AMCU obo Mabale v CCMA and Others (JR1474/19) [2021] ZALCJHB 227 (10 August 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR1474/19

In the matter between:

AMCU obo MABALE D Applicant

and

CCMA First

Respondent

COMMISSIONER SHIRAZ MAHOMED OSMAN N. O Second Respondent

TSHIPI E NTLE MAGANESE MINING Third Respondent

Heard: 03 August 2021 (Virtually)

Delivered: 10 August 2021 (This judgment was handed down electronically by emailing a copy to the parties. The 10th of August 2021 is deemed to be the date of delivery of this judgment).

Summary: Due to Covid-19 lockdown period this application was heard virtually and the parties agreed to this arrangement. Review application – award falls outside the bounds of reasonableness. Held: (1) The award is reviewed and set aside and replaced with an order of this Court. (2) No order as to costs.

JUDGMENT

MOSHOANA, J

Introduction

[1] This is an opposed review application seeking to review and set aside an arbitration award issued by the second respondent in terms of which it was found that the dismissal of Mr Daniel Kgosietsile Mabale (Mabale) is substantively fair. The second respondent dismissed Mabale’s claim. Aggrieved thereby AMCU on behalf of Mabale launched the present application. The application is opposed by the Mine, Tshipi E Ntle Manganese Mining (Tshipi). The application was heard virtually on 03 August 2021, whereafter judgment was reserved.

Background facts

[2] Effective from 01 April 2017, Tshipi employed Mabale as a plant supervisor. During his tenure as an employee, he became aware that three positions of weighbridge operators had become vacant. Mabale’s wife Mrs. Precious Mabale (Precious) who happened to be a trained weighbridge operator was searching for employment at the time. Mabale forwarded the CV of Precious to a fellow employee to forward to human resources for consideration. Following a rigorous internal process, which did not involve Mabale, Precious was appointed to one of the vacant positions.

[3] On or about 3 July 2018, Mabale received a charge sheet containing the following allegations:

“On 29 January 2018 you sent an email correspondence to Edith Chere of DVD Engineering…requesting her to help you and to push the submission of certain CVs to the Company, one of which was your wife’s CV…who was subsequently employed in the position of Weighbridge Operator.

In this regard, it is alleged that you:-

1 Failed to act in the utmost good faith in your relationship with the Company; and/or

2 Failed to use your best endeavours to properly conduct and preserve the reputation and good will of the Company; and or

3 Exposed the Company to potential legal, financial and reputational risk.’

[4] Following a disciplinary hearing, Mabale was found guilty and dismissed. His internal appeal could not save his employment. Since he was aggrieved, he referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) alleging an unfair dismissal. After an arbitration process, the impugned arbitration award was issued.

Grounds of review

[5] Mabale punts for four grounds of review namely; (a) the award defies the realm of reasonableness; (b) failure to consider mitigating and aggravating factors; (c) failure to apply his mind to the outcome; and (d) failure to consider a sanction other than dismissal.

Evaluation

[6] The test for review is that a decision must be so unreasonable that a reasonable decision-maker may not reach it. Put differently, the decision must not fall within the bounds of reasonableness. When it comes to dismissal for reasons of misconduct, a commissioner must determine whether a dismissed employee is guilty of the charge that led to his or her dismissal and whether dismissal as a sanction was appropriate. Section 188 (2) of the Labour Relations Act[1] (LRA) provides that any person considering whether or not the reason for dismissal is a fair reason must take into account any relevant code of good practice issued in terms of the LRA. Therefore, in considering the fair reason of the dismissal of Mabale, the second respondent was obliged to have regard to the code of good practice. Schedule 8 of the LRA contains a code of good practice. Of relevance to this matter is item 7 of the code. The item provides as follows:-

“7 Guidelines in cases of dismissal for misconduct

Any person who is determining whether a dismissal for misconduct is unfair should consider –

(a) Whether or not the employee contravened a rule or standard regulating conduct in or of relevance to, the workplace; and

(b) If a rule or standard was contravened, whether-

(i) The rule was a valid or reasonable rule or standard;

(ii) The employee was aware, or could reasonably be expected to have been aware, of the rule or standard;

(iii) The rule or standard has been consistently applied by the employer; and

(iv) Dismissal was an appropriate sanction for the contravention of the rule or standard.”

