Scheepers v Transnet Bargaining Council and Others (JR1818/20) [2023] ZALCJHB 85 (28 March 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 1818 / 20

In the matter between:

SIPHO SCHEEPERS Applicant and TRANSNET BARGAINING COUNCIL First Respondent THANDIWE TSHAYANA N.O. (AS ARBITRATOR) Second Respondent TRANSNET SOC LTD Third Respondent

Heard: 24 November 2022

Delivered: 28 March 2023

Summary: Review application – review of proceedings, decisions and award of arbitrator – s 145 of LRA considered – review test considered – entails determination of conduct of arbitrator, gross irregularities and reasonable outcome

Evidence – evaluation and determination thereof – proper assessment of evidence by arbitrator – most essential facts undisputed / common cause – no basis to interfere with arbitrator’s conclusions on the evidence

Dismissal – conflict of interest and fiduciary duty – principles and evidence considered – no justification for conduct of employee – constitutes serious misconduct – dismissal justified

Dismissal – sanction – principles considered – position of employee considered – complete breakdown of trust relationship – no contrition / remorse shown – conclusion by arbitrator that dismissal justified reasonable – no basis for interference with award

Review of award – conclusion of arbitrator reasonable – arbitration award upheld

JUDGMENT

SNYMAN, AJ

Introduction

[1] In this instance, the applicant was dismissed by the third respondent as far back as 8 March 2017. The applicant was dismissed pursuant to a disciplinary hearing in which he pleaded guilty to two misconduct charges. The applicant pursued an unfair dismissal dispute to the first respondent as the bargaining council with requisite jurisdiction, which dispute, after some detours which will be set out below, ultimately ended up before the second respondent for arbitration. The second respondent found against the applicant, in that the second respondent found that the applicant’s dismissal by the third respondent was both substantively and procedurally fair. Dissatisfied with this outcome, the applicant has brought an application to review and set aside this arbitration award, which application has been brought in terms of section 145 as read with section 158(1)(g) of the Labour Relations Act (LRA)[1].

[2] The arbitration award of the second respondent is dated 6 October 2020 and was served on the applicant on the same date. The applicant’s review application was filed on 17 November 2020, which is within the six weeks’ time limit as contemplated by section 145 (1) of the LRA. The applicant’s review application is thus properly before Court for determination. The application is opposed by the third respondent.

[3] I will now proceed to decide the applicant’s review application by first setting out the relevant background facts in this matter.

The relevant background

[4] The third respondent is a significant SOE, conducting business in a variety of transport related sectors, and of direct application in this case, the freight rail environment.

[5] The applicant was employed by the third respondent on 7 September 2001, starting as a train driver’s assistant. He was employed together with two other employees, being Mothusi Mutheketela (Mutheketela) and Christopher Mzimba (Mzimba). These three employees proceeded up the ranks in the third respondent, so to speak, over the years, and were familiar with one another. The applicant himself ultimately ended up in the position of operations manager in 2011, a level E senior management position, which position

he held until his dismissal on 8 March 2017.

[6] In and during October 2016, Mutheketela, who also ended up as an operations manager in the third respondent, was required to preside over a disciplinary hearing, which activity would be part of his ordinary duties in that capacity. Mutheketela was initially reluctant to do so, because of his workload, but Mzimba insisted that he do so and Mutheketela relented. The accused employee in this disciplinary hearing was Henry Scheepers (Henry), the younger brother of the applicant. Henry was employed as a Yard Master at the third respondent’s Ermelo Depot, and the charges against him related to a train-on-train collision that took place on 1 September 2016 caused by the gross negligence of Henry, resulting in the third respondent suffering substantial (millions of Rand) damages. The initiator in the disciplinary hearing of Henry was Stanley Khumalo (Khumalo). Khumalo was not aware at the time that Henry was the applicant’s brother.

[7] Henry’s hearing was scheduled to commence on 18 October 2016. On the morning of the hearing, the applicant called Mutheketela, and informed him that the person over whose hearing he was to preside was the applicant’s brother. The applicant requested Mutheketela not be harsh on his brother and not to dismiss him in the disciplinary hearing, and suggested he rather be given a 12 months’ final written warning. In addition, and on 18 October 2016, Mutheketela also received communications from Mzimba,

similarly asking that Henry not be dismissed in the disciplinary hearing and instead be given a 12 months’ final written

warning.

[8] The disciplinary hearing of Henry then took place on 18 October 2016, presided over by Mutheketela, and the testimony presented in the hearing by both parties concluded on that date. The parties were then to present closing argument. Henry asked Mutheketela for a five days’ adjournment so that he could prepare and file written closing argument, and Mutheketela afforded him the opportunity to do so, so it could be filed before the hearing would again convene on 27 October 2016. The written closing argument

as however not filed by Henry within the stipulated deadline.

[9] On 27 October 2016, and because Mutheketela had not received Henry’s written submissions, Mutheketela called the applicant and told him that Henry’s written closing argument was still outstanding. When Mutheketela arrived at the hearing venue on 27 October 2016, he received an e-mail from the applicant himself, enclosing Henry’s written submissions. In these submissions, it is in fact asked that Henry be completely acquitted of the charges against him. It was clear that the applicant had been communicating with Henry and consulted with him, in conducting the preparation of these submissions. This was not permissible, as he was not Henry’s representative in the hearing and Henry was on suspension at the time and contact with him by staff members of the third respondent, which would include the applicant, was not allowed. It also became apparent that the applicant had in fact prepared and filed these submissions using the facilities and laptop of the third respondent. The applicant conceded he did this to benefit Henry.

[10] All of the aforesaid events came to the attention of Khumalo following the completion of the testimony in the hearing on 18 October 2016. When the hearing reconvened on 27 October 2016, Khumalo, requested Mutheketela to recuse himself from the hearing. The grounds for this request were that Mutheketela was contacted beforehand and was sought to be persuaded not to dismiss Henry. Khumalo also expressed his concern that he was not comfortable with what was in essence ex parte discussions between Mutheketela, Henry, and Henry’s representative in the course of the hearing on 18 October 2016, which Khumalo had witnessed. When Mutheketela however refused to recuse himself, Khumalo chose to instead withdraw the charges against Henry, so it could be brought again before another chairperson.

[11] Despite the charges being withdrawn by Khumalo, Mutheketela nonetheless proceeded on 2 November 2016 to dismiss Henry. It seemed that this was done because to protect himself, considering the above events, which the third respondent was now aware of. Henry however referred an unfair dismissal dispute to the first respondent, and he was reinstated by agreement with the third respondent, because he should not have been dismissed without the charges that were withdrawn first being reinstituted and a hearing then held. Once Henry was reinstated, the charges against him were reinstituted before another chairperson, and following a de novo disciplinary hearing, he was then again dismissed. Henry referred another unfair dismissal dispute to the first respondent, however on this occasion the matter proceeded to arbitration and the dismissal of Henry was upheld as being fair on 17 July 2017, by way of an arbitration award issued by arbitrator John Matshika.

