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[2018] ZACC 29
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Duncanmec (Pty) Limited v Gaylard NO and Others (CCT284/17) [2018] ZACC 29; 2018 (11) BCLR 1335 (CC); [2018] 12 BLLR 1137 (CC); 2018 (6) SA 335 (CC); (2018) 39 ILJ 2633 (CC) (13 September 2018)
Links to summary
Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
CCT
284/17
In the matter
between:
DUNCANMEC (PTY)
LIMITED
Applicant
and
JEANNE GAYLARD
N.O.
First
Respondent
METAL AND
ENGINEERING INDUSTRIES
BARGAINING
COUNCIL
Second
Respondent
NATIONAL UNION OF
METAL WORKERS OF SOUTH
AFRICA obo
DESMOND MPAHLENI & 7
OTHERS
Third
Respondent
Neutral citation:
Duncanmec (Pty) Limited v Gaylard N.O. and Others
[2018] ZACC
29
Coram:
Zondo
DCJ, Cachalia AJ, Dlodlo AJ, Froneman J, Goliath AJ, Jafta J,
Khampepe J, Madlanga J, Petse AJ and Theron J
Judgments:
Jafta J (unanimous)
Heard on:
31
May 2018
Decided on:
13 September 2018
Summary:
[struggle songs] — [racism in the workplace] —
[racially offensive conduct]
[misconduct] —
[unprotected strike] — [unfair dismissal] — [
Sidumo
test]
JUDGMENT
JAFTA J (Zondo DCJ,
Cachalia AJ, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Madlanga
J, Petse AJ and Theron J concurring):
Introduction
[1] This matter
concerns the reasonableness of an award issued by an arbitrator
appointed by the Metal and Engineering Industries
Bargaining Council
(Bargaining Council). The arbitration related to a dismissal of
nine employees of Duncanmec (Pty) Limited
(Duncanmec) who were found
guilty of misconduct. These employees were members of the
National Union of Metal Workers of South
Africa (NUMSA).
[2] The dismissed
employees were charged and found guilty of racially offensive
conduct. Racism and racially offensive behaviour
are
antithetical to our constitutional order. At the heart of this
order lies the concept of equality, which is not only
entrenched as a
right, but also as a value that constitutes the bedrock of the
democratic order.
[3] Racism and
discrimination were the hallmarks of the policy of apartheid that was
implemented in the previous order. That
policy rested on the
false notion and belief that the white race was superior and that the
other races were inferior. Consequently,
black people were
denied their dignity and other fundamental rights. The
institutionalisation of racism brought intolerable
suffering, hurt
and humiliation to them. As observed by this Court in
Brink
:
“Our history is of particular relevance to the concept of
equality. The policy of apartheid, in law and in fact,
systematically
discriminated against black people in all aspects of
social life. Black people were prevented from becoming owners
of property
or even residing in areas classified as ‘white’,
which constituted nearly 90% of the landmass of South Africa; senior
jobs and access to established schools and universities were denied
to them; civic amenities, including transport systems, public
parks,
libraries and many shops were also closed to black people. Instead,
separate and inferior facilities were provided.
The deep scars
of this appalling programme are still visible in our society.”
[1]
[4] In its equality
jurisprudence, this Court has interpreted the equality clause in the
Constitution in a manner that rejected
racism and embraced equality
as a cornerstone of our democratic order. In
Hugo
it
said:
“At the heart of the prohibition of unfair discrimination lies
a recognition that the purpose of our new constitutional and
democratic order is the establishment of a society in which all human
beings will be accorded equal dignity and respect regardless
of their
membership of particular groups. The achievements of such a
society in the context of our deeply in-egalitarian
past will not be
easy, but that that is the goal of the Constitution should not be
forgotten or overlooked.”
[2]
[5] While the
adoption of the Constitution had the legal consequences of
dismantling the institutionalised inequality that was characterised
by racism and other forms of discrimination, this Court was alive to
the long road and difficulties that South Africa, as a nation,
would
have to face on the way to establishing the equal society envisaged
in the Constitution. The guarantee of equal rights
and dignity
may not prevent racist or racially offensive conduct on the part of
those who do not uphold the Constitution.
As was stated in
Fourie
:
“Equality means equal concern and respect across difference.
