NEHAWU obo Tholakele v Harms NO and Others (JR1652/13) [2016] ZALCJHB 198 (25 May 2016)

THE

LABOUR COURT OF SOUTH AFRICA

HELD

AT JOHANNESBURG

CASE NO : JR 1652-13

DATE: 25 MAY 2016

In the matter between:

NEHAWU

OBO ZITHA THOLAKELE.................................................................................Applicant

And

COMMISSIONER

ELSABE HARMS N.O...............................................................First Respondent

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION..............................................................................................Second Respondent

NETCARE HOSPITAL (PTY) LTD T/A NETCARE

WATERFALL

CITY HOSPITAL..............................................................................Third Respondent

Heard: 18 May 2016

Delivered: 25 May 2016

Summary:(Strike misconduct – indecent exposure characterised as very serious misconduct by employer – effect of agreement on unpaid suspension as an alternative to dismissal - arbitrator’s credibility findings – evaluation of reasonableness of dismissal as an appropriate sanction)

Judgment

LAGRANGE J

Introduction

[1] The applicant in this matter was dismissed on 24 April 2013 for inappropriate/indecent exposure during a strike and picket for allegedly pulling her pants down and exposing her naked bottom near the entrance to the hospital where the vehicles were coming and going from the premises and in view of security officers monitoring the picket. At the time the applicant was employed as a pharmacy clerk at the applicant’s private hospital and was a shop steward.

[2] She alleged that her dismissal was substantively and procedurally unfair on the respective basis that the chairperson of the disciplinary enquiry was biased and she was not guilty of the offence. Lastly, it was contended that the parties had agreed that a lesser sanction than dismissal would apply in cases where misconduct committed during the course of the strike could otherwise lead to dismissal.

[3] The arbitrator, in her award dismissed all these claims.

The award

[4] The claim of unfair procedure concerned consultation between the chairperson and the Employee Relations department on the issue of sanction. The issue is closely related to one of the pillars of the review of the arbitrator’s findings on substantive fairness. The arbitrator found that the chairperson of the disciplinary enquiry did indeed consult with the Employee Relations manager about the effect of the addendum on the issue of sanction and therefore did consider it. The applicant contends the evidence that the chairperson did consider the effect of the addendum was insufficient for the arbitrator to conclude that she had.

[5] The arbitrator found that:

“[35] Employees are duty bound to uphold their employer’s good name and reputation. Improper conduct, including public indecency tends to bring the employer’s name into disrepute and may justify disciplinary action. It is generally assumed that certain conduct is calculated to destroy the employment relationship, whether or not it is expressly prohibited in a contract or disciplinary code, and that the employee knew or should have known that this conduct would lead to dismissal.

[36] The three security officers employed by Servest Security that testified for the respondent did not have any interest in this

matter. They were not forced, coerced or paid by the respondent testified during these arbitration proceedings. They were independent

witnesses as they not employed by the respondent. Their recollection of the incident was consistent and the evidence corroborated each other’s testimony stop at no stage during the arbitration proceedings that they appear uncomfortable, uneasy or have difficulty in answering questions. I find it difficult to believe that three independent people would “dream-up” a story like this. Why would they lie and be the cause of the applicant’s dismissal?”

[6] By contrast, the arbitrator found that the applicant failed to provide any credible alternative explanation other than a bare denial that she was guilty of the charge. The arbitrator was also of the view that because her denial was false, it compounded the breach of trust she had committed through the misconduct itself. Turning to the credibility of the applicant’s own witnesses, who also denied that she had pulled down her pants during the picket, the arbitrator said the following:

“[39] The applicant’s witnesses were all participating in the strike action and had a common purpose in mind. I believe they would go out of their way to protect their shop steward, even if it meant to lie for her during these proceedings. It would seem to me that the common purpose that was an element of strike action, also played out in the testimony of the applicant’s witnesses.”

The arbitrator concluded that the applicant’s dismissal was substantively fair for the following reasons:

“[40] The respondent at no stage testified that the intention behind the addendum to the resolution that was agreed on between the parties was to impose a sanction of unpaid suspension in every single case that one is a dismissal. It was merely intended that the chairperson may consider alternatives to dismissal. In this case the misconduct committed by the applicant was of such a serious nature and it could not be condoned. What message with the respondent send out to their employees or members of the public they allow person to drop their pants in public and then only suspend such a person without pay for two weeks? Applicant’s conduct on 24 April 2013 was disgusting and utterly disrespectful towards her employers good name. It is clear that the applicant does not have any moral standards. What makes matters worse is that she was a shop steward and a Marshal. The employees respected her and the respondent expected her to conduct herself in a professional manner during the strike action. The actions clearly show that she is not capable of doing so.