[12] Because of his obvious involvement with the initial disciplinary proceedings of Henry in October 2016, the applicant was suspended 31 October 2016. He was ultimately charged with two misconduct charges, being:

‘You are hereby charged with serious misconduct in that you in your capacity as Operations Manager; you grossly neglected your fiduciary

responsibilities thereby abusing your authority in that:

Charge 1

In your capacity as the Operations Manager, around October 2016, you utilised Transnet laptop allocated to you when sending the heads of arguments on behalf of Mr H Scheepers to Mr Mothusi Matheketela who presided over his disciplinary hearing which is the breach of clause 11.2.2 of the Transnet Code of Ethics.

Charge 2

In your capacity as the Operations Manager, around October 2016, you indirectly interfered with the disciplinary hearing of Mr H Scheepers when sending his heads fo arguments through the company laptop whilst you knew he was placed on precautionary suspension, which is the breach of clause 11.3.1 of the Transnet code of Ethics’ (sic)

[13] It is clear that the charges incorporated clauses 11.2.2 and 11.3.1 of the Transnet Code of Ethics (Code of Ethics). Clause 11.2.2 reads: ‘Refraining from using a position of authority and / or facilities provided by Transnet to further personal interests or that of friends and relatives’. In turn, clause 11.3.1 reads: ‘Not allowing personal interests to influence business decisions or tasks and disclosing actual or potential conflicts of interest’.

[14] The disciplinary hearing against the appellant, pursuant to these charges, was convened on 8 March 2017 before Abraham Viljoen (Viljoen), the Acting Senior Manager Customer Care. The applicant attended at the disciplinary hearing duly represented by a representative of his choosing, being Jannie Breytenbach (Breytenbach), a full-time union representative from UNTU, experienced in labour matters. The initiator in the disciplinary hearing was Bheki Tshabalala (Tshabalala). The hearing commenced with Tshabalala making a comprehensive opening address. After Tshabalala’s opening statements were made, and in consultation with Breytenbach, the applicant then elected to plead guilty to the two charges against him.

[15] Considering that the applicant pleaded guilty to the misconduct, the only issue that remained before Viljoen as chairperson was the issue of an appropriate sanction. Both parties were afforded an opportunity to ventilate this issue before Viljoen. The applicant in fact came prepared with written submissions in mitigation of sanction which he presented to Viljoen. The difficulty with these submissions were that the applicant not once at least acknowledged wrongdoing, never showed contrition for what he did, and exhibited no remorse. It was in essence a plea for clemency based on a long list of achievements and attributes of the applicant as an employee and manager. The applicant’s plea for clemency was unfortunately not successful, because Viljoen decided, after considering the submissions by both parties, that the misconduct was very serious, the proper example needed to be set, and the trust relationship had been destroyed. Viljoen recommended the dismissal of the applicant, and the applicant was then dismissed on 8 March 2017.

[16] It must be added that because of his similar involvement in the disciplinary proceedings relating to Henry, Mzimba was also charged with the same charge of abusing his position of authority because he interfered with that disciplinary hearing and sought to persuade Mutheketela not to dismiss Henry. It is true that he also faced two other charges relating to unduly influencing the issuing of letter of promotion to Henry, and breaching the conditions of his suspension. Mzimba was dismissed based on all these charges, and pursued an unfair dismissal dispute to the first respondent. This dispute came before arbitrator Motsoeneng on 6 September 2017, at the first respondent. In an arbitration award dated 18 September 2017, the arbitrator inter alia accepted that Mzimba had indeed interfered in Henry’s hearing and contacted Mutheketela to try and persuade him not to dismiss Henry, which the arbitrator considered a breach of his fiduciary duties and material misconduct. Arbitrator Motsoeneng upheld the dismissal of Mzimba as fair.

[17] As expected, the applicant also pursued an unfair dismissal dispute to the first respondent on 29 March 2017. That dispute ultimately came before arbitrator Levy for arbitration. The parties and the arbitrator agreed that the dispute only be dealt with on paper, as the applicant had pleaded guilty to the charges in the internal disciplinary hearing. Arbitrator Levy then upheld the dismissal of the applicant as being substantively fair. Arbitrator Levy did find that the third respondent had not complied with own procedures, in that the applicant was not given the requisite four days’ prior notice of the disciplinary hearing, however the arbitrator found that the applicant suffered no prejudice as a result. All said, arbitrator Levy dismissed the applicant’s unfair dismissal claim.

[18] Dissatisfied with this award, the applicant brought a review application to the Labour Court under case number JR 1885 / 17. In a judgment handed down on 1 November 2019, the arbitration award by arbitrator Levy was reviewed and set aside, and the matter was remitted back to the first respondent for arbitration de novo before another arbitrator. When the arbitration then again convened at the first respondent, there was firstly an issue with regard to legal representation, which was sought by the applicant, and which was then disposed of by way of a ruling issued on 11 December 2019, allowing the same.

[19] The dispute then ended up before the second respondent for arbitration. It was first set down on 26 February 2020. It appears that the parties did not conduct an arbitration on that date, but instead a pre-arbitration was held, and a pre-arbitration minute was concluded and signed between the parties. In terms of the pre-arbitration minute, it was common cause that the applicant was dismissed on 8 March 2017 subsequent to a disciplinary hearing where he pleaded guilty. It was also common cause that he did send an e-mail to Mutheketela on 27 October 2016 enclosing Henry’s written submissions. It was further agreed that several listed documentary items were true in form and in content, which included the record of the disciplinary proceedings of the applicant.

[20] The actual arbitration took place before the second respondent on 23 March and 15 September 2020. In her award dated 3 December 2020, the second respondent held that the applicant was indeed guilty of the charges proffered against him, that his dismissal was an appropriate and fair sanction, and thus that his dismissal was substantively fair. The second respondent also found that despite several procedural fairness challenges raised by the applicant, his dismissal was procedurally fair. The reasons for these

findings of the second respondent will be dealt with later in this judgment. Suffice it to say, the applicant was not satisfied with this outcome, leading to the review application now before me, which I will now turn to deciding by first setting out the applicable test for review.

The test for review

[21] The test for review is trite. In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others,[2] the Court held that ‘the reasonableness standard should now suffuse s 145 of the LRA’, and that the threshold test for the reasonableness of an award was: ‘… Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?...’[3]. Thus, the award in question is tested against the facts before the arbitrator to ascertain if it meets the requirement of reasonableness.[4] In conducting this test it is always necessary and important for the Court to enquire into and consider the merits of the matter and the entire evidence on record in deciding what is reasonable.[5] In Herholdt v Nedbank Ltd and Another[6] the Court said:

‘… A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to the particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of consequence if their effect is to render the outcome unreasonable.’

