Naicker v ACSA King Shaka International Airport and Others (D484/2022) [2024] ZALCD 6 (23 January 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN

Not Reportable

CASE NUMBER: D484/2022

In the matter between: -

KUMARASAN NAICKER

Applicant

And

ACSA KING SHAKA INTERNATIONAL AIRPORT First Respondent

THE COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

Second Respondent

COMMISSIONER HUMPHREY NDABA

Third Respondent

Heard: 06 December 2023

Delivered: 23 January 2024 (This judgement was handed down electronically by emailing a copy to the parties. The 23rd of January is deemed to be the date of delivery of this judgement)

JUDGEMENT

TSHANGANA, AJ

INTRODUCTION

[1] In this matter the Commissioner, found that the Applicant’s dismissal was substantively unfair however, he did not order that the First Respondent must reinstate the Applicant. In this regard he stated the following:

“53. In my view relations have been frayed and are irretrievably broken down. The Applicant himself as supervisor could have used a better analogy”

54. In the circumstances, reinstatement would be undesirable.

[2] Consequently, the Commissioner awarded the Applicant compensation of six months’ salary x R21 000.00 = R126 000.00.

[3] The applicant has filed this application under the provisions of section 145 of the Labour Relations Act 66 of 1995 ("LRA").

In terms of which he seeks the following orders:

(a) that the arbitration ruling rendered by the Third Respondent under the auspices of the Second Respondent under case number KNDB3244-20 is hereby reviewed and set aside and/ corrected.

(b) Costs in the event that any of the Respondents oppose the review.

Grounds for review

[4] The Applicant’s aground for review are that the Third respondent, failed to apply his mind, misconduct himself, committed a gross irregularity, misconceived the nature of the enquiry, and exceeded his powers thereby issuing an award that is reviewable on the following grounds:

25.1 “The Commissioner misconstruction the true nature of the proceedings. It is common cause between the parties that the reason for dismissal advanced by ACSA relates to misconduct. In the circumstances, the Applicant made a “verbal assault”, which the First Responded could not prove the substantive fairness of the Applicants dismissal as there was no rule in the workplace that constituted the word “verbal” assault.

25.2 The Third Respondent grossly erred in his finding as in his award he admitted that the First Respondent did not sufficiently establish substantive fairness. Therefore, the commissioner who finds that an employee’s dismissal was substantively unfair must direct the employer to either reinstate or re- employ the employee unless-

25.2.1 The employee does not wish to be reinstates or re- employed.

25.2.2 A continued working relationship would be intolerable.

25.2.3 It is not reasonably practicable for the employer to reinstate or re- employ the employee.

Therefore, there is no reason why the Third Respondent could not award the Applicant, the primary remedy of reinstatement with full back pay.

25.3 The Third Respondent failed to apply his mind to the issue of compensation as it was not just and equitable as I was unfairly dismissed. And awarded me to 6 months compensation instead of the relief sought which was reinstatement with full back pay. taking

25.4 The Third Respondent further erred by not into consideration that my continued unemployment at the time of the

hearing was not considered as I have been unemployed for approximately 31 months thus failing to consider the award of compensation in relation to my loss of income that I had suffered at the time of the award being issued.

25.5 The Third Respondent in his award makes mention that “relations have been frayed and are irretrievably broken down”. In this regard, the Third Respondent does not substantiate what is meant by “frayed”. It is then not possible to assume that the word frayed” means that the relations can be amended. If so, the Third Responded should have awarded me reinstatement with full back pay.

25.6 The Third Respondent’s award in most instance is contradictory as can be gleaned from the following:

25.6.1 In our Law, verbal assault encompasses a situation whereby the complaint testifies that he was threatened with assault and he or she indeed believed that the assailant could imminently carry out the threat.