It does not presuppose the elimination or suppression
of difference.
Respect for human dignity requires the affirmation of self, not the
denial of self. Equality therefore
does not imply a levelling
or homogenisation of behaviour or extolling one form as supreme, and
another as inferior, but an acknowledgment
and acceptance of
difference. At the very least, it affirms that difference
should not be the basis for exclusion, marginalisation
and
stigma.”
[3]
[6] Regrettably, so
far the Constitution has had a limited impact in eliminating racism
in our country. Its shortcomings flow
from the fact that it
does not have the capacity to change human behaviour. There are
people who would persist in their racist
behaviour regardless of what
the Constitution says. It is therefore the duty of the courts
to uphold and enforce the Constitution
whenever its violation is
established.
[7] The increasing
number of complaints of racism at the workplace which come before our
courts is a matter of concern.
[4]
The approach adopted by the Labour Appeal Court in
Crown
Chickens
must be followed if we hope to succeed in stemming the
tide against racism in the workplace. In that case Zondo JP
declared:
“[T]he courts are enjoined to play a particularly critical role
in, among others, the fight against racism, racial discrimination
and
the racial abuse of one race by another. They must play that
role fairly but firmly so as to ensure the elimination of
racism in
our country and the promotion of human rights. This court is
alive to this role and will seek to play it fully,
fairly but
firmly.”
[5]
[8] Notwithstanding
this caution, which was sounded more than 10 years ago, the presence
of racism at the workplace continues unabated.
This much is
apparent from the cases collected by the Chief Justice in
South
African Revenue Service.
[6]
In that matter the Chief Justice stated:
“My observation is that very serious racial incidents hardly
ever trigger a fittingly firm and sustained disapproving response.
Even in those rare instances where some revulsion is expressed in the
public domain, it is but momentary and soon fizzles out.
Sadly,
this softness characterises the approach adopted by even some of
those who occupy positions that come with the constitutional
responsibility or legitimate public expectation to decisively help
cure our nation of this malady and its historical allies.”
[7]
[9] The firmness
demanded in dealing with the scourge of racism in the workplace
suggested in
Crown Chickens
was reaffirmed by Mogoeng CJ in
South African Revenue Service
. This is the backdrop
against which complaints about racism in the workplace must be
assessed and determined.
Background
[10] On 30 April
2013 NUMSA’s members who were also Duncanmec’s employees
participated in an unprotected strike at the
employer’s
premises. During that strike the workers danced and sang
struggle songs. They refused to listen to
managers who
attempted to address them. The lyrics they sang in isiZulu were
translated into the following words: “Climb
on top of the roof
and tell them that my mother is rejoicing when we hit the boer”.
[11] The employees
rejected the employer’s ultimatum that they end the strike and
resume work. The employees’
conduct gave rise to charges
of misconduct. In count one they were charged with
participation in an unprotected strike.
The second charge was
formulated in these terms:
“Gross misconduct being inappropriate behaviour in that on the
20
th
April 2013, while participating in an unprotected
strike action, you behaved inappropriately by dancing and singing
racial songs
in an offensive manner while you were on duty and
continued to do so while defying management’s lawful ultimatum
to return
to work.”
[12] A disciplinary
hearing chaired by Mr Raymond Joubert was held within the period of
14-28 May 2013. Mr Joubert is not
an employee of Duncanmec.
At the hearing the employees were represented by Mr Simphiwe Sithole
who was NUMSA’s shop
steward. Nine employees were charged
with misconduct.
[13] At the
conclusion of the hearing, the chairperson rendered a comprehensive
ruling in which he found all employees guilty in
respect of both
charges. Regarding the penalty, he considered that other
workers were not dismissed for their participation
in the strike and
that they were issued with final written warnings. He concluded
that the same sanction should be imposed
on the employees who
appeared before him.
[14] In relation to
the second charge, the chairperson held that the singing of the song
and the dancing amounted to racism.
He rejected NUMSA’s
averment that the video material shown at the hearing revealed that
not all employees participated in
the singing. The chairperson
ruled that those who were captured in the video not singing were
equally guilty because they
were dancing to the singing of the
offensive song. It is not clear from the record who of the
employees fell into this category.