[22] In sum, applying the correct review test has a logical chronology. First, it is ascertained whether there is a failure or error on the part of the arbitrator. Second, and only where there is such a failure or error, it must be shown that the outcome arrived at by the arbitrator was unreasonable, based on all the evidence and issues before the arbitrator, even if it may be for different reasons or on different grounds as those referred to by the arbitrator.[7] It would only be if the consideration of the evidence and issues before the arbitrator shows that the outcome arrived at by the

arbitrator cannot be sustained on any grounds, and the irregularity, failure or error concerned is the only basis to sustain the outcome the arbitrator arrived at, that the review application would succeed.[8]

Grounds of review

[23] An applicant for review is required to identify and articulate the grounds for review in the founding affidavit, and the review

application is then decided on the review grounds as pleaded. It is not for this Court to make out a case for review for an applicant. As was said in Northam Platinum Ltd v Fganyago NO and Others[9]:

‘…. The basic principle is that a litigant is required to set out all the material facts on which he or she relies in challenging the reasonableness or otherwise of the commissioner's award in his or her founding affidavit’.

[24] Because the record of the proceedings before the arbitrator is essential to deciding a review application, and this record only comes to hand after the review application has been filed, a review applicant is afforded the opportunity, after the record has been discovered, to supplement the grounds of review in a supplementary affidavit.[10] In this case, the applicant filed a notice in terms of Rule 7A(8)(b) on 3 May 2021 that he stood by his notice of motion and founding

affidavit, and thus elected not to file a supplementary affidavit.

[25] In the founding affidavit, the applicant’s grounds of review mostly boil down to expressing his dissatisfaction with the manner in which the second respondent considered and decided the evidence, which according to the applicant was irregular and unreasonable. The applicant sets out a number of examples of this cause of complaint, all relating to evidence which the second respondent purportedly ignored, issues which according to the second respondent was not disputed by the applicant when that was simply not the case, and an improper consideration of his guilty plea. The applicant also contends that the second respondent failed to have proper regard to the fact that his dismissal was contrary to the third respondent’s own disciplinary code and procedure, and thus procedurally unfair. The applicant refers to a number of clauses in the disciplinary code in this regard.

[26] The applicant finally raised an issue that the third respondent failed to comply with its Delegation of Authority Framework (the Framework), in that as a senior manager, his dismissal could only have been brought about if the General Manager recommended the dismissal, the Labour Relations Manager approved the dismissal, the Group Leadership Manager recommended the dismissal and finally

the Chief Executive of the Operating Division approved the dismissal. According to the applicant, and in the absence of a memorandum

proving all these requisite approvals being presented to the disciplinary hearing chairperson, his dismissal as null and void and

/ or procedurally unfair, and the chairperson thus exceeded his powers by dismissing the applicant.

Analysis

[27] In my view, this matter is simple and straight forward, and can be disposed of based on what was in the end either undisputed or undeniable facts. That being said, I have a concern with the matter in which the applicant has chosen to pursue this matter, both in the arbitration before the second respondent, and before this Court. As stated, it was common cause that the applicant pleaded guilty to the two charges against him. That was even confirmed in the pre-arbitration minute signed by him. It was never raised in the pre-arbitration minute, or contended at any time in the arbitration, that the applicant did not understand the charges against him, did not know what he was pleading guilty to, and somehow improperly or coercively pleaded guilty. In short, he never challenged the guilty plea. That should have been the end of it where it comes to the applicant having committed misconduct, and the only focus should have been whether his dismissal was a fair and competent sanction. Despite addressing the guilty plea in more detail later in this judgment, I must say at this stage that I find it difficult to understand how the applicant can pursue a case that he is not guilty of the misconduct. To dispute he committed misconduct is entirely incompatible with a common cause and unchallenged guilty plea. This kind of flip flopping depending on how the wind may blow certainly does not do the applicant any favours and shows a lack of forthrightness, an issue specifically recognized by the second respondent, as will be addressed below.

[28] The above being said, and in addressing the grounds of review raised by the applicant, it is perhaps appropriate to deal with this by way of referencing the reasoning of the second respondent in coming to the conclusions that she did. In firstly dealing with the issue of the applicant’s guilty plea, the second respondent dealt with his issue on the basis that the applicant contended that he decided to plead guilty in advance as part of a plea bargain, suggesting that this plea bargain was based on the fact that he would not be dismissed. A consideration of the record shows is that this is exactly how the applicant sought to explain his guilty plea in the arbitration. The second respondent decided that this explanation had no substance, for several reasons. Firstly, and according to the second respondent, there was no evidence, other than the applicant’s ipse dixit, of the existence of such a plea bargain, because the very existence of a plea bargain was disputed by the third respondent’s witnesses. Second, the undisputed evidence presented by the third respondent was that where there is a plea bargain, the hearing does not proceed because the parties resolve the matter outside the formal disciplinary processes. And third, it was common cause that the chairperson was never informed of the existence of any plea bargain. The second respondent’s conclusion that there was no plea bargain is thus correct, on the facts, and is unassailable on review. I am also compelled to mention that in the written submissions in mitigation submitted by the applicant to the chairperson, which was prepared beforehand, no mention is made of a plea bargain, which would have been expected if it existed.

[29] This then leaves the question why the applicant pleaded guilty, considering it was common cause that he did. The second respondent held that she was convinced the applicant pleaded guilty because he was aware that he breached the Code of Ethics. In my view, and in so finding, the second respondent cannot be faulted. The second respondent referred to the fact that the guilty plea only

came in after a detailed opening address by the initiator in the disciplinary hearing, which according to her meant that the applicant

clearly understood what he was pleading guilty to, being that he interfered in the disciplinary hearing of Henry in order to try and secure a favourable sanction for Henry. Again, this is a conclusion that cannot be faulted. It must also be considered that the applicant was represented by his chosen union representative throughout the proceedings, and in fact came to the hearing armed with written submissions in mitigation of sanction. In my view, a logical conclusion must follow from all of this. The applicant clearly knew that he had contravened the third respondent’s Code of Ethics by seeking to use his senior management position to influence the outcome of the disciplinary hearing of his brother, Henry, who was facing very serious charges and likely dismissal. He chose to concede the misconduct, plead guilty, and then focus on avoiding dismissal by way of mitigating circumstances. That clearly establishes the existence of the misconduct with which he had been charged.

[30] A proper guilty plea in a disciplinary hearing could serve as proof of the existence of misconduct in itself, provided certain safeguards

are applied by the chairperson before it is accepted. This was recognized in Monare v SA Tourism and Others[11] where the Court applied the criminal law protections applicable to guilty pleas by accused in criminal proceedings, to guilty pleas in disciplinary hearings. In particular, the Court held:[12]

‘In the area of criminal law and procedure, where courts are constantly confronted with guilty pleas to serious criminal charges, special safeguards are provided that ensure that an accused person's utterances of a plea of guilty is in fact a proper plea of guilty and an unequivocal admission of guilt. For example, in terms of s 112(1)(b) of the Criminal Procedure Act 51 of 1977, the presiding officer may have to question the accused person with reference to the alleged facts of the case in order to ascertain

whether he or she admits the allegations in the charge to which he or she has pleaded guilty. Furthermore, courts are required not only to be convinced that an accused admits an allegation in the charge, but that the accused appreciates what that admission entails.