25.6.2 Where a supervisor makes an analogy of slaves and masters this scenario could not constitute as an assault.

25.6.3 However, the analogy is not palatable to be uttered at the workplace particularly by a supervisor.

25.6.4 I do not doubt that the supervisor apologized when he realized that his utterance caused offence.

25.6.5 In the circumstances, the Respondent has not succeeded in proving verbal assault on a balance of probabilities

25.7 From the above, paragraphs, it is clear that the Third Respondent was not sure what award to render therefore rendered an award that was unreasonable and prejudicial to me.

27.8 The Third Respondent erred in referring to Lancelot Ndlovu as the second witness when in fact he was the first witness.

25.9 Further, I wish to bring to the above Honourable Court’s attention that I am not challenging the Third Respondent’s finding of substantive fairness but rather the correcting of the award of 6 months compensation to the relief sought i.e. reinstatement with full back pay”.

COUNTER REVIEW: APPLICATION

[5] Before I deal with the main application I will deal with the Counter – Review Application. In the Counter - Review application the First Respondent seeks the following orders:

1. Condoning the late filing of the counter – review application;

2. Reviewing and setting aside the arbitration ruling delivered by the Third Respondent under case number KNDB3244- 20 in so far as the findings the Third Respondent made in paragraphs 46 and 47.

[6] The application for condonation of the late filing of the Counter – Review application is granted.

[7] The Applicant was charges with “VERBAL ASSAULT” and the Employer’s case was that the charge falls under 5.3 of the Guidelines for Disciplinary Actions[1], therefore, dismissal is an appropriate sanction even on first offense. 5.3 lists assault or attempted assaults as offences that

dismissal is an appropriate sanction even on first time infringement.

[8] The Applicant referred to 5.9 which deals with “use of foul language, making disparaging remarks, making improper gestures at other employees”

[9] In paragraph 46 of the impugned award the Third Respondent states that “In our law verbal assault encompasses a situation whereby the complainant testifies that he was threatened with assault and he or she believed that the assailant could imminently carry out the threat”.

[10] The counter – review application seeks to challenge the Commissioner’s reasoning that verbal assault should be accompanied by a threat of assault. I fully agree with the First Respondent that verbal assault does not necessarily require a threat of assault. Furthermore, the Arbitrator does not give authority for this view.

[11] However, the crux of the matter here is the use of the phrase “A slave cannot serve two masters”. The disciplinary code guidelines[2], does not have “verbal assault” as a stand-alone charge. It either falls under 5.3 as per Employer’s version or under 5.9 as per Applicant’s version.

[12] In paragraph 50, the Commissioner stated that: “In the circumstances, the Respondent has not succeeded in proving “verbal assault” on balance of probabilities”. First of all, in the Employer’s guidelines for disciplinary actions, verbal assault does not exist on its own as a separate charge. However, the Employer submits that verbal assault falls under 5.3 which is assault or attempted assault.

[13] No witnesses or complainants asserted that they experienced assault or faced a threat of assault. Consequently, the basis for the complaint does not align with section 5.3. Instead, it could be construed as involving the making of disparaging remarks, a category covered by section 5.9.

[14] Hence, even in the event that this court concurs with the assertion that paragraph 46 is inaccurate, it does not advance the case for the First Respondent. This is because the charge of verbal assault is not a standalone offense. The classification of the offense as 5.3 necessitates either assault or the threat of assault, which the employer has failed to substantiate.

[15] The Commissioner was correct in paragraph 47, whereby he found that “Where a supervisor makes analogy of slave and master, this scenario could not constitute an assault”. The reference to assault is based on the employer categorization of the charge as falling under 5.3.

[16] In Sidumo, the Constitutional Court (per Navsa AJ) set the test for unreasonableness as follows: Is the decision reached by the commissioner one that a reasonable decision maker could not reach?[3]

[17] Sidumo test is the test for substantive reasonableness of the outcome or result of the award. In terms of Myburg et al: Reviews in Labour Court, 2016, page 30, “Reasonableness does not equate to correctness. A wrong decision will thus pass the muster, provided it in not so wrong to be unreasonable” Therefore, the Applicant must show that the award is not capable of reasonable justification on all material that was before the

Commissioner, including for reason not considered by the Commissioner.[4]