[15] The chairperson
concluded that the charge relating to racism was so serious as to
warrant dismissal, regardless of the fact
that Duncanmec’s
disciplinary code did not make it a dismissible misconduct. He
reasoned thus:
“It is common cause that [in] ensuring efficiency, success and
excellent working conditions and relationships within the
workplace,
there must not be any racism between various races. To thus
sing out loud that the ‘blacks’ would
be happy when
‘beating’ the whites/boere, amounts to hatred speech
towards the ‘white’ race and this would
undoubtedly
affect relationships between ‘blacks’ and ‘whites’.
The Chairperson does not see any reason why such conduct must be
overlooked and not regarded as a dismissible offence. It
is
therefore that the Chairperson recommends that the accused be
summarily dismissed based on charge two (2) and the accused be
given
a final written warning for charge one (1).”
[16] The ruling
concluded by advising the employees to refer the matter to the
Commission for Conciliation, Mediation and Arbitration
(CCMA) or a
relevant bargaining council, if they were unhappy with the outcome.
NUMSA and its members were aggrieved by the
ruling and challenged the
dismissal in the Bargaining Council which appointed an arbitrator to
decide the dispute. Ms Jeanne
Gaylard was the one appointed to
arbitrate the dispute. The arbitration hearing was held on 16
May 2014 and on 19 May 2014
she submitted her ruling.
[17] Although the
arbitrator held that the singing of the song was inappropriate, she
did not conclude that it constituted racism.
She reasoned:
“While I regard the singing of the song translated to ‘stand
on top of the rooftop and shout that my mother is rejoicing
if we hit
the boers’ as inappropriate, particularly within the context of
a workplace, I am of the view that a differentiation
between singing
this song and referring to someone with a racist term needs to be
drawn. This is since this song is a struggle
song and there is
a history to it. While this is the case the song can be
offensive and cause hurt to those who hear it.”
[18] Having viewed a
DVD recording of the singing, the arbitrator held that the employees’
conduct was not violent and that
the strike was “peaceful and
short-lived”. She disagreed with the employer’s
view to the effect that the
relationship between Duncanmec and the
employees had been “tarnished irrevocably”. She
concluded:
“Thus when the evidence is considered holistically, I am of the
view that the company did not discharge the onus and prove
that the
sanction of dismissal was appropriate in the circumstances. I
accordingly find the Applicants’ dismissal substantively
unfair.”
[19] With regard to
remedy the arbitrator stated:
“There has been no reason placed before me as to why the
Applicants should not be reinstated. As discussed above, the
evidence before me does not demonstrate that the trust relationship
has broken down. Thus the Applicants must be reinstated
into
the same positions that they occupied prior to the dismissal, on the
same terms and conditions that existed prior to the dismissal.”
[20] The arbitrator
ordered the employees’ reinstatement but to show her
disapproval of the singing, limited their compensation
to a salary of
three months in respect of each employee. The amount to which
each employee was entitled was calculated in
the award and Duncanmec
was ordered to pay on or before 15 June 2014.
Award review
[21] Duncanmec was
dissatisfied with the award and launched an application to have it
reviewed and set aside by the Labour Court.
NUMSA and the
affected employees opposed the application. Although the
arbitrator was cited as the first respondent, it does
not appear from
the record that she participated in the review proceedings in the
Labour Court.
[22] In impugning
the award, Duncanmec relied on its administrative justice right to a
lawful and reasonable decision, as well as
some of the grounds listed
in section 145 of the Labour Relations Act
[8]
(LRA). Section 145 of the LRA authorises the review of
arbitration awards if–
(a) the arbitrator has committed misconduct in relation to the duties
of the commissioner as an arbitrator;
(b) the arbitrator has committed a gross irregularity in the conduct
of the arbitration proceedings;
(c) the arbitrator has exceeded the arbitrator’s powers; or
(d) the award has been improperly obtained.
[23] The grounds of
review advanced by Duncanmec were formulated in these terms:
“[T]he first Respondent, both on the facts and the law, simply
failed to rationally and reasonably determine this matter
as a
reasonable decision maker could have done.”
To this Duncanmec added the following:
(a)
The arbitrator failed to comply with the provisions of the LRA,
pertaining to conducting of fair and proper proceedings in terms
of
the LRA.