[7] Employers are legally entitled to set work rules or standards. It is not a requirement that these rules or standards must be in a written form. However, in order to ensure that employees are aware of the rules or standards, it is advisable for such rules or standards to be reduced to writing. There are certain rules that would apply in the workplace even if they are not written down. For an example an employee is expected to act in good faith and not in conflict of the interests of the employer; not damage the reputation of the employer or expose the employer to any form of risk.

[8] As a general duty to act in good faith, an employee must act in accordance with what is in the best interest of the business of the employer instead of that of his/her own interest. Therefore where a conflict of interest arises, an employee must declare such a conflict and where possible not advance his/her own personal interests. In this matter, it was in the personal interests of Mabale for his wife to be employed and it was in the business interests of Tshipi for the position of a weighbridge operator to be filled. These two interests do not conflict at all. Generally, a conflict of interest occurs when an individual’s personal interests compromises his or her judgment, decisions or actions at the workplace.

[9] In dismissing Mabale, Tshipi considered the conduct of Mabale asking for help in employing Precious to be wrong and categorized it as a failure to act in good faith and to preserve the fama of Tshipi. It is surprising how that can ever be a failure to act in good faith, denting of the fama of Tshipi or even expose it to risks. The second respondent reached a reasonable conclusion by stating that there was nothing wrong in seeking employment for one’s spouse. This conclusion suggests that in seeking help for the employment of Precious, Mabale did not contravene any rule or standard that is work related. This Court agrees with the reasonable conclusion in this regard. What the second respondent found wrong is the non-compliance with ‘formal recruitment procedures channels’. The difficulty with this finding is that Mabale was not dismissed for non-compliance with any recruitment channels formal or informal. The second difficulty is that no evidence was led of the existence of such formal recruitment procedures that were allegedly not followed by Mabale. There was no evidence that Mabale was aware or ought to have been aware of those procedures. Logically, it is expected that such formal procedures must be documented. There was no evidence to that effect.

[10] It does not take the say-so of Ms Moemise that Mabale in his position should have known better. Work rules are designed for all employees and not for senior employees only. It is unfair to expect senior employees to speculate whether a particular conduct is acceptable or not. A further difficulty is that the second respondent, for no apparent reason, equated the alleged non-compliance with the formal channels with nepotism. This equation is not consistent with the undisputed evidence that Mabale played no part in the employment of Precious. Submitting a CV to the external recruitment agency and pleading for help is far from being nepotistic. By definition, nepotism means the practice among those in power or influence of favouring relatives or friends, especially by giving them jobs. The uncontested evidence is that Mabale played no role in the employment of Precious. Precious was employed because she met the requirements for the post. To this day she is still employed by Tshipi. If she did not meet the requirements, she would have not been employed despite the sending of the email. That much is clear when regard is had to the exchanged emails that the appointment of Precious rested with the human resources of Tshipi. There was no suggestion by any witness that Edith received pressure from Mabale to put undue pressure to the human resources to employ Precious. The emails actually reflects that Edith stated in no uncertain terms that the employment of Precious is dependent on the human resources of Tshipi. She even suggested to Mabale that he could use his influence since he was employed by Tshipi. There was no evidence of such influence ever happening. The enquiries made to Edith’s fiancé, Bosman, were those of an anxious husband wishing to see his wife employed. If he acted nepotistically, as suggested by the commissioner, he would have not needed any support but could simply have employed his wife without human resource department. His preference as a supervisor should all the three candidates be employed, including Precious is not evidence of any nepotism.

[11] Returning to item 7, it is the duty of the commissioner to apply his or her own sense of fairness and consider whether the sanction of dismissal is a fair one or not. There is no indication in the impugned award that the second respondent ever considered this question. Typically, the second respondent deferred to the sanction of the employer, something that has long been rejected. Nowhere in the impugned award does the second respondent consider, as he should, whether the sanction of dismissal is fair or not. This is an irregularity that vitiates the award. True, section 138 of the LRA requires a commissioner to give brief reasons, however that does not license the non-giving of reasons or leaving a review judge to second-guess the reasons. At a general level the impugned award is not a model of clarity. Certain conclusions are incoherent and inconclusive.

[12] For an example at paragraph 28, the second respondent concludes thus:

“for brief reasons above, I am satisfied that the applicant is guilty of the charge and that the respondent had acted consistently in applying its discipline.”