[18] In Bato Star, O’Regan J, lists factors relevant to deciding whether a decision

is reasonable.[5] “What will constitute a reasonable decision will depend on the circumstances of each case, much as what will constitute a fair procedure will depend on the circumstances of each case. Factors relevant to determining whether a decision is reasonable or not will include the nature of the decision, the identity and expertise of the decision – maker, the range of factors relevant to the decision, the reasons given for the decision, the nature of competing interests involved and the impact of the decision on the lives and well-being of those affected”

[19] In the circumstances of this matter, “verbal assault” does exist on its own in the guidelines for disciplinary action however, the employer elected to categorize the charge under 5.3 which is assault or attempted assault instead of 5.9 which deals with “use of fault language, making disparaging remarks, making improper gestures” Therefore, it was not unreasonable of the Commissioner in paragraph 47, to require an element of “assault” to prove the charge. If the charge was under 5.9 there would be no need to prove assault.

[20] In Herholdt v Nedbank Ltd (2013) 34 ILJ 2795 (SCA)[6], the Supreme Court stated that the review test involved the reviewing court examining the merits of the case “in the round”.

In essence that means that, even if one of the grounds for review were to be successful, the determining factor is whether a reasonable

arbitrator in the same circumstances would have come the same decision.

[21] Therefore, if the ground of review on its own does not alter the ultimate findings, then the review application will not succeed. The court must look at the totality of the evidence.

[22] Therefore, even if this court were to review and set aside paragraph 46, however, paragraphs 47 and 50 still remain, consequently, the ruling that dismissal was unfair remains. The Employer has failed to prove the charge against the employee especially in view of the fact that the charge has been charactered as falling under 5.3 which requires an element of assault.

[23] Therefore, in relation to the counter – review I find that with regard to, paragraph 47 there are no grounds to review or set it aside as the Employer’s own version is that the charge falls under 5.3, therefore, the element of assault or attempted assault is required for the employee to be guilty of a charge in terms of 5.3 of the guidelines to disciplinary actions.

[24] Therefore, paragraphs 47 and 50 of the impugned award remain, therefore the dismissal of the Applicant was unfair.

[25] The counter – review application is dismissed, with no order as to costs.

MAIN REVIEW APPLICATION

Section 193 of the LRA, Remedies for unfair dismissal and unfair labour practice

[26] Once the Arbitrator finds that the dismissal was unfair, the provisions of section 193 of the LRA, are applicable.

[27] In terms of section 193 (1) the Labour Court or an arbitrator may:

(a) Order the employer to reinstate the employee from any date not earlier that the date of dismissal;

(b) Order the employer to re-employ the employee, either in the work in which the employee was employed before the dismissal…

(c) Order the employer to compensate the Employee.

[28] Section 193 (2) provides that the Labour Court or Arbitrator must require the employer to reinstate or re -employ the employee unless: -

(a) The employee does not wish to be reinstated or re – employed;

(b) The circumstances surrounding the dismissal are that that a continued employment relationship would be intolerable;

(c) It is not reasonably practicable for the employer to reinstate or re – employ the employee; or

(d) The dismissal is unfair only because the employer did not follow a fair procedure

[29] In contrast to subsection (1), where the term "may" is utilized, subsection (2) employs the term "must," indicating a mandatory and non-discretionary requirement. Consequently, a presiding officer, whether acting as a Judge or an Arbitrator, is obligated to order the reinstatement or re-employment of the employee upon determining that the dismissal was substantively unfair. This directive stands unless one or more of the grounds outlined in 193(2) (a) to (d) is present.

[30] In this matter the Commissioner found that the dismissal was substantively unfair however, he did not order that the First Respondent must reinstate the Applicant. In this regard in paragraph 53 he stated that “In my view relations have been frayed and are irretrievably broken down. The Applicant himself as a supervisor could have used a better analogy”.

[31] As a result, the Commissioner awarded the Applicant six month’s compensation.

Issue to be determined by this court: Do the exceptions listed in section 193 (2) (a) to (d) exists in this matter to justify failure to reinstate or to re-employer the Applicant?

