Forever Living Projects (Pty) Ltd v Stripp NO and Others (JR1928/18) [2021] ZALCJHB 24 (19 January 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JR 1928/18

In the matter between:

FOREVER LIVING PROJECTS (PTY) LTD

Applicant

and

CHARMAINE HALIAN STRIPP N.O (cited in her capacity as

Commissioner of the Commission for Conciliation

Mediation and Arbitration)

First Respondent

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION

Second Respondent

NOMPUMELELO CINDY BOLELWANG Third Respondent

Heard: 28 October 2020

Delivered:19 January 2021

JUDGMENT

Mabaso, AJ

Introduction

[1] Following Ms Nompumelelo Cindy Bolelwang’s (Ms Bolelwang) dismissal by Forever Living Projects (Pty) Ltd (the Applicant) for referring to her manager, Mr Michael Harrington (Mr Harrington), as a racist, Ms Bolelwang declared an unfair dismissal dispute at the CCMA against the Applicant. Ms Charmaine Halian Stripp (the Arbitrator) was appointed to arbitrate the dispute, whereas, after allowing both parties to present their respective versions, she concluded that the dismissal was substantively unfair because “ [Ms Bolelwang ] did not falsely accuse [Mr] Harrington of being a racist”.[1]

[2] The Applicant asks this Court to review and set aside the arbitration award( the award) and replace it with an order that the dismissal was substantively fair. Alternatively, it referred it to the CCMA for hearing de novo. Further prayers are that Ms Bolelwang bears the costs, as the party opposing these proceedings.

The arbitration hearing and outcome thereof

[3] Before the Arbitrator, the following facts were common cause: Mr Harrington is a warehouse manager of the Applicant’s department, consisting only Black men. The workplace of the Applicant consists of mostly Black people and only three white people. Mr Harrington, in November 2017 had a meeting with his warehouse staff wherein, inter alia, addressed them about the conduct of certain members, which he believed were sabotaging him and explicitly said they were provoking

him to use the “K” word.

[4] A few months later, in May 2018, Ms Bolelwang had an IT problem within the Applicant, then Mr Michael Faltein (Mr Faltein) was assigned to assist her. They subsequently met. During this meeting, Mr Faltein suggested that if Ms Bolelwang had problems accessing the internet, she should talk to Mr Harrington. Ms Bowelwang responded by stating that she would not because Mr Harrington was a racist, as he once said “he mustn't be forced to use the K-word,” when was addressing his staff.

[5] Mr Faltein went to report Ms Bolelwang to management. Subsequently, the latter summoned Ms Bolelwang before a disciplinary hearing to answer to the following charge:

“…unacceptable and divisive behaviour in that on 10 May 2018 when questioned why you had not consulted with senior about the termination of your Internet/immediate access you remarked that you were not prepared to as he was a racist and you said that he thought all our staff were …And here you used K-word.”[2]

[6] Before the charges as mentioned earlier were levelled against Ms Bolelwang, Mr Harrington made a written statement, about being branded as a racist by Ms Bolelwang, which partly reads thus:

“In a meeting that I called at about the same time between [Ms Bolelwang], Ken and me the issue of my shouting was raised. I made the point that certain members of staff were provoking me to get to use the “K” word then action could be taken against me….”

And

“In my dealings with staff generally I have been at pains to condemn the person's action. In referring to me as a racist considering my position in the company, and the sensitivity of the black people in the post in our post-apartheid era, race issue can cause a considerable problem.”[3] (Own emphasis)

[7] The later aforecited excerpts indicate that Mr Harrington acknowledges that racism is considered as a major problem in this country based on its history. However, still being a manager in a department consisting of 100% blacks, he uttered the above-mentioned statement, which is the core of this dispute. It has to be stated that at the beginning of arbitration the meaning of K-word was not apparent until Mr Harrington clarified it, as in his viva voca evidence denied that has ever in the work environment referred to any staff "using the k-word or the full word the kaffir…”. In cross-examination, Mr Harrington conceded that previously he has referred to his staff as stupid.

[8] Mr Harrington disputed that he once said to Ms Bolelwang, and one Alpha, that he has never met any black person who speaks the truth and that if he talks, he uses phrases such as "you Black people”.

[9] In her conclusion, the Arbitrator said the crux of the dispute was whether Ms Bolelwang ’s accusations were baseless and without reasonable course. Furthermore, she said she needed to consider the term racist. She then referred to the judgment of this Court, South African Chemical Workers Union obo Z Tsegane v NCP Chlorchem (Pty) Ltd and others (J1399/2005, and said it was held that a racist is defined as a person behaving in, advocating, or practising racism; and further defines racism. The Arbitrator then said considering that Mr Herrington's statement was made in the context of the staff meeting where he was “having a go” at the staff, and she found the conduct of Mr Harrington being an odd comment to make.

[10] The Arbitrator, further says she cannot envisage any employee taking any comfort from being assured by their manager in the meeting that he will not be provoked into saying the K-word. She then finally concluded that these comments contributed to Ms Bolelwang to conclude that Mr Harrington was indeed a racist; subsequently, Ms Bolelwang was found by the Arbitrator not guilty of the charge; thus, the dismissal was declared substantively unfair.