[7] An issue that was a fundamental part of the review proceedings concern the status and interpretation of an addendum to a strike settlement agreement. On 25 May 2013 the parties entered into a collective agreement headed ‘Resolution of Strike Discipline’. In terms of that agreement the parties identified certain types of misconduct which warranted a written warning which included into alia misconduct such as: making excessive noise; singing of offensive songs including abusive language; intimidation of employees to

participate in the picket or strike, and making offensive actions and obstructing access to the hospital. Final written warnings were warranted for misconduct such as: intimidation involving removing people from the vehicle to prevent them from going to work; bringing the name of the company into disrepute by unruly and unprofessional behaviour when picketing at night and damage to property. Employees who did not accept final written warnings had the option of answering the charges of misconduct at a formal disciplinary enquiry. The parties also agreed that a disciplinary enquiry would be held in the case of allegations of misconduct which the employer regarded as ‘very serious’. These were listed in clause 5 of the agreement as: intimidation by carrying a dangerous weapon or objects during the period of industrial action; assault of non-striking employees, and inappropriate/indecent conduct/exposure and that the employee exposed him/herself in an offensive manner during picketing.

[8] After the conclusion of the agreement, an addendum was also agreed upon which read:

“The parties agree that the chairperson of the disciplinary enquiries in regard to clause 5 should also consider suspension without pay for between two and four weeks as an absolute alternative to dismissal provided that the employee agrees to the sanction as alternative to dismissal. Failure by the employer to agree to the unpaid suspension, dismissal will then be the sanction. This provision is only applicable to the process covered by this agreement.”

[9] The arbitrator considered this agreement and the evidence of the employment relations manager of the respondent Ms C Zondagh who testified that the chairperson of the enquiry had consulted with her before a final decision of dismissal was handed down. She also noted her evidence that the intention of the addendum was for a chairperson to consider suspension without pay as an alternative to dismissal, but in this instance the misconduct committed was of such a serious nature that suspension without pay would not have been appropriate.

The review

[10] The applicants raised a number of grounds of review, but I will only concern myself with those which were substantiated with reference to the record, carry some prospect of success, or are important enough to warrant mention. The more important ones are those concerning the findings of the arbitrator on issues relevant to the substantive fairness of the dismissal. I have mentioned the complaint about the procedural fairness of the enquiry, but can see nothing irrational about the arbitrator’s approach to that complaint or about her conclusion that the dismissal was procedurally fair.

The arbitrator’s assessment of the conflicting evidence on the commission of the act of misconduct was irrational

[1] The arbitrator’s assessment of the credibility of the security officers’ testimony and that of the applicant’s witnesses was one that could not be reasonably justified. In support of this, the applicant points out that there were inconsistencies in the evidence of the security officers and the evidence that no camera footage of the applicant’s conduct was available because the battery of the camera being used by the security officers had run down was implausible.

[2] The evidence at the arbitration given by the security guards was that there was a digital camera in use, but at the time of the incident it was being charged at the security control room. The evidence of two of the security officers was that the applicant had not merely pulled her pants down and then pulled them up again, but they remained down for at least a few minutes. It is true that they did not agree whether she had pulled her trousers down to knee height or ankle height, but such an inconsistency is not

so material as to doubt their entire version, bearing in mind that their attention was probably not focussed on the exact level of her trousers. The event was also recorded in the strike occurrence diary. It was suggested that one of the security officers Mr Nong had not seen the incident, but in his evidence in chief he had recalled what the applicant was wearing and was not challenged on this. All three of the security guards who testified seemed to have been genuinely shocked and embarrassed by the applicant’s conduct. It cannot be said that there was any obvious basis for saying that their evidence was contrived or artificial.

[3] On the other hand, the applicant is quite correct to argue that the arbitrator ought not to have simply made a blanket adverse finding of credibility against the applicant’s witnesses, based solely on the fact that they were participating in the strike and the applicant was their shop steward. If the credibility of witnesses were to depend entirely on which side of the management–union divide the witnesses fall, few witnesses could be believed in disputes of this kind. That said, the conclusion that the security officers’ testimony was more credible was not an unreasonable one on the evidence, given that the probabilities of their testimony to such an extraordinary act of protest being concocted are low and in the absence of any concrete evidence of a conspiracy to fabricate evidence on their part, or demonstrable motive to implicate her falsely other than the fact that their company was appointed by the respondent.

[4] Consequently, it cannot be said that the conclusion the arbitrator reached in the evaluation of the evidence for and against the commission of the misconduct was an implausible one, notwithstanding her own skewed interpretation of credibility.

