Independent Communications Authority of South Africa v Mashinini and Others (JR778/19) [2021] ZALCJHB 225 (21 April 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR778/19

In the matter between:

INDEPENDENT COMMUNICATIONS

AUTHORITY OF SOUTH AFRICA Applicant

And

SUZAN JOHANNA MASHININI First

Respondent

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATIONCOMMISSIONER Second

Respondent

FAIZEL MOOI N.O Third Respondent

Heard: 10 February 2021 (via Zoom)

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour

Court’s website and released to SAFLII. The date and time for hand-down is deemed to be 10h00 on 21 April 2021.

Summary: Review of award – misrepresentation and dishonesty are serious misconducts that warrant dismissal.

JUDGMENT

NKUTHA-NKONTWANA, J

Introduction

[1] This is an application in terms of section 145 of the Labour Relations Act[1] (LRA) to review and set aside an arbitration award issued by the third respondent (Commissioner) under case number GAJB 13380-18 dated 10 April 2019. The applicant (ICASA) impugns the award on the basis that the Commissioner committed a number of gross irregularities which led to him coming to a decision that a reasonable decision maker could not have come to.

[2] The first respondent (Ms Mashinini) is defending the award. ICASA takes issue with the fact that she filed her answering affidavit late, yet she did not seek condonation despite having been warned. In fact it is clear from the correspondence between that ICASA was persisting with his challenge. However, Ms Mashinini failed to apply for condonation. Instead, she briefed counsel to counsel an application for postponement to, inter alia, attend to the condonation application. The application for postponement was vehemently opposed by the ICASA and its counsel contended that Ms Mashinini had ,ore that a year to address the issue of the later filing of her answering affidavit but failed.

[3] In the light of the fact that this matter has been dragging for about three years and the unpersuasive reasons for postponement, I was disinclined to grant postponement. In the absence of condonation application, Ms Mashinini’s answering affidavit was indeed not properly before court. Nonetheless, I commend Ms Mashinini’s counsel because she did to bail out on her but argued the matter of the basis of the papers before court since her notice of intention to oppose had been filed on time.

Background

[4] Ms Mashinini was dismissed by ICASA on 24 May 2018 for reasons related to misrepresentation, dishonesty and insolence. The salient facts underlying the allegations of misconduct with which Ms Mashinini was charged and ultimately dismissed, were that:

4.1. In June 2016, she lodged a written complaint and objection to the members of ICASA’s Executive and Council in which she used derogatory language and made unmerited accusations against ICASA;

4.2. She attached to the complaint a list with employees’ names and signatures purporting to collectively represent those employees when she did not have a mandate to do so. It is common cause that the said list was compiled and used for collective grievance of unfair labour practice.

4.3. She misrepresented to ICASA that the employees whom she purportedly represented were in support of the derogatory complaint and objection which she had lodged.

[5] Accordingly three charges were levelled against Ms Mashinini. The first and second charges relate to allegations of misrepresentation and dishonesty emanating from the fact that she used a list that was compiled for the previous grievance. The third charge relates to the content of the grievance which was ICASA viewed as insolent in that Ms Mashinini used and disrespectful language to falsely accuse ICASA management. The disciplinary enquiry was presided over by an independent chairperson. Ms Mashinini was found guilty and a sanction of dismissal was recommended and endorsed by ICASA.

[6] Displeased with her dismissal, Ms Mashinini referred a dispute to the CCMA. Pursuant to a failed conciliation, the dispute was arbitrated and hence the impugned award. The Commissioner effectively found that Ms Mashinini guilty of insolent behaviours but not guilty of misrepresentation and dishonesty. As such, her dismissal was found be substantively unfair and a reinstatement with full back pay was ordered.