(b)
The arbitrator did not properly, reasonably and lawfully determine
the factual issues and evidence properly before her.
(c)
The arbitrator did not properly, rationally and justifiably apply her
mind to the facts or the law in this instance.
(d)
The arbitrator exceeded her powers in terms of the LRA.
(e)
The arbitrator failed to properly apply the provisions of the
Constitution of the Republic of South Africa in this instance.
(f)
The arbitrator failed to afford the Applicant a fair and proper
hearing in the circumstances and failed to properly conduct
the
arbitration proceedings in the circumstances.
(g)
The award made by the arbitrator is not justifiable in relation to
the reasons given for such award, and such award is not rational
or
justifiable in its merits or outcome, and is not an award a
reasonable decision maker could have come to, in respect of the
determination of the relief afforded to the individual employees in
this instance.
(h)
The arbitrator in fact contradicted herself in her own award.
[24] In opposing the
relief sought by Duncanmec, NUMSA disputed that the singing of the
relevant lyrics constituted hate speech
or incitement to commit
violence on white people. NUMSA explained that the song was an
old struggle song which was sung by
workers from the time of the
apartheid order. This singing was done to show defiance of
authority of employers in the context
of a strike. While
accepting that the practice of singing such songs was more suited to
the time of apartheid and that the
constitutional dispensation
affords workers’ rights they were denied under the old order,
NUMSA contended that the effects
of apartheid continue to afflict the
workplace in this country. The economic structure has not
changed. In many companies,
management still consists of whites
and the general labour force comprises blacks.
[25] NUMSA argued
that the singing of struggle songs during a strike serves the purpose
of marshalling the workers to stand together
in “solidarity and
defiance of the authority of the employer whose rules and authority
they were defying by holding an unprotected
strike”. It
disputed that the singing was done as a result of racial hatred.
NUMSA pointed to the non-violent
manner in which the singing and
dancing were carried out to make the point that the song was a
rallying call for workers to unite.
[26] The Labour
Court held that in the context of a strike which ordinarily involves
the singing of struggle songs in support of
the demand for workers’
rights, it cannot be said that the arbitrator’s award was so
unreasonable that no arbitrator
could have made it. That Court
also rejected the contention that the award was vitiated by gross
irregularity.
[27] On the
contrary, the Labour Court endorsed the arbitrator’s approach
to the matter, especially to paying appropriate
attention to the
relevant context and the peaceful nature of the strike. In this
regard the Labour Court said:
“This Court further agrees with the distinction that the
Commissioner drew between other racist cases and the current scenario
in this case. It is this Court’s view that the Equality
Court in which the then ANC Youth League Leader, Julius Malema,
now
the EFF President, was found to have sung a song like this and the
same needed to be balanced with the dignity of those who
feel
targeted by radical and militant songs is unconvincing.
An argument that singing the song at the workplace had compromised
the continued trust relationship between the employer and the
striking employees is unsustainable. An alleged lack of remorse
is in itself far-fetched in this Court’s view.
The
employees conceded they sang the song, however they deny that it is
wrong to sing it in a work environment and had the potential
to cause
hurt to other employees particularly white employees, however these
employees’ denial is understandable considering
the history of
the song. This denial should not be construed as a sign that
the employees were not remorseful of their participation
in an
unprotected strike.
It was not unreasonable, in this Court’s considered view, of
the Commissioner to have found that there was no threat to management
and that the strike or protest was relatively peaceful. It is
recorded that the strike was a few hours after lunch and the
employees returned to work on the next working day. The Court
notices that when the employees stopped work on 30 April 2013,
the
next day was supposed to be Workers Day.”
[9]
[28] Consequently,
the Labour Court dismissed the application and made the award an
order of court. Later, that Court dismissed
an application for
leave to appeal. Similarly, the Labour Appeal Court rejected
the request for leave by Duncanmec, hence
the present application.
Leave to appeal
[29] For Duncanmec
to obtain leave, it must show that the matter falls within the
jurisdiction of this Court and that it is in the
interests of justice
to grant leave. With regard to jurisdiction, it cannot be
gainsaid that the matter raises constitutional
issues. This is
manifest from the grounds of review advanced in the Labour Court.