Even though the disciplinary enquiry is not a criminal trial, it has certain features akin to such a trial. In a disciplinary hearing, for example, there is a charge of misconduct to which an employee may either plead guilty or not guilty, which is similar to a plea to a criminal charge. Fairness and logic dictate that the same safeguards that apply in a criminal trial with regard to a plea of guilty should also apply in disciplinary hearings where the employee faces dismissal.’

[31] Further, this Court has made findings to the effect that a guilty plea with an implausible explanation for it, may also in itself competently lead to a conclusion that the misconduct was committed.[13] As succinctly said in Mphaphuli v Ramotshela NO and Others[14]:

‘In my view, when the applicant tendered a plea of guilty at the commencement of the disciplinary enquiry it meant that there was no fact placed in issue and as such there was no further evidence necessary. …’

[32] Because arbitration is a hearing de novo, it will be possible for an employee party to recant a guilty plea at arbitration. But that recanting would not be without consequence.

Such a recanting could lead to an adverse inference to be drawn against the employee when deciding whether the employee committed the misconduct, especially where the reason why the guilty plea was made in the first place is not fully and properly explained, or falsely explained.[15] In short, and in the absence of a proper and acceptable explanation that justifies the recanting of the guilty plea, such guilty plea may still legitimately serve as evidence to prove the misconduct of the employee, even in a de novo arbitration.[16] However, and critically, where an employer relied on the guilty plea to plea to establish the misconduct in the disciplinary hearing, and the employee then recants in the subsequent arbitration proceedings, the arbitrator would be compelled to warn the employer of the consequences of this, and that the employer would thus need to now lead evidence to prove the misconduct of the employee. The failure of an arbitrator to do this may well lead to a reviewable irregularity. In this respect, the Court in Nkomati Joint Venture v Commission for Conciliation, Mediation and Arbitration and Others[17] held as follows, in a case where the employee contended at arbitration that he had been coerced into pleading guilty and recanted his guilty plea:

‘The Labour Court’s conclusion that Smith did not recant in his plea of guilty is mistaken. He obviously did. The appellant proceeded on the basis that at least three of the charges had been established by the evidence at the disciplinary hearing by virtue of Smith having admitted to them by pleading guilty. That is not to say Smith was not at liberty to change his version at the arbitration hearing. But, the fact remains that the appellant was caught off guard at the arbitration hearing as was evident from the stated assumptions of Sefularo in presenting the appellant’s case. …

Smith then recanted on his plea of guilty in his evidence-in-chief. The award provides a clear indication that the commissioner understood that Smith had recanted his plea of guilty to the three charges. Moreover, she redefined the issues. Once that happened, the appellant needed to lead evidence on the merits of the charges. Yet the commissioner found that Smith had placed the merits of the three charges in dispute and that the dismissal was consequently substantively unfair because the appellant had failed during the arbitration proceedings to prove that Smith was guilty of these charges. She arrived at this conclusion without advising the appellant that it needed to consider reopening its case in order to lead evidence on the merits of the three charges.’

[33] In casu, the applicant never recanted his guilty plea on both charges. As stated, this guilty plea was actually recorded as being a common cause fact in the pre-arbitration minute. The applicant understood the charges, considered his position, and elected to plead guilty after hearing the opening address from the initiator in the disciplinary hearing. The evidence presented by the third respondent confirmed that the chairperson took all reasonable steps to ensure that the applicant understood what he was pleading guilty to. The applicant in fact focused on the issue of mitigation seeking to avoid being dismissed for the misconduct, and in that context said in the arbitration the guilty plea was part of a plea bargain. It would be up to the applicant to prove the existence of such a plea bargain, and he failed to do so. This explanation was rightly rejected by the second respondent as being untrue. The applicant also presented no version on the alleged misconduct in the disciplinary hearing. It must follow that the misconduct of the applicant was proven, based on his guilty plea, and the finding of the second respondent to this effect is not open to legitimate criticism.

[34] In sum, and in my view, the reasoning of the second respondent where it came to the guilty plea, as contained in her award, showed that she was alive to the above principles. She accepted that the applicant understood the charges and did not dispute the facts. She considered that the guilty plea was only entered after a comprehensive opening address by the disciplinary enquiry initiator, which must have made it clear to the applicant, who was after all a senior manager, exactly what the misconduct charges were that he was facing. All considered, this constitutes a proper application of the procedural safeguards to ensure a proper guilty plea by the applicant that served to prove the misconduct. I also take a dim view of the fact that the applicant, now for the first time on review, seeks to even contest that he pleaded guilty to the second charge, which conduct is simply not acceptable.[18] The second respondent’s findings that the guilty plea must stand is simply unassailable on review, and in line with the facts and the relevant provisions of law. Accordingly, this guilty plea establishes the existence of the misconduct of the applicant. As held in Windscreen Distributors (Pty) Ltd v Motor Industry Bargaining Council (Dispute Resolution Centre) and Others[19]:

‘The second respondent commenced her reasoning by finding that the third respondent disputed all the charges against her. As stated above, the applicant takes issue with this based on the contention that the third respondent pleaded guilty to the first charge. Now it is true that if the third respondent indeed pleaded guilty to this charge, the second respondent would have to accept that the misconduct in this regard was not disputed by the third respondent and the only issue that would need determination was the appropriate sanction for such misconduct. It would have been a material irregularity for the second respondent to have simply ignored and negated such a guilty plea. …’

[35] In the arbitration, the applicant challenged the fairness of his dismissal by contending that he was not charged with interfering in the disciplinary proceedings against Henry, in order to secure a favourable outcome for him. One must accept that the charges were inelegantly worded, but after the opening address by the initiator, the applicant could have been left in no doubt that the

charges involved this very issue. As stated, it is only then that the applicant pleaded guilty. The second respondent considered this defence proffered by the applicant, and accepted that considering what has been summarized above, he clearly knew he was being charged with such interference, which was a breach of his fiduciary duties. The second respondent also considered that by entering his guilty plea in this context, the applicant did not afford the applicant the opportunity to lead detailed evidence about his misconduct, and he should be held to the guilty plea. I am satisfied that these findings resort well within the bands of what may be considered to be a reasonable outcome, and are unassailable on review.

[36] The second respondent nonetheless considered the merits of the misconduct charges. She accepted the evidence of Mutheketela that the applicant called him on the day of the hearing of Henry to ask for a favourable outcome. In my view, it could also be considered that it must surely be more than coincidence that the applicant was supported in his quest by Mzimba, who made the same approach to Mutheketela. It is further either undisputed or undeniable that the applicant at the very least assisted Henry in drafting his written submissions in the hearing, and then submitted those submissions under his own e-mail to Mutheketela, using the third respondent’s facilities. This all happened whilst Henry was on suspension and was not supposed to be contacted or assisted by the applicant, who was not even Henry’s representative. The second respondent’s conclusion was as follows: ‘… I therefore do not believe by doing that he was acting in the best interest of the respondent, considering he was holding a senior position and his brother was charged with a serious offence …’. In my view, there simply cannot be a legitimate quarrel with this conclusion, which is certainly a reasonable one, based on the facts referred to.