The arbitrator ignored the effect of the agreement and addendum

[5] The agreement and its addendum clearly were intended to prohibit dismissal as a sanction for misconduct and the employer and the arbitrator were bound to respect and abide by the restrictions on dismissal imposed by the agreement. At the very least the arbitrator ought to have, but failed, to take account of what the parties intended to achieve when entering into the agreement.

[6] The hospital argued that it was never intended that the addendum removed any discretion from the chairperson to impose a sanction of dismissal: it merely provided that the chairperson was entitled to consider a limited period of suspension without pay as an alternative to dismissal.

[7] I agree with the applicant that the arbitrator was clearly bound to consider the settlement agreement and addendum. The issue is whether the addendum required the chairperson to offer suspension without pay between two and four weeks as an alternative to dismissal, in all cases where dismissal was justified. There was evidence of the Employee Relations manager that the chairperson of the enquiry had consulted her about the agreement before imposing the sanction of dismissal and there was no other evidence to gainsay that she had considered suspension as an alternative. The arbitrator also considered the possibility of suspension but dismissed it as an untenably lenient option given her perception of the gravity of the applicant’s misconduct.

[8] The applicant argued effectively that the addendum obliged the chairperson to offer her the option of suspension without pay as an alternative to dismissal, but if that was the case then why use the word ‘consider’ rather than simply imposing a strict obligation on the chairperson to make an employee an offer of suspension in every case where dismissal was deemed appropriate?

The arbitrator displayed personal bias in deciding dismissal was appropriate

[9] The commissioner displayed bias in her expression of personal moral outrage at the applicant’s conduct according to the applicant. I agree that the arbitrator appeared to take personal affront at the applicant’s conduct and presumed not only to make a finding on the gravity of her conduct but also to judge the applicant’s character in general. In this respect, the arbitrator went beyond the bounds of her sphere of duties as an arbitrator and relied overmuch on her own private sense of moral values to determine the seriousness of the misconduct and the appropriate sanction.

[10] It is true that the parties themselves had specifically agreed in clause 5 of the agreement that the offence in question was one that could not be disposed of with a final written warning but warranted a full enquiry. They also agreed that it was to be grouped together with intimidation by carrying dangerous weapons or objects during the strike and with assault of non-strikers. In fact the offence the applicant was charged with seems almost to have been tailor made to fit her misconduct, but that was not simply the design of management, but was agreed to by her union. Thus, it was not simply the arbitrator’s values which was a basis for justifying the sanction, but the agreement reached by the parties themselves.

[11] In this regard, it must be mentioned that common sense would suggest that the applicant’s conduct complained of had more in common with the category of misconduct described as ‘singing of offensive songs, including abusive language and making offensive actions’ for which the parties deemed a written warning as sufficient. Even intimidation of workers to join the strike or picket only warranted a written warning in their joint view. Further, the parties also agreed that strikers who forcibly pulled non-strikers out of vehicles should only be subject to a final written warning. In short, the parties themselves appear to have agreed on a spectrum of appropriate sanctions for different offences which appear to out of kilter with each other in many respects and which are hard to interpret as an internally consistent hierarchy of misconduct.

[12] The Constitutional Court judgement in Sidumo & another v Rustenburg Platinum Mines Ltd & others 2008 (2) SA 24 (CC );(2007) 28 ILJ 2405 (CC ) dispensed decisively with the approach that an arbitrator should defer to an employer’s decision on sanction, viz:

“[78] In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been I breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee's challenge to the dismissal.

There are other factors that will require consideration. For example, 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. This is not an exhaustive list.

[79] To sum up. 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. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.”[1]

[13] It is true that the arbitrator was dealing with a situation where the recommended sanction for certain action was not one determined unilaterally by an employer, but with a situation where parties reached an agreement on a hierarchy of disciplinary measures purposely designed to address misconduct committed in the course of the recent strike. The agreement was not drawn up in a context where the conduct described in the document was contemplated in the abstract for future acts of misconduct but was to address events which had already occurred.

[14] Where parties have agreed on how they rank different forms of misconduct as they have done in this case, that clearly must be one of the relevant circumstances the arbitrator must consider, just as it would be relevant to take account of the fact that an employer’s disciplinary code might recommend certain sanctions for different types of misconduct. The fact that the standard originates in a collective agreement settling a dispute arguably requires it to be given greater weight than a standard unilaterally determined by an employer.