The majority of them relate to the
exercise of public power by the
arbitrator. For example, Duncanmec complained that the
arbitrator had exceeded her powers
under the LRA and that she had
failed to properly apply the provisions of the Constitution in this
instance.
[30] Moreover, with
reference to the decision of this Court in
Sidumo
,
[10]
Duncanmec asserted that in the process of arbitrating the dispute the
arbitrator breached its administrative justice right to a
lawful and
reasonable decision. In
South Africa Revenue
Service
, the challenge of an award based on unreasonableness was
regarded as raising a constitutional issue. This Court said:
“[T]he requirement that an administrative action be reasonable
is a constitutional requirement. In challenging the
reasonableness of the reinstatement, SARS is in effect questioning
whether the award meets the constitutional requirements that
an
administrative action must be reasonable. And that is a
constitutional issue.”
[11]
[31] What remains
for consideration under the rubric of leave is whether it is in the
interests of justice to permit Duncanmec to
appeal. This is an
inquiry that requires consideration and the weighing up of various
factors, including prospects of success.
Although not
determinative of the enquiry, the prospects of success are a weighty
factor. This is so because the granting
of leave where there
are no reasonable prospects may serve no purpose.
[32] In determining
whether it would be in the interests of justice to grant leave here,
we must evaluate, albeit briefly, the submissions
advanced by
Duncanmec. It put forward two main contentions. First,
Duncanmec argued that the singing of the relevant
song constituted
hate speech and racism. Therefore, the sanction of dismissal
was justified. Second, it contended that
the arbitrator applied
her own sense of fairness in determining whether the dismissal was
substantively unfair. Duncanmec
argued that this approach was
at variance with the test laid down by this Court in
Sidumo
.
[12]
[33] Heavy reliance
was placed on the following statement:
“In terms of the LRA, a commissioner has to determine whether a
dismissal is fair or not. A commissioner is not given
the power
to consider afresh what he or she would do, but simply to decide
whether what the employer did was fair.”
[13]
[34] With reference
to the minority judgment of Ngcobo J in
Sidumo
, Duncanmec
argued that the arbitrator failed to consider all the evidence placed
before her in deciding the fairness of the dismissal.
[14]
It concluded by submitting that it was irregular and unreasonable for
the arbitrator to hold that a final written warning
was a fair
sanction in present circumstances.
[35] Proceeding from
the premise that the employees’ singing amounted to hate speech
and racism at the workplace, Duncanmec
argued that the arbitrator’s
reasoning was “out of kilter with the . . . prevailing
jurisprudence” which requires
that racism be rooted out of the
workplace. These contentions were foreshadowed in the grounds
of review raised against the
award in the Labour Court. If
these submissions are upheld, Duncanmec would be entitled to
succeed. Therefore, leave
to appeal should be granted.
Issues
[36] Two issues
arise on the merits. The first is whether the conduct of the
employees in singing the struggle song in question
constituted
racism. The second is whether the impugned award was vitiated
by unreasonableness.
Were the
employees guilty of racism?
[37] At the outset
it is important to note that the word to which Duncanmec objected is
not an offensive racist term.
[15]
It became clear during the hearing that the only word that
referred to race was “boer”. Depending on the
context, this word may mean “farmer” or a “white
person”. None of these meanings is racially offensive.
This much was conceded by Duncanmec’s legal
representative during the hearing. However, he argued that it
was
the context in which the word in question was uttered which
rendered the singing a racist act.
[38] Crucial to this
enquiry are the arbitrator’s findings which appear in the
impugned award. Notably the arbitrator
did not hold that the
song contained racist words. Instead, she concluded that the
song was inappropriate and that “it
can be offensive and cause
hurt to those who hear it”. More importantly, the
arbitrator drew a distinction “between
singing the song and
referring to someone with a racist term”. These factual
findings were accepted as correct by Duncanmec
in the affidavit filed
in the Labour Court in support of the review.
[39] NUMSA did not
take issue with the finding that the singing of the song at the
workplace was inappropriate and offensive in
the circumstances.
Therefore, I am willing to approach the matter on the footing that
the employees were guilty of a racially
offensive conduct. The
question that arises is whether the award issued by the arbitrator
was vitiated by unreasonableness.