[32] Section 193 (2) is peremptory and in the absence of the grounds listed in 193 (2) (a) to (d) the Judge or Arbitrator has no discretion and they must order reinstatement or re-employment. In Kraukam v SA Airlink (Pty) Ltd (2005) 26 ILJ 2153, the Labour Appeal Court as per Zondo JP held:

“[114] None of the situation set out in section 193 (2) (a) to (d) exists in this matter. That being the case this court is enjoined by section 193 (2) to grant the appellant an order of reinstatement. In this regard it is important to emphasize that the language of s 193 (2) is such that, if none of the situations set out in paras (a) – (d), exists, the Labour Court and, therefore, this court, or an arbitrator, has no discretion whether or not to grant reinstatement. In the words of s 193 (2) the Labour Court or the arbitrator “must require the employer to reinstate or re – employ the employee’ whose dismissal has been found to have been unfair. That embraces both dismissals which have been found to be automatically unfair and those which have been found to be, shall I say, ordinary unfair. Ordinary unfair dismissal in this context does not include those which have been found to be unfair solely because the employer did not follow a fair procedure because those fall under the exception in para (d). It refers to those dismissals which are not automatically unfair but nevertheless lack a fair reason.”

[33] The Constitutional Court in the case of Booi v Amathole District Municipality and others [2022] 1 BLLR 1 (CC) further confirmed that reinstatement is the primary remedy for unfair dismissal. In a unanimous decision written by Kamphephe ADCJ, the Constitutional Court held:

“[38] It is plain from this Court’s jurisprudence that where a dismissal has been found to be substantively unfair, “reinstatement

is the primary remedy” and, therefore, “[a] court or arbitrator must order the employer to reinstate or reemploy the

employee unless one or more of the circumstances specified in section 193 (2) (a) to (d) exists, in which case compensation may be ordered depending on the nature of the dismissal”.

[34] In paragraph 53 the Commissioner only says “In my view relations have been frayed and are irretrievably broken down. The Applicant himself as a supervisor could have used a better analogy”.

[35] The words “relations have been frayed” are not explained and there are no objective examples to demonstrate why he believes the relationship has irrretrivably broken down.

[36] The irretrievable breakdown of employment relationship is not just a mere say -so, evidence and the facts must demonstrate that there has been irretrievable breakdown of the employer and employee relationship. The mere fact that the disciplinary process caused awkwardness between the employee and superior, on its own does not amount to irretrievable breakdown of employer - employee relationship. By its nature, disciplinary hearing causes discomfort, friction or awkwardness between the employee and his superior or those who testify against him or her. But that on its own does not amount to irretrievable breakdown of employment relationship. However, the court may infer irretrievable breakdown of relationship from the hostile manner and attitude demonstrated by the parties during the disciplinary hearing or arbitration.

[37] The breakdown of employer - employee relationship requires an objective test that demonstrates that the employer - employee relationship would be intolerable and cannot be retrieved. The Labour Appeal Court (LAC) held in (para 31), Dunwell Properties Service CC v Sibande [2011] 32 ILJ 2652 (LAC) that:

“[31] In order to determine whether or not an unfairly dismissed employee should be reinstated as contemplated in s 193 (2) of the LRA, the overriding consideration in the enquiry should be the underlying notion of fairness between the parties, rather than legal onus, and that “fairness” ought to be assessed objectively on the facts of each case bearing in mind that the core value of the LRA is security of employment”

Breach of Trust and Intolerable continuation of employment relationship

.

[38] In the of Department of Finance and Economic Development, Gauteng v Mosome 2014 ZALAC 46 (19 September 2014), an employee was charges with insubordinate behavior towards her supervisor by using unacceptable language that demonstrated disrespect by saying to her supervisor that she must be stupid, she must stop calling her at home (when she was contacted while she was supposed to be on duty), also telling her supervisor that she does not deserve the post she holds. The arbitrator found that there her dismissal was substantively unfair but would not order reinstatement because the employment relationship between her and the employer had irretrievably broken down with no prospects of reconciliation. The arbitrator, therefore awarded seven month’s pay as compensation.