[37] The second respondent also came to further conclusions on the facts, which the applicant is simply not able to answer. These were that he should have distanced himself from the disciplinary proceedings, and when he was called by Mutheketela regarding the outstanding written submissions by Henry, he should have made it clear that he could not be involved in the case and could not assist. These conclusions are not only reasonable, but should be common sense to someone in the position of the applicant. This, in my view, certainly also served to establish the existence of the misconduct committed by the applicant.

[38] Insofar as the testimony by the third respondent’s three witnesses contradicted the evidence / version by the applicant in the arbitration, the second respondent made credibility findings. She held that the applicant was not credible, he was evasive, and he changed his answers under cross examination. She compared this evidence to the evidence of the third respondent’s witnesses, whom she believed were consistent and unswayed under cross examination. As a general proposition, this Court on review would be disinclined to interfere with these kinds of credibility findings, unless such credibility findings were obviously and materially out of kilter with or irreconcilable with the evidence as it appears from the record.[20] I have considered the record, and am unable to conclude that the second respondent, in preferring the evidence of the third respondent’s witnesses, committed any kind of reviewable irregularity. It is the second respondent’s job to decide which evidence to prefer, and the applicant has not made out a case that the second respondent did not properly and reasonably carry out this job. This constitutes a significant obstacle to the success of the applicant’s review application, once the testimony of the third respondent’s witnesses are rightly preferred.

[39] Accordingly, the second respondent’s finding that the applicant committed the misconduct with which he had been charged must be upheld on review. This only leaves the issue of an appropriate sanction. According to the second respondent, the misconduct was very serious and constituted a breach of the applicant’s fiduciary responsibilities. She also accepted that the trust relationship had been ‘breached’, and stated that: ‘… I am therefore persuaded by the respondent’s argument that the applicant’s conduct constituted a conflict of interest,

violation of the independence of the disciplinary process, breach of the Transnet Code of Ethics and breach of the ethical culture line management is to instil …’. She also had regard to the fact that Mzimba, who also sought to influence Mutheketela in the disciplinary hearing, was dismissed by the applicant for the exact same misconduct, and that Mzimba’s dismissal was upheld as being fair in arbitration at the first respondent. And finally, the second respondent held that it would be difficult for the third respondent to instil discipline in the workplace if senior managers committing these kinds of offenses were pardoned. For all these reasons, the second respondent concluded that the sanction of dismissal was appropriate, and I simply cannot find any basis to upset this reasoning and the conclusion the second respondent reached, which in my view constitutes a reasonable outcome based on what was before her.

[40] The applicant transgressed in a manner that can be commonly described as constituting a conflict of interest or breach of his fiduciary duties towards the third respondent as his employer. These concepts are described in National Union of Metalworkers of SA on Behalf of Nganezi and Others v Dunlop Mixing & Technical Services (Pty) Ltd and Others (Casual Workers Advice Office as Amicus Curiae)[21] as follows:

‘Fiduciary duties are duties that apply to persons who have access to, or power in relation to, the affairs of a beneficiary. These duties must be exercised for the sole purpose of promoting the beneficiary’s interests. The two core fiduciary duties are the no-conflict duty to avoid all potential conflict of interest situations and the no-profit duty which prohibits fiduciaries from obtaining any unauthorised profit for themselves that has not been properly disclosed or consented to by the beneficiary …’

Applying these principles to the employment relationship, the Court then concluded:[22]

‘So despite the possibly confusing references to trust, confidence, loyalty and good faith in our case law it is clear that where contracting parties ‘are bound to promote the interest entrusted to their keeping ... [t]hey cannot take any advantage to themselves out of the business for which they have been appointed, nor derive any benefit therefrom, beyond such commission and charges as the law allows in the particular instance’. This essentially amounts to the duties that Idensohn identifies as distinctive of fiduciary duties: (a) that fiduciary duties require a unilateral obligation to act in the beneficiaries’ interest; (b) the primary fiduciary obligations are only two — no profit and no conflict of interest; and (c) fiduciary remedies are strict, with no intent required …’

[41] The Court in Phillips v Fieldstone Africa (Pty) Ltd[23] stated that ‘… there is no magic in the term “fiduciary duty”. The existence of such a duty and its nature and extent are questions of fact to be adduced from a thorough consideration of the substance of the relationship and any relevant circumstances which affect the operation of that relationship …’. The Court then elaborated on this duty in the following manner, as relevant to the case in casu:[24]

‘The rule is a strict one which allows little room for exceptions … It extends not only to actual conflicts of interest but

also to those which are a real sensible possibility … The defences open to a fiduciary who breaches his trust are very limited:

only the free consent of the principal after full disclosure will suffice … Because the fiduciary who acquires for himself is deemed to have acquired for the trust, … once proof of a breach of a fiduciary duty is adduced it is of no relevance that (1) the trust has suffered no loss or damage … the fiduciary acted honestly and reasonably …’

[42] However, the position can hardly be better described than by referring to the following dictum in Sappi Novoboard (Pty) Ltd v Bolleurs[25] where it was held as follows:

‘It is an implied term of the contract of employment that the employee will act with good faith towards his employer and that he will serve his employer honestly and faithfully: … The duty which an employee owes his employer is a fiduciary one 'which involves an obligation not to work against his master's interests' … If an employee does 'anything incompatible with the due or faithful discharge of his duty to his master, the latter has a right to dismiss him …’

[43] It is thus in my view clear that the misconduct of the applicant in this case is of the magnitude and seriousness, especially considering his position as senior manager, to justify his dismissal. This view can be illustrated by reference to some examples. In Head of Department: Sport, Arts, Recreation and Culture, Free State v National Education Health and Allied Workers Union on Behalf of Masekoa and Others[26] the Court considered the provisions of the SMS Handbook in the Public Service which provided that senior managers ‘must exhibit the highest ethical standards in carrying out their duties’, that senior managers have the duty to alert their employer of any actual or potential conflict of interest, be it financial or otherwise, and no employee is to engage in any action or transaction that is in conflict with or infringes upon the execution of his or her official duties.[27] In that case, the employee had been charged with securing an accommodation contract with a business she had an interest in, which

the employer contended contravened the above summarized provisions of the SMS handbook.[28] Even though there was no specific provision in the SMS handbook prohibiting the employee from securing such a contract for her

private business, the Court nonetheless accepted this was a material conflict of interest, and held that ‘… Employees have a duty of good faith towards their employers. They are required to advance the employer’s interest and not their own in situations where their interests and those of the employer may clash …’.[29] The Court accepted that: ‘The transgression was serious enough to justify Ms Masekoa’s dismissal. She was in a position of trust and breached that trust’.[30] The comparisons to the case in casu are in my view clear, in that the third respondent’s Code of Ethics contained similar provisions, and what the applicant did undoubtedly violated those provisions in a similar manner.