[15] Nonetheless, what Sidumo emphasised is that the arbitrator must independently and impartially determine the fairness of a dismissal in the performance of his or her statutory arbitral function relating to unfair dismissal claims. The arbitrator had to determine if the applicant’s dismissal was fair, not simply by reference to what the parties had agreed, but with reference to the need to strike a balance between fairness to the employee and employee parties and the statutory provisions which the arbitrator is subject to in the LRA.[2] The arbitrator was tasked with deciding if the dismissal of the applicant for misconduct she was found guilty of was a fair dismissal without giving in to her own unrestrained value judgment.[3]

[16] It appears the arbitrator seems to have arrived at her conclusion strongly influenced by her own personal sense of revulsion at the applicant’s conduct. If she believed that the impression created by a sanction short of dismissal was decisive, the arbitrator ought to have considered in assessing the seriousness of the applicant’s conduct relative to other strike misconduct “What message will the respondent send out to their employees or members of the public they allow strikers to intimidate persons to join their strike and pull non-strikers out of cars only to issue such a person with a warning or final written warning.” The applicant performed an obscene gesture which caused embarrassment to those who witnessed it and she exposed herself more than momentarily. As such, it may justifiably have been considered more serious than the conduct of employees who were issued with written warnings for singing offensive songs or using abusive language. But it is difficult to see how the arbitrator could have rationally accepted that the applicant’s misconduct belonged in a category of serious misconduct equivalent to assault and more serious than acts of intimidation. There was also no evidence of relevant aggravating factors which might have altered the severity of her misconduct.

[17] Consequently, I am satisfied that the arbitrator’s conclusion that the applicant’s dismissal was substantively fair was one that no reasonable arbitrator could have arrived at.

[18] In determining an alternative sanction, something less than dismissal seems appropriate and a sanction which is more commensurate with those other forms of misconduct identified for disciplinary sanction in the post-strike agreement, in my mind would have been a final written warning valid for a period of twelve months for offensive and unacceptable conduct in the course of participating in a strike.

[19] As to the question of reinstatement, there was no evidence to show it might be impracticable or that the relationship had broken down so it follows that the applicant ought to be reinstated. However, given the elapse of time since her dismissal, I am reluctant to make such reinstatement fully retrospective in the interests of fairness to both parties.

[20] Similarly, on the question of costs, this is not a case where it can be said that the employer’s defence to the application was unjustified so it would not be appropriate to make an order of cost against it.

Order

[21] The arbitration award of the first respondent dated 10 July 2013 issued under case number GAJB 15431/13 is reviewed and set aside insofar as the second respondent found the applicant’s dismissal was substantively fair.

[22] The second respondent’s finding that the applicant’s dismissal was substantively fair, is substituted with a finding that her dismissal was substantively unfair.

[23] The applicant is reinstated with retrospective effect to 1 November 2014 on the same terms and conditions applicable to her on the date of her dismissal, without loss of continuity of service.

[24] The applicant must tender her services to the third respondent within 10 days of the date of this judgment.

[25] The third respondent must pay the applicant backpay for the period since the effective date of reinstatement on 1 November 2014 until the date she returns to work, within 15 days of her return to work. In the event the parties are unable to agree on the quantum of backpay, either party may request the court to determine the same by way of an application.

[26] No order is made as to costs.

Lagrange J

Judge of the Labour Court of South Africa

APPEARANCES

APPLICANT : v Kinghorn

Instructed by : Frans F Erasmus Attorneys

THIRD RESPONDENT : V Reddy of Norton Rose Fulbright Inc.

[1] At 2432-2433

[2] A more detailed examination of these factors is set out in the Sidumo judgment of Ngcobo J at 2459 - 2463 [167]-[184]

[3] See Sidumo at 2461-2: “[178] …The commissioner's task is not to ask what the appropriate sanction is but whether the employer's decision to dismiss is fair. [179] In answering this question, which will not always be easy, the commissioner must pass a value judgment. However objective the determination of the fairness of a dismissal might be, it is a determination based upon a value judgment. Indeed the exercise of a value judgment is something about which reasonable people may readily differ. [180] But it could not have been the intention of the law-maker to leave the determination of fairness to the unconstrained value judgment of the commissioner.”

[3] See Sidumo at 2461-2:

“[178] …The commissioner's task is not to ask what the appropriate sanction is but whether the employer's decision to dismiss is fair.

[179] In answering this question, which will not always be easy, the commissioner must pass a value judgment. However objective the determination of the fairness of a dismissal might be, it is a determination based upon a value judgment. Indeed the exercise of a value judgment is something about which reasonable people may readily differ.

[180] But it could not have been the intention of the law-maker to leave the determination of fairness to the unconstrained value judgment of the commissioner.”