Grounds for this review application and applicable principles

[11] The Applicant contends that the Arbitrator misdirected the inquiry because it was whether Ms Bolelwang falsely accused Harrington of being a racist.[4]

[12] The Arbitrator's conclusion is one that a reasonable decision-maker could not have made; or failed to apply her mind thereto.

[11] The compensation equivalent to 10 months, awarded by the Arbitrator, is unreasonable because there is no justification thereto.

[12] There are limited grounds in which this Court can interfere with an Arbitrator's decision, considering that this is a reviewing court and not a court of appeal; see Eskom Holding Ltd v Fipaza and others [2013] 4 BLLR 327 (LAC) (Fipaza). An Arbitrator is expected to deal with a real dispute between the parties, and focuses on a reason for dismissal as provided by an employer if dismissal relates to misconduct. This Court has to take into account that an arbitration award is not expected to be detailed, see House of Flowers and others v Radebe and others [2014] 4 BLLR 366 (LAC) (Hadebe) at para 16. However, in assessing the point raised in the review, this Court has to consider the entire records presented before it, which will help determine if the conclusion is supported by material presented before an Arbitrator. See Herholdt v Nedbank Limited 2013 (6) SA 224 (SCA) at para 25.

[13] There is a two-stage inquiry in this application that must be established by the Applicant to succeed herein. Firstly, is there an irregularity on the part of the Arbitrator? If the answer is yes, did such irregularity prevent parties from having a fair trial of the issues to amount to unreasonableness, considering that irregularity alone does not justify a setting aside of an award.

[14] In a dismissal dispute, an employer has an onus of proof to show that the dismissal was both procedurally and substantively fair. However, a party who relies on a particular point has a burden to present such evidence. See DB Contracting North CC v National Union of Mineworkers &Others[2015] 10 BLLR 973 (LAC) (DB Contracting North) at para 75. Sometimes, it might not be necessary for such a party, who has the burden to present evidence, to do so if it is apparent before an adjudicator.

[15] The charge, which resulted in the dismissal of Ms Bolelwang, has two components: her remarks ( Mr Harrington being accused of being a racist), and its impact (unacceptable and divisive behaviour).

[16] As indicated above, the Applicant contends that the inquiry was “whether [Ms Bolelwang] falsely accused Mr Harrington of being a racist”. She had a burden to show that indeed Mr Harrington was a racist. By perusing the award, I discern that the Arbitrator did decide on this issue, as she concluded that Ms Bolelwang did not falsely accuse Mr Harrington of being a racist. Furthermore, she considered the concessions made by Mr Harrington that he used the K-word, took into account the totality of the circumstances such as that when Mr Harrington talks often uses phrases such as "you Black people", then I conclude that this Court, as a reviewing court, cannot interfere with this conclusion.

[17] Furthermore, on his own words, Mr Harrington confirmed that he told the meeting when he was concern that he was being undermined that he should not be provoked to use K-word, wary that his staff consists of black people only and the word that he used is K-word which he clarified that "K-word" in full means kaffir, and “the sensitivity of the black people in the post-apartheid era”. Therefore, the Arbitrator properly identified, understood and pronounced on the first component of the charge. Moreover, the Arbitrator substantiates her findings in paragraph 40 to 44 of the award. The Arbitrator did not misdirect

herself as she understood the nature of inquiry before her. This Court cannot interfere with this finding because this is not a court of appeal.

[18] However, the award does not deal with the second component: whether comments made by Ms Bolelwang are unacceptable and divisive behaviour. I concur with Mr Higgs's submissions, on behalf of the Applicant, that some statements should be avoided in the workplace, as they are divisive and results in inciting workers to go on an unprotected strike. Now, does the comments made by Ms Bolelwang amount to such conduct. The answer is no. I say this because Mr Harrington made the racist comments in a meeting consisting of Black people, meaning all those who were present are aware of such a statement. Furthermore, when Ms Bolelwang made her comments, she confined to her colleague, Mr Faltein. I do not see anything wrong about it; such comments are not divisive and /or unacceptable behaviour; instead, racist comments should be rebuked.

[19] The third issue to be determined is one of the compensation. The Applicant’s complaint is that compensation is an unreasonably high amount. I do not think that the Applicant has provided grounds to allow this Court to interfere with the Arbitrator's discretion. The Respondent asked for compensation equivalent to twelve (12) months. Instead, the Arbitrator awarded her ten (10) months and the Arbitrator has provided reasons why she ordered this compensation, in paragraph 49 of the award. Considering that once an Arbitrator concludes that dismissal is unfair, she has powers to decide whether she orders reinstatement, reemployment and/ or compensation. In respect of reinstatement, an Arbitrator may determine the date from which the reinstatement will run. In consideration of compensation, the Arbitrator may order any amount

but not exceeding 12 months. This Court cannot easily interfere with the Arbitrator's discretion. Therefore, I conclude that this

complaint also fails.

[20] Based on the above, the following order is made:

1. The review application is dismissed.

2. No costs order.

_____________________

S Mabaso

Judge of the Labour Court of South Africa

Appearances

For the Applicant: Mr C Higgs

Instructed by: Higgs Attorneys Inc.

For the Third Respondent: Ms Ronelda Cooray

Instructed by:

Ronelda Van Staden Attorneys

[1] Para 45 the award.

[2] Records, p 6.

[3] P 265, the bundle of documents.

[4] The affidavit, paras 7.1 to 7.3.