[13] Under issues to be decided the second respondent recorded that with regard to substantive fairness, the only challenge was limited to the issue of guilt and inconsistency. This appears to be arising from the pre-arbitration minutes. Having allowed the parties to limit him to those two issues, the second respondent actually misconducted himself. It is the duty of a commissioner to consider the fairness of a sanction of dismissal. The only instance when a commissioner may be absolved from that duty is when the dismissed employee expressly accepts that the sanction of dismissal as imposed by an employer is fair. Commissioners have a duty to assist lay parties with regard to the conduct of arbitration[2]. Nowhere in the transcript is there an indication that Mabale accepted the sanction of dismissal as imposed by Tshipi as being fair and appropriate. Instead the transcript indicates that the representative of Mabale raised a concern why Mabale was dismissed when Bosman was not. He stated that it was not fair to dismiss Mabale.

[14] That should have alerted the second respondent that the fairness of dismissal as a sanction was under attack as it generally should be. When regard is had to the so-called “brief reasons” one is left with questions like, what about the sanction of dismissal; was it fair or not? Such a question is not addressed at all. The reason appears to be the limitation that the second respondent gave to himself, when he assisted the parties to conclude a pre-arbitration agreement. It does appear that the charge that he found Mabale guilty of is that he admitted to sending the email to Edith.

[15] This is illogical when considered with his own finding that seeking employment for a spouse is not wrong. One wonders what work rule has been contravened by Mabale by sending emails to Edith seeking help. The email correspondence which was largely conducted in the Tswana language demonstrates a man who is anxious for his wife to obtain employment. Objectively viewed, the communication is completely innocuous. It is not one that is capable of denting the good image of Tshipi or place it at any risk.

[16] That which the second respondent found laughable is not actually laughable as he seeks to make it. It demonstrate that to the knowledge of Mabale, it is not against any rule to seek employment for relatives. Bosman did it and was only counselled. Without considering the validity of finding Bosman guilty, this Court still wonder what work rule was contravened in this regard. However the fact that Bosman was counselled and Mabale was dismissed accounts for inconsistency in application of discipline. It seeks to demonstrate that Tshipi does not consider it to be a serious misconduct, if ever it was one, for employees to assist in the employment of relatives.

[17] In conclusion, regard been had to the above, it follows that the award of the second respondent is not one that a reasonable decision maker may reach in light of the evidence and the applicable legal principles. Axiomatically, the award must on application of the

constitutional test be set aside.

[18] This Court has all the material before it to substitute the decision of the second respondent with one that is constitutionally compliant. It is clear that Mabale did not contravene any known work rule as such he was not supposed to be dismissed. His dismissal was for no fair reason. Accordingly, his dismissal was substantively unfair. With regard to remedy, Mabale persisted with his quest to be reinstated. He deserves to be reinstated as he did nothing wrong. The Labour Appeal Court (LAC) in VSB Construction t/a Techni-Civils CC v NUM OBO Mngqola and others[3] stated the following:

‘[10] In the present case, dismissal should not have legally taken place. So much is clear from the finding that the dismissal was substantively unfair…If a dismissal should not have occurred, the employment relationship would have continued…Without a showing of exceptional circumstances, it is impermissible to couple a finding that a dismissal was inappropriate with a finding that reinstatement would not be appropriate.

[11] In the present case, there is no such showing. No evidence was led during the arbitration hearing to the effect that reinstatement would be an inappropriate order.’

[19] Despite being bound by this decision on application of the stare decisis principle, I tend to agree with the LAC that where the dismissal was not legally permissible, unless the exceptions set out in section 193 (2) of the LRA are shown to exist, reinstatement must not be ousted. Moemise testified as a plant manager. She led no evidence to suggest that reinstatement was inappropriate. To simply state that trust is lost is not sufficient to oust reinstatement. It was only in closing submissions that the representative of Tshipi at arbitration expressed his view that reinstatement is inappropriate.

[20] For the above reasons this application must succeed. The award is one that does not pass the constitutional muster.

[21] In the premises the following order is made:

Order

1. The award issued by Shiraz Mahomed Osman dated 29 May 2019 issued under case number NC2387-18 is hereby reviewed and set aside.

2. It is replaced with an order that the dismissal of Mabale is substantively unfair.

3. Tshipi is ordered to reinstate Mabale with retrospective effect and without any loss of benefits.

4. There is no order as to costs.

G. N. Moshoana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr A Cook

Instructed by: LDA Inc, Johannesburg.

For Respondent: Ms S Hanif

Instructed by: ENS Inc, Sandton.

[1] No. 66 of 1995, as amended.

[2] See Nkomati Joint Venture v CCMA and others [20129] 40 ILJ 819 (LAC).

[3] (PA11/2008) [2021] ZALAC 21 (23 July 2021).