Unreasonableness
[40] As is apparent
from
Sidumo
, the genesis of the reasonableness standard of
review is section 33(1) of the Constitution which confers on everyone
the right
to administrative action that is lawful, reasonable and
procedurally fair. Since an award like the one we are concerned
with
here constitutes administrative action, the Constitution
requires it to be procedurally fair, lawful and reasonable.
This
means that an award that fails to meet these requirements is
liable to be set aside on review. These requirements are in addition
to the grounds of review listed in section 145 of the LRA.
However, to some extent the latter grounds may overlap with the
constitutional requirements. But the reasonableness standard is
sourced from section 33 of the Constitution alone.
It does
not form part of the overlap.
[41]
Sidumo
cautions against the blurring of the distinction between appeal and
review and yet acknowledges that the enquiry into the reasonableness
of a decision invariably involves consideration of the merits.
So as to maintain the distinction between review and appeal
this
Court formulated the test along the lines that unreasonableness would
warrant interference if the impugned decision is of
the kind that
could not be made by a reasonable decision-maker.
[42] This test means
that the reviewing court should not evaluate the reasons provided by
the arbitrator with a view to determine
whether it agrees with them.
That is not the role played by a court in review proceedings.
Whether the court disagrees
with the reasons is not material.
[16]
[43] The correct
test is whether the award itself meets the requirement of
reasonableness. An award would meet this requirement
if there
are reasons supporting it. The reasonableness requirement
protects parties from arbitrary decisions which are not
justified by
rational reasons.
Duncanmec’s
attack
[44] In support of
the proposition that it was unreasonable for the arbitrator to
conclude that a final written warning was a fair
sanction, Duncanmec
argued that she had failed to consider factors she was required to
take into consideration like the breakdown
of the trust relationship;
the existence of dishonesty; the possibility of progressive
discipline; the existence of remorse; the
job function; and the
employer’s disciplinary code and procedure.
[45] There is no
substance in this submission. With regard to the relationship
of trust, the arbitrator held that “the
evidence before me does
not demonstrate that the trust relationship has broken down”.
This demonstrates that she considered
the issue. She concluded that
the employees must be reinstated on the same terms and conditions
that existed before the dismissal.
[46] Some of the
factors mentioned by Duncanmec as having been overlooked are not even
relevant. For example, dishonesty has
no bearing on whether it
was fair to dismiss employees for committing a racially offensive
misconduct. And so was the failure
to take into account the
employer’s disciplinary code and procedure. The ruling of
the disciplinary hearing makes it
plain that Duncanmec’s
disciplinary code did not prohibit the singing of struggle songs.
As a result, the employees
were not charged with violating the code.
It would have served no purpose for the arbitrator to have paid
regard to the code.
[47] Duncanmec also
accused the arbitrator of having gone soft on racism and argued that
dismissal was the only sanction appropriate
for such misconduct.
The argument lacks merit and rests on a mistaken premise. The
arbitrator’s award does not
say that the employees were guilty
of racism. Instead, the arbitrator held that the song was
inappropriate and could be offensive;
hence a distinction was drawn
between the singing and the use of racist terms.
[48] But even if the
singing had amounted to uttering racist words, dismissal of the
employees could not follow as a matter of course.
There is no
principle in our law that requires dismissal to follow automatically
in the case of racism. What is required
is that arbitrators and
courts should deal with racism firmly and yet treat the perpetrator
fairly. Thus in
South African Revenue Service
this Court
said:
“
None of this should lead to the mistaken belief that the
use of very strong derogatory language like kaffir would always
militate
against the reinstatement of an offending employee
.
Crown Chickens
does not purport to lay that down or articulate
it as an inflexible principle. On the contrary, the Court
underlined the
particularly crucial role that courts have to play of
ensuring that racism or racial abuse is eliminated. And that
they must
fulfil that duty fairly, fully and firmly.
The
notion that the use of the word kaffir in the workplace will be
visited with a dismissal regardless of the circumstances of
a
particular case, is irreconcilable with fairness
. It is
conceivable that exceptional circumstances might well demonstrate
that the relationship is tolerable.”
[17]
[49] Realising that
the law did not support the proposition that every employee guilty of
racism should be dismissed, Duncanmec’s
legal representative
changed course and urged this Court to lay down such rule to
facilitate the eradication of racism in the workplace.