[44] In Coega Development Corporation (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[31] the issue concerned an alleged conflict of interest on the part of an employee, in that the employee submitted the CV of prospective employees to the employer’s interview panel for appointment, where the employee had a personal relationship with those prospective employees. The employee then also participated in the interview process to ensure the appointment of those prospective employees. In this context, the Court held:[32]

‘I agree with Mr Gauntlett that, given the seniority of her position and the role that she played on the selection panel, Ms Fort was required to be ice cold, and that it amounts to serious misconduct for someone in her position to treat a candidate with any degree of favouritism, without making full disclosure to the selection panel. Put differently, it amounts to serious misconduct to become involved in the recruitment process of people to whom you feel favourable, in circumstances where you do not make full disclosure. It goes without saying that such conduct is to be deprecated, particularly where public funds are involved.

Where a senior manager is entrusted with the appointment of personnel in a largely state funded entity and breaches that trust in

the circumstances which occurred herein (which included an element of deception), the sanction of dismissal is more than warranted. Indeed, the commissioner herself recognised in her award that a finding of guilty on the charges brought against Ms Fort,

which included a charge of a conflict of interest, 'would clearly result in a sanction of dismissal'. To put the issue beyond doubt, not only was Ms Fort guilty of serious

misconduct, but she went on to present a disingenuous defence at both her disciplinary enquiry and at the arbitration, and showed no remorse.’

[45] Again, the comparisons between the case in casu and the judgment in Coega supra are undeniable. Even though that case was about interference by an employee where it came to the appointment of employees, it is no different to interference where it comes to the disciplining and possible dismissal of an employee. The applicant chose to interfere

in the disciplinary proceedings against Henry, who faced possible dismissal for serious misconduct, and who was the applicant’s

brother. The applicant did this clearly to benefit Henry by avoiding that he be dismissed, and this worked against the interests of the third respondent as his employer. As a senior manager, and using the words in Coega, he was required to be ‘ice cold’. This conduct justified dismissal, especially in the absence of any true remorse shown by the applicant (which will be addressed below).

[46] A final apposite example is the judgment in Impala Platinum Ltd v Jansen and Others.[33] That case concerned conduct by an employee in promoting the business of his wife as a supplier to the employer. The Court had the

following to say about this conduct:[34]

‘The commissioner rightly found that Jansen’s conduct went to the root of the employment relationship deserving of the severest sanction. This cannot be faulted. In fact, it would be unfair to expect the appellant to retain Jansen in its employ where Jansen had not only displayed gross misconduct in failing to comply with statutory regulations but also contravened the duty to act in good faith by promoting his wife’s business to appellant’s service providers thereby compromising fairness and honesty within the appellant’s business relationships. In the circumstances, there was no need to lead any evidence of a breakdown in the relationship, as it was obviously the case. …’

[47] In sum, and the above considered, it must be said that the applicant occupied a senior position in the third respondent, owed the third respondent a fiduciary duty to serve the third respondent in a manner that could not in any way be seen to constitute a conflict between his own interests and those of the third respondent, and not to commit any conduct which works against the interest of the third respondent.[35] As held in Malaka v General Public Service Sectoral Bargaining Council and Others[36]:

‘In an employment relationship, it is an implied term of the contract of employment that the employee will act in good faith towards, and serve, her employer with honesty. …’

[48] Therefore, and in the end, there can be little doubt that the applicant’s misconduct was very serious. He acted in contravention of his duty of good faith and trust towards the third respondent and was, all told, acting in a manner that could only be said to constitute a conflict of interest and a violation of his fiduciary duties towards the third respondent as his employer. What was actually required of the applicant is neatly articulated in ABSA Bank Ltd v Naidu[37] as follows: ‘... it followed that she owed a fiduciary responsibility vis-à-vis the appellant towards ensuring that, at all times, she acted and performed her duties in a manner that was in the best interests of both the appellant and its clients. …’.

[49] This brings me to the issue of remorse. Ordinarily, the guilty plea of the applicant in the disciplinary hearing could legitimately have been seen to constitute an act of remorse, which would be an important factor mitigating against dismissal, considering the applicant’s long service (more than 16 years). But this possibility was completely undone by what the applicant then did when he pursued the matter to arbitration. One would have expected, if he unconditionally acknowledged wrongdoing and showed genuine contrition, which is what is expected to be found when true remorse exists, that he would follow the same approach in arbitration and embrace and express genuine contrition for his wrongdoing. But he did nothing of the sort. In Naidu supra[38] the Court expressed the following instructive views:

‘Obviously, the fact of a guilty plea per se or mere verbal expression of remorse is not necessarily a demonstration of genuine contrition. It could be nothing more than shedding crocodile tears. Therefore, the crucial question is whether it could be said that Ms Naidu's utterances empirically and objectively translated into real and genuine remorse. In S v Matyityi, the Supreme Court of Appeal remarked as follows on this issue:

'There is, moreover, a chasm between regret and remorse. Many accused persons might well regret their conduct, but that does not without more translate to genuine remorse. Remorse is a gnawing pain of conscience for the plight of another. Thus genuine contrition can only come from an appreciation and acknowledgement of the extent of one's error. Whether the offender is sincerely remorseful, and not simply feeling sorry for himself or herself at having been caught, is a factual question. It is to the surrounding actions of the accused, rather than what he says in court, that one should rather look. In order for the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her confidence. Until and unless that happens, the genuineness of the contrition alleged to exist cannot be determined. After all, before a court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of, inter alia: what motivated the accused to commit the deed; what has since provoked his or her change of heart; and whether he or she does indeed have a true appreciation of the consequences of those actions.' …’

[50] To describe it as simply as possible, it is In my view that for the applicant to show genuine remorse, he needed to come to the

arbitration, admit his misconduct, acknowledge that this constituted wrongdoing on his part, pleaded for forgiveness, and then only present a case relating to all the individual factors that an arbitrator is required to consider when deciding whether the conduct of an employer in deciding to impose the sanction of dismissal for that misconduct could be considered to be fair or unfair.[39] But the applicant did none of that. Instead, he disputed in the arbitration that he did anything wrong despite not even disavowing

his guilty plea which still stood, falsely relied on a non-existent plea bargain, and even sought to blame the third respondent and other employees for what happened. Not once did he accept any kind of responsibility, and even in the disciplinary hearing, he only pleaded guilty when he was confronted with the undeniable case of the third respondent as presented in the opening address of the initiator. A proper consideration of the mitigatory submissions made by the applicant in the disciplinary hearing shows that it is entirely bare of any acknowledgment of wrongdoing and expression of remorse. The following dictum in SGB Cape Octorex (Pty) Ltd v Metal and Engineering Industries Bargaining Council and Others[40] is instructive:

‘…when he was confronted by Mr Desemele, the employee denied that he had used any drugs. His admission of guilt only came when the test results were positive. Where a plea of guilty in the face of an open and shut case is tendered, it becomes a neutral factor. He had no choice but to plead guilty …’

[51] So therefore, and in the end, the applicant in reality exhibited no contrition or any acknowledgment of possible wrongdoing, which is not true remorse, even where the applicant pleaded guilty. Without true remorse, there can be no rehabilitation or any possible restoration of the trust relationship.[41] The applicant, as held in Bogoshi v Commission for Conciliation, Mediation and Arbitration and Others[42], ‘… exhibits a clear lack of understanding of the adverse consequences of her conduct and how this impacted on her trustworthiness as a senior manager in the third respondent …’. In my view, the following dictum in Burton and Others v Member of Executive Council, Department of Health, Eastern Cape Province and Others[43] is equally applicable in casu:

‘While the long-service and disciplinary record of the appellants were relevant considerations, the misconduct committed, and the harm which resulted from it, was of a serious nature and underpinned by dishonesty on the part of senior public sector employees.

In Naidu this court recognised that ‘[g]enerally, a sanction of dismissal is justifiable and, indeed, warranted where the dishonesty involved is of a gross nature’. In De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation & Arbitration & others it was recognised that ‘[d]ismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise …’

[52] In summary, none of the applicant’s review grounds relating to the alleged substantive unfairness of his dismissal have merit. The arbitration award of the second respondent resorts well within the bands of what may be considered to be a reasonable outcome, and is unassailable on review. The applicant clearly committed the misconduct with which he was charged, and he earned his dismissal for that misconduct. The finding of the second respondent that the applicant’s dismissal was substantively fair is therefore upheld on review.

[53] This now brings me to the issue of procedural fairness. In this regard, the applicant has raised in essence three grounds relating to the issue of procedural unfairness. The first is that the third respondent did not comply with the four days’ prior notice requirement of the disciplinary hearing against him. The second is that the third respondent did not comply with the disciplinary code where it came to the issue of considering the sanction of dismissal. The third is the issue of non-compliance with the Framework of the third respondent.

[54] In my view, and considering what actually happened in casu, none of these procedural complaints have any substance, for the reasons to follow. The point of departure in deciding such complaints

was comprehensive dealt with in the judgment of Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation, Mediation and Arbitration and Others[44]. The Court considered the provisions of the LRA, as well as Schedule 8 of that Act, and held as follows:[45]

‘… the conception of procedural fairness incorporated into the LRA is one that requires an investigation into any alleged misconduct by the employer, an opportunity by any employee against whom any allegation of misconduct is made, to respond after a reasonable period with the assistance of a representative, a decision by the employer, and notice of that decision.

This approach represents a significant and fundamental departure from what might be termed the 'criminal justice' model that was developed by the Industrial Court and applied under the unfair labour practice jurisdiction that evolved under the 1956 Labour Relations Act. That model likened a workplace disciplinary enquiry to a criminal trial, and developed rules and procedures, including rules relating to bias and any apprehension of bias, that were appropriate in that context.

The rules relating to procedural fairness introduced in 1995 do not replicate the criminal justice model of procedural fairness. They recognize that for workers, true justice lies in a right to an expeditious and independent review of the employer's decision to dismiss, with reinstatement as the primary remedy when the substance of employer decisions is found wanting. For employers, this right of resort to expeditious and independent arbitration was intended not only to promote rational decision making about workplace discipline, it was also an acknowledgment that the elaborate procedural requirements that had been developed prior to the new Act were inefficient and inappropriate, and that if a dismissal for misconduct was disputed, arbitration was the primary forum for determination of the dispute by the application of a more formal process.

The balance struck by the LRA thus recognizes not only that managers are not experienced judicial officers, but also that workplace

efficiencies should not be unduly impeded by onerous procedural requirements. It also recognizes that to require onerous workplace

disciplinary procedures is inconsistent with a right to expeditious arbitration on merits. … The continued application of the criminal justice model of workplace procedure therefore results in a duplication of process, with no tangible benefit to either employer or employee. ….’

Respectfully, I cannot agree more.[46] What happened in casu, where it concerns the disciplinary proceedings against the applicant, is overall considered in full conformity with the above objectives under the LRA.

[55] In addition, it is also always about whether the employee has suffered prejudice as a result of a procedural failure, even if it can be said that the employer did not comply with its own disciplinary code and procedure. In this regard, the employee must allege such prejudice, and ultimately it has to be found that such prejudice exists, in order for disciplinary proceedings to be held to be procedurally unfair.[47] Instructive, in my view, is the following dictum in Delport and others v S[48]:

‘The question in regard to irregularities is always whether they have resulted in a failure of justice. Bearing in mind that

irregularities do not in and of themselves lead to a failure of justice, there is little likelihood of this Court, or any other,

holding that they did in these circumstances.’

[56] So where does the above legal position leave the applicant? The simple answer is with a purported case of procedural unfairness that has no merit. The reasons for this are that the applicant came to the disciplinary hearing, with an experienced trade union representative in tow, and never objected where it came to any short notice of the disciplinary, and certainly never objected to any authority of the chairperson / initiator to conduct the disciplinary hearing. The applicant waited for the opening address by the initiator to be completed, and then decided to plead guilty. He did so in consultation with his representative. Also, and considering the applicant came prepared with written submissions in support of a case relating to mitigation of sanction, he must have had it in mind before the hearing even convened as to what he wanted to do, which did not include objecting to the hearing. The fact of the matter is that he understood the allegations against him, and had the full and proper opportunity to participate in the disciplinary hearing and present his case if he so wished. He participated by choosing to plead guilty and focus only on mitigation. He chose not to present a case on the merits. In the circumstances, it simply cannot be said that he suffered any prejudice, even should there be some procedural failures. That must be the end of it where it comes to these alleged grounds of procedural unfairness.

[57] The second respondent, considering the reasoning as contained in her award relating to procedural fairness, was in my view fully aware of all I have summarized above. She reasoned that none of the applicant’s procedural complaints were ever raised in the disciplinary hearing before Viljoen as chairperson. She accepted the testimony of Viljoen that had he been informed of a complaint about short notice, he would have postponed the disciplinary hearing. She also reasoned that the applicant could not show any prejudice that he may have suffered, especially considering that he pleaded guilty.[49] The second respondent, in my view, reasonably and rationally determined the applicant’s procedural complaints on this basis.