Review test

[7] Tritely, the review test is reasonableness or misapprehension of the nature of the enquiry.[2] As set out by the Constitutional Court in Sidumo and Another v Rustenburg Platinum Mines and Others,[3] and expounded by Labour Appeal Court (LAC) in Fidelity Cash Management Services v Commissioner for Conciliation, Mediation and Arbitration and Others[4] and Department of Education v Mofokeng Head of the Department of Education v Mofokeng,[5] the award might be said to be unreasonable if the Commissioner came to an outcome that to was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

Misrepresentation and dishonesty

[8] ICASA takes issue with the finding of the Commissioner on the ground that it is at variance with the evidence that was before him. It is common cause that Ms Mashinini sent an email to the ICASA’s Executive and Council members wherein she annexed a letter addressed to Mr Mthunzi Maseti (Mr Maseti), the Employee Relations Specialist, objecting to the draft leave policy. She states in that letter that the employees whose names and signatures appeared on the list attached thereto note the draft leave policy with ‘disdain’ and ‘cannot rubberstamp the draconian policy that will put employees worse off than before’. As things turned out, the list Ms Mashinini claimed to support the grievance was compiled solely to support the previous grievance in relation to an unfair labour practice claim.

[9] Mr Maseti, testified that Ms Mashinini knew that, by using this list she was garbling the truth in order to bolster her grievance which she filed directly to the Council members. Also, even the grievance itself was devoid of truth because the proposed amendments were evidently more generous than the statutory minimum, a fact conceded by Ms Mashinini.

[10] Ms Mashinini had hard time explaining the reason for using the old list. Firstly, she seemed to suggest that it was a collective decision that the list would be used. She was adamant that there were secret meeting that were held with ICASA employees were that decision must have been taken. The flaw in this assertion is that the controversial list includes the names of employees who were no longer in the employ of ICASA. Even those who were still in the employ of ICASA were placed in different provinces. When Ms Mashinini was unable to deal with this hurdle, she did a cartwheel, asserting that she and other two colleagues, Messrs Khanyile and Rasemule, were appointed representatives of the employees of ICASA and it was their decision to use the old list.

[11] The notion that Ms Mashinini was appointed representing all employees at ICASA is fallacious. Firstly, it is common cause that even though Ms Mashinini had previously been a shop-steward of Communications Workers Union (CWU), ICASA employees kicked CWU out when they terminated their membership en masse. Secondly, she conceded during cross-examination that there was no workplace forum. In essence, it was incumbent upon Ms Mashinini to produce proof that she had indeed been mandated by the respective employees; a fact she seemed to have understood that perfectly well because the previous grievance in relations to unfair labour practice she managed to secure the signatures of all who supported that grievance. Thirdly, for some unfathomable reason, Ms Mashinini testified that she had managed to galvanise the workforce to impugn the draft leave policy which she conceded was not draconic. Cleary, the grievance against the daft leave policy was unmeritorious and was based on the misrepresentation of facts.

[12] Absent proof that Ms Mashinini had been mandated by all ICASA employees to challenge the draft leave policy, she was patently on a folic of her own. It is clear from the uncontested evidence of Mr Maseti that CWU was kicked out solely because its members were of the view that it was engaging ICASA without their mandate. Yet, Ms Mashinini had audacity to approach ICASA on a claim that she represented all ICASA employees when she was not a union representative or properly mandated; an obvious distortion fact. In my view, the Commissioner’s finding which imputes this conduct to negligence on the part of Ms Mashinini unreasonable.

[13] It is also apparent for the transcript that the Commissioner misunderstood the case ICASA as being solely hinged on the fact that some of the employees whose names appeared on the impugned list were no longer in its employ. Mr Maseti was at pains to point out that in the absence of a trade union or work place forum, Ms Mashinini could not have claimed to represent all ICASA employees without proof thereof. Besides, there was no evidence that the applicant or any a group of employees needed any expertise to collate signatures in support of the grievance pertaining to the draft leave policy. Conversely, these employees are kicked out CWU. As such, Ms Mashinini as their former shop-steward ought to have known that she could no longer act as their agent without a clear mandate.

[14] Ms Mashinini’s contention that she had been pressed for time hence she decided to use the old list in support of the grievance against the draft leave policy is untenable. It was ICASA’s uncontroverted evidence that the draft leave policy was a product of consultation with ICASA employees and that that the final draft had generous terms and not draconic as alleged by Mashinini. Thus, there nothing urgent at all.