This
invitation should be declined because such a rigid rule would be
inconsistent with the principle of fairness which constitutes
the
benchmark against which dismissals are tested.
Was the award
unreasonable?
[50] The issue that
remains for consideration is whether the impugned award was vitiated
by unreasonableness. In determining
this question the Court is
required to examine the award for the reasons motivating the decision
reached. If the reasons
advanced rationally support the outcome
arrived at, interference with the award on the basis of
unreasonableness would not be justified.
This would be the
position even if the Court does not agree with the reasons
furnished. Section 33 of the Constitution does
not guarantee a
perfect or correct administrative action but a reasonable one.
[51] It is apparent
from the award that, having held that the singing of the song was
inappropriate but distinguished it from crude
racism, the arbitrator
paid attention to the context in which the misconduct was committed.
She took account of the fact
that this occurred during a strike
within a tense atmosphere. But underscored the fact that the
strike was “peaceful
and short-lived”. Following
consideration of the evidence which included the findings made by the
chairperson of the
disciplinary enquiry and the employees’
personal circumstances and the fact that all had clean records, the
arbitrator held
that the dismissal was substantively unfair.
[52] It will be
recalled that in determining the fairness of the dismissal the
arbitrator was applying a “moral or value judgment
to
established facts and circumstances”.
[18]
A reading of the award shows that the arbitrator considered the
competing interests of Duncanmec and the employees.
Having
weighed them up, she concluded that a final written warning and
reinstatement, coupled with a limited compensation was a
fair
outcome. All of this illustrates rationality in the reasoning
leading up to the impugned decision. Therefore,
the
reasonableness requirement has been met. Since the other
grounds of review were not established it follows that the appeal
must fail. For reasons set out in the judgment of the Labour
Court which accord with the general rule in labour matters,
there
should be no order as to costs.
Order
[53] In the result
the following order is made:
1. Leave to appeal is granted.
2. The appeal is dismissed.
3. There is no order as to costs.
For the Applicants:
S Snyman instructed by Snyman Attorneys.
For the Respondents:
C Orr and N Mncube instructed by Ruth Edmonds Inc.
[1]
Brink v Kitshoff N.O.
[1996] ZACC 9
;
1996 (4) SA 197
(CC);
1996 (6) BCLR 752
(CC) at para 40.
[2]
President of the Republic of South Africa v Hugo
[1997] ZACC
4
;
1997 (4) SA 1
(CC);
1997 (6) BCLR 708
(CC) (
Hugo
) at para
41.
[3]
Minister of Home Affairs v Fourie
[2005] ZACC 19
;
2006 (1) SA
524
(CC);
2006 (3) BCLR 355
(CC) at para 60.
[4]
Modikwa Mining Personnel Services v CCMA
(2013) 34 ILJ 373
(LC) at para 23.
[5]
Crown Chickens (Pty) Ltd t/a Rockland Poultry v Kapp
(2002)
23 ILJ 863 (LAC);
[2002] 6 BLLR 493
(LAC) (
Crown Chickens
) at
para 35.
[6]
South African Revenue Service v Commission for Conciliation,
Mediation and Arbitration
[2016] ZACC 38; 2017 (1) SA 549 (CC);
2017 (2) BCLR 241 (CC).
[7]
Id at para 9.
[8]
66 of 1995.
[9]
Labour Court judgment at paras 78-80.
[10]
Sidumo v Rustenburg Platinum Mines Ltd
[2007] ZACC 22; 2008
(2) SA 24 (CC); 2008 (2) BCLR 158 (CC).
[11]
South African Revenue Service
above n 6 at para 30.
[12]
Sidumo
above n 10.
[13]
Id at para 79.
[14]
Id at paras 178 and 180.
[15]
September v CMI Business Enterprise
CC
[2018] ZACC 4
;
2018 (39) ILJ 987 (CC); 2018 (4) 483 BCLR (CC).
[16]
Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering
Industries Bargaining Council
[2010] ZALAC 25
; (2011) 32 ILJ
1057 (LAC) at para 18.
[17]
South African Revenue Service
above n 6 at para 43.
[18]
National Union of Metalworkers of South Africa v Vetsak
Co-operative Ltd
[1996] ZASCA 69
;
1996 (4) SA 577
(A) at 589.