable
[270] On the record that served before the commissioner, at no material or relevant
time does the applicant acknowledge any wrongdoing on his part. That lack
time does the applicant acknowledge any wrongdoing on his part. That lack
of reflection and remorse persisted in by the applicant does necessarily
395 Applicant's Heads of Argument, paragraph 79
396 Applicant's Heads of Argument, paragraph 80
397 Applicant's Heads of Argument, paragraph 81
Page 145
impact the employment relationship adversely and in the context of his
established serious misconduct, does constitute an insurmountable hurdle to
his continued employment by the first respondent.
[271] In the matter of De Beers Consolidated Mines Ltd v CCMA & Others [2000]
9 BLLR 995 (LAC) the Court at paragraph 22 held that:
" .. . Long service does not lessen the gravity of the
misconduct or serve to avoid the appropriate sanction for it.
Long service is not mitigatory as such. Mitigation as that term
is understood in the criminal law, has no place in employment
law. Dismissal is not an expression of moral outrage: much
less is it an act of vengeance. It is, or should be, a sensible
operational response to risk management in the particular
enterprise. "398
[272] Further, in De Beers it was held that:
"It would in my view be difficult for an employer to re-employ
an employee who had shown no remorse. Acknowledgement
of wrong-doing is the first step to rehabilitation. In the
absence of a recommitment to the employer's workplace
values, an employee cannot hope to re-establish the trust
which he himself has broken. "399
[273] In Theewaterskloof Municipality v SALGBC (Western Cape Division) &
Others [201 0] 11 BLLR 1216 (LC), the Court noted that whilst item 3 (2) of
the Code of Good Practice: Dismissal, contained at Schedule 8 of the LRA
endorsed the concept of corrective discipline:
" .. . progressive discipline is premised on a corrective purpose
and outcome. If no correction is likely to be obtained or if the
employment relationship is in any event irretrievably broken
down, the scope of graduated discipline will likewise fall
away. "4oo
[274]The Court in Theewaterskloof found in this instance that because the
employee had:
398 [2000] 9 BLLR 995 (LAC) at [22].
399 [2000] 9 BLLR 995 (LAC) at [25].
400 [2010] 11 BLLR 1216 (LC) at [17]-[19]
"elected to hold himself on a confrontational course [t] here
can be very little room for the notion of corrective discipline
in this situation. Where an employee refuses to demonstrate
any acceptance of wrongdoing, indicates no degree
whatsoever of remorse, makes no move to correct what he
has done, stands firm with an attitude of opposition towards
his employer, then such employee through his own conduct
undercuts the applicability of corrective or progressive
discipline. "401
Page 146
[275]The commissioner's determination that the first respondent could not
reasonably be required to continue with the employment relationship and that
the dismissal was fair is consistent with the principles of our law
[276]Arbitration awards are final and binding and not subject to appeal.402
[277]The commissioner did not misconceive the nature of the enquiry, nor did he
arrive at an unreasonable result.403 The commissioner had regard to the
material facts before him.404 The review test is not whether on analysis
another perspective is plausible and reasonable, rather the review test as
restated in Makuleni is that the award "has to be so egregious" that no
reasonable person could have reached the result.405
[278] On a 'fair reading' of the award, the commissioner's conclusions are
supported by the body of evidence that served before the arbitration
proceedings.406 An assessment or 'fair reading' of the commissioner's award
against the backdrop of the evidence that served before him, as
contemplated in Makuleni, does not yield the result that the commissioner's
conclusions are 'untenable'.
401 [201 0] 11 BLLR 1216 (LC) at [20]
402 Section 143( 1) of the LRA
403 Herholdt v Nedbank Ltd (Congress of South African Trade Unions as amicus curiae) [2013] 11
BLLR 1074 (SCA)
404 Nyathikazi v Public Health & Social Development Sectoral Bargaining Council & others (2021)
42 ILJ 1686 (LAC)
405 Makuleni v Standard Bank of SA (Pty) Ltd & others (2023) 44 ILJ 1005 (LAC)
406 Ibid, 405
Page 147
The Order
1. The application is dismissed.
2. There is no order as to costs.
Appearances:
For the Applicant:
Instructed by:
For the Respondent:
Instructed by:
VANVOOREAJ
ACTING JUDGE ·1 THE LABOUR COURT
Adv LR Naidoo SC
Macgregor Erasmus Attorneys
Adv C Kahanowitz
Bradley Conradie Halton Cheadle Attorneys