[15] Ms Mashinini as a last a last resort, she testified that she, together with Mr Khanyile and Mr Rasemule, were appointed as employees representatives. As alluded to above, in absence if a formal representative structure like a trade union, a proof of mandate was imperative. It is baffling that, despite the predicament Ms Mashinini found herself in and a threat to her job after submitting the grievance, still she could produce a new list to ratify her actions.

[16] In sum, the Commissioner’s that Ms Mashinini was negligent is fanciful as the evidence points to a deliberate and unscrupulous action. Even if Ms Mashinini was indeed negligent, the Commissioner could not have imputed her negligence to Messrs Khanyile and Ramesule in the absence of any evidence that they had a relationship which invoked agency principles, like in a case of a trade union.

Sanction

[17] The enquiry on the appropriateness of the sanction entails a consideration of the totality of circumstances which, inter alia, include the importance of the rule breached, the reason the employer imposed the sanction of dismissal, the basis of the employee's

challenge to the dismissal, the harm caused by the employee's conduct, whether additional training and instruction may result in

the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record.[6]

[18] In the present instance, the commissioner found that the sanction of dismissal was inappropriate mainly because he had found Ms Mashinini not guilty of misrepresentation and dishonesty. However, in the light of the findings I have arrived at above, the sanction is appropriate. Ms Mashinini was on a final written warning on a related misconduct which involved unscrupulous conduct. Notably, she was not a stranger reprimand and was blatantly unremorseful. Her long service is inconsequential given the seriousness of the transgression. Tritely, dishonesty constitute a serious breach of trust.[7] Ms Mashinini was a on frolic of her own, insolent to her senior colleagues and ICASA Council members whilst propagating a baseless

grievance.

Conclusion

[19] In the circumstances, I am satisfied that the Commissioner’s decision is a decision that no reasonable person could reach on the facts of this case. Accordingly, the award falls to be reviewed and set aside.

[20] Even so, in my view, to remit this matter back to the CCMA for hearing de novo in the circumstances not be fair to both parties. In addition, the record is adequate for the Court to make a decision on the merits and to substitute the award. After a careful perusal of the record and in the light of the findings I have arrived at above, I am convinced that the dismissal of Ms Mashinini was substantively fair. Given the nature and gravity of the misconduct, I am also convinced that dismissal was the only appropriate sanction.

Costs

[21] As a rule, costs do not follow the result in this Court in line with the requirements of the law and fairness.

[22] I, accordingly, make the following order:

Order

1. The arbitration award under case number GAJB13380-18 dated 10 April 2019 is reviewed and set aside and substituted with the following order:

1.1 The dismissal Ms Mashinini is substantively fair.

2. There is no order as to costs.

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Neil Searle of Fasken (incorporated in South Africa as Bell Dewar)

For the First Respondent:

Instructed by: Jabu Hanyani Attorneys

[1] Act 66 of 1995, as amended.

[2] Sidumo and Another v Rustenburg Platinum Mines and Others (Sidumo) [2007] 12 BLLR 1097 (CC) at para 79; Herholdt v Nedbank Ltd (Congress of South African Trade Unions as amicus curia) [2013] 11 BLLR 1074 (SCA); Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation and Arbitration and Others [2013] ZALAC 28; [2014] 1 BLLR 20 (LAC) (Gold Fields) ; (2014) 35 ILJ 943 (LAC) at paras 14 to 16; and Head of the Department of Education v Mofokeng [2015] 1 BLLR 50 (LAC) (Mofokeng).

[3] Sidumo ibid at para 110.

[4] Gold Fields supra n 2 at para 21.

[5] Mofokeng supra n 2 at para 33.

[6] Sidumo supra n 2 at para 78; Bridgestone SA (Pty) Ltd v National Union of Metalworkers Union of South Africa and Others [2016] ZALAC 40; (2016) 37 ILJ 2277 (LAC); National Commissioner of the SA Police Service v Myers and Others (2012) 33 ILJ 1417 (LAC) at para 82-85.

[7] Autozone v Dispute Resolution Centre of Motor Industry & Others (2019) 40 ILJ 1501 (LAC) at paras 12-12.