In Mashaba v University of Johannesburg and Others[50], the Court, in considering a promotion process at an employer, dealt with procedural objections by the employee made after the fact and after having participated in that process, that the appointment process was irregular, and had the following to say:

‘A promotion is a process commencing with the advertisement of the post followed by shortlisting and interviews. The interviewing panel makes recommendations to the employer to appoint a candidate they found to be suitable. In my view, it is highly improper and unfair for a candidate to let the process go to its finality without challenging it and only afterwards argue that the process was irregular …’ (emphasis added)

[58] On the substance of the issue of the delegation of authority to discipline and dismiss the applicant under the Framework, the second respondent considered the testimony of Tshabalala, who was the initiator in the disciplinary hearing of the applicant, and the Senior Manager Employee Relations at the third respondent. Tshabalala testified that he had obtained the authority to seek the sanction of dismissal from the Head of Labour Relations, Vuyo Bahlekazi, before the disciplinary hearing even started, which is in line with the Framework. According to Tshabalala, there was nothing in the Framework that requires proof of delegation of authority in the case of the discipline of employees to be presented to the chairperson, or to be in writing. When the applicant then pleaded guilty, and as testified to by Tshabalala, he made the necessary further enquiries as contemplated by the Framework. He confirmed with the Executive Manager concerned, Tiyane Hlabangwane, that he would be seeking dismissal of the applicant. He also confirmed his intentions following the guilty plea with Vuyo Bahlekazi again. None of this testimony was disputed by the applicant or could be gainsaid by him. Instead, his complaint was that the authority was required to have been given in writing, and had to be presented to the chairperson of the disciplinary hearing. Considering all this evidence, the second respondent concluded that the aforesaid

contentions by the applicant had no substance, and found that even in the absence of a written document, the uncontested evidence was that the necessary authority under the Framework existed. In am satisfied that the second respondent correctly decided this issue, and there simply exists no basis to upset her findings on review.

[59] In the interest of being thorough, I did consider the Framework itself, which was part of the undisputed evidence in this case. The Framework constitutes an actual delegation of authority in itself to various management functionaries, by way of implementing an approval structure. There is specific provision for an approval structure in clause 5.7 of the Framework that applies to the cases of the dismissal of employees. Under the heading of ‘Dismissal of Employees’, it is prescribed that any dismissal must be preceded by a fair process, and that authority to seek a dismissal must be obtained

prior to the hearing. It is not prescribed that this authority must be in writing. In the case of the authority to dismiss senior

managers (levels D – F), it requires final approval from the General Manager: Labour Relations. That person would be Vuyo

Bahlekazi, and on the undisputed evidence, he did give approval. The applicant’s attempted reliance on the provisions of the Framework to establish a case of procedural unfairness because it is not in writing nor presented in the disciplinary hearing is thus ill-founded, and without substance, in any event.

[60] The applicant also raised the issue that Viljoen was on the same level as he was, being level E, and was not competent to preside over his disciplinary hearing as the chairperson has to be at one level higher. The evidence does not support his contention. It

was undisputed that at the time of presiding over the disciplinary hearing, Viljoen was an acting senior manager in a management

position at Level D, which is one level higher. Once again, it must be reiterated, as set out above, that this complaint was never raised in the disciplinary hearing before Viljoen. In any event, the second respondent also had regard to the evidence by Tshabalala that there is no requirement in the Disciplinary Code or in the Framework, that prescribed that Viljoen had to be at one level higher than the applicant, which evidence could not be contradicted by the applicant. According to the second respondent, there was no substance in this ground of alleged procedural unfairness, and I have little hesitation in accepting the reasonableness of this conclusion.

[61] This only leaves the issue of the alleged non-compliance with the Disciplinary Code where it comes to the issue of the sanction imposed on the applicant. In his founding affidavit, the applicant quotes provisions in the Disciplinary Code that he contends must be considered by the chairperson when deciding on the issue of an appropriate sanction. It is alleged Viljoen as chairperson did not comply with these provisions. Nothing can be further from the truth. Viljoen clearly considered all the factors he was required to consider in deciding that the dismissal of the applicant was appropriate, and the Disciplinary Code in any event vests him with the discretion to decide this. Further, this is in any event an issue of substantive fairness which the second respondent must decide for herself, which she did. Where it comes to the requirements of procedural fairness in this regard, all that was necessary was for the applicant to have an opportunity to properly participate in the decision of arriving at a fair sanction, by making submissions and being heard on this.[51] In casu, this clearly happened, and the applicant came to the hearing prepared for this. The applicant made out no case that he was deprived of this opportunity. There can thus be no procedural unfairness in this regard.

Conclusion

[62] Therefore, based on all the reasons set out above, I conclude that the second respondent’s arbitration award is simply not reviewable. I am satisfied that the second respondent’s findings of facts are properly supported by the evidence before her,

in particular the common cause facts and uncontested documentary evidence. Her views concerning the applicant and his misconduct are justified, and her conclusion that dismissal was a fair sanction, in the circumstances, is unassailable. Her rejection of all the applicant’s complaints of procedural unfairness is similarly unassailable. Insofar as the issue of the outcome arrived at by the third respondent is considered on the basis of it being reasonable or unreasonable, there is in my view no doubt that it would comfortably resort within the bands of reasonableness as required, in order to be sustainable on review. The applicant’s review application thus falls to be dismissed.

Costs

[63] This then leaves only the issue of costs. In terms of the provisions of section 162(1) of the LRA, I have a wide discretion where it comes to the issue of costs. I refer to what the Court said with regard to costs in employment disputes in Union for Police Security and Corrections Organisation v SA Custodial Management (Pty) Ltd and Others[52] which is that when making a costs order in a labour matter, a Judge is required to consider that costs are not ordinarily awarded, the principle of fairness must be considered, and due regard must be had to the conduct of the parties. In casu, I do not believe any of the parties acted unreasonably in bringing this application, or in opposing the same. Whilst the applicant may be open to some criticism for some of the review grounds that he raised, I do not believe this is sufficient to visit him with a costs award. I finally consider that the applicant lost his job and is an individual involved in litigation with a large entity. It is my view that the ordinary principle as set out above that costs do not follow the result should carry the day. Therefore, I am satisfied in this case that no order as to costs is appropriate and fair.

[64] In the premises, the following order is made:

Order

1. The applicant’s review application is dismissed.

2. There is no order as to costs.

S. Snyman

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr G C Phakedi of Phakedi Attorneys Inc For the Third Respondent: Mashaba Attorneys Inc.

[1] Act 66 of 1995 (as amended).

[2] (2007) 28 ILJ 2405 (CC).

[3] Id at para 110. See also CUSA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC) at para 134; Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC) at para 96.

[4] See Duncanmec (Pty) Ltd v Gaylard NO and Others (2018) 39 ILJ 2633 (CC) at paras 43.

[5] Id at para 41.

[6] (2013) 34 ILJ 2795 (SCA) at para 25. See also Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 943 (LAC) at para 14; Monare v SA Tourism and Others (2016) 37 ILJ 394 (LAC) at para 59; Quest Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp Fulfilment Services (Pty) Ltd) v Legobate (2015) 36 ILJ 968 (LAC) at paras 15 – 17; National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (2015) 36 ILJ 2038 (LAC) at para 