[39] The Labour Court set aside the award, remitted the matter to allow further evidence as to why the dismissed employee should or should not be reinstated in accordance with section 193 (2) of the LRA. The second arbitrator appreciated that the only issue before her was to determine whether the employee after having been found if insubordination by the first arbitrator was unfairly dismissed or whether she ought to have been reinstated or re- employed in terms of section 193 (2) of the LRA. Further the second arbitrator appreciated that in terms of section 193 (2) (b) of LRA, an exception to the primary remedy of reinstatement or re-employment in the case of dismissal provided, where pursuant to section 193 (2) (b) “the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable”. Having applied her mind to the totality of the evidence , the second arbitrator found that the appellant had conclusively established that employment relationship between the parties had irretrievably broken down to such an extent that the employment relationship could not be resuscitated hence a continued employment relationship would be intolerable.

[40] The LAC upheld the second arbitrator’s finding that the derogatory, insulting, contemptuous and disrespectful conduct on the part of the employee towards supervisor struck the core of employment relationship such that reinstatement of the first respondent would be intolerable because the employment relationship had irretrievably broken down, not only with her supervisor but also Head of Department. Since the employee’s insubordination “affected the heart of the employment relationship” the second arbitrator rationally and properly exercised her discretion under 193 (2) not to reinstate but to compensate the employee”

[41] In this matter the main question is whether or not, one or more of the exceptions contained in s193 (2) (a) to (d) exists to deviate from reinstating the Applicant.

[42] The submissions provided in the affidavits and in the records do not deal in details with the exceptions in section 193 (2) (a) to (d) to allow for a deviation from implementing the primary remedy of reinstatement instead of compensation. Allegations are just made without substantiation. For example, Ndlovu alleges that the incident caused animosity between the Indians and Blacks in the work place but no Indian or Black was called to testify on that[7]. The allegations in the affidavits, the award and the record do not deal with section 193 (2) (a) to (d).

[43] This court sitting on review is deprived of an opportunity to received evidence from the witnesses, to observe the witnesses and make a decision on whether or not any of the exceptions in 193 (2) (a) to (d) exist in this matter.

Order

[44] Therefore, paragraphs 52 to 59 of the award are hereby reviewed and set aside.

[45] The matter is hereby remitted back to the Second Respondent to appoint a different Arbitrator within 21 days of receipt of this judgment to only consider evidence in the form of documents or oral evidence, as to whether or not any of the exceptions listed in s193 (2) (a) to (d) exists in this matter to justify the deviation from the primary remedy of reinstatement in terms of section 193 (2).

[46] In the event that, the Arbitrator finds that none of the exceptions listed in section 193 (2) (a) to (d) exist in this matter then the primary remedy of reinstatement must be implemented.

[47] Conversely, in the event that one or more of the exceptions listed in s193 (2) (a) to (d) of the LRA exist then the arbitrator must award a just and equitable award he deems fit under the circumstance.

Costs

[48] Each party to pay its own costs.

S. TSHANGANA,

(Acting Judge of the Labour Court)

Appearances:

For the Applicant

MOOLA ATTORNEYS INCORPORATED

Per: Mr. M. Khambule

For First Respondent

Mr. M. Ka – Siboto

Instructed by MOTHLE JOOMA SABDIA INC.

Date of Hearing: 06 December 2023

[1] Index to Record of Proceedings: Volume 2, page 185

[2] Index to Record of Proceedings: Volume 2, page 185

[3] Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] 12 BLLR 1097 (CC).

[4] Fidelity Cash Management Service v CCMA & others [2008] 3 BLLR 197 (LAC) para 103.

[5] Bato Star Fishing (Pty) Limited v Minister of Environmental Affairs and others [2004] ZACC 15; 2004 (4) SA 490 CC para 45.

[6] 2013) 34 ILJ 2795 (SCA

[7] See Index to record of proceedings – Volume 1 -17 January 2022 transcript, page 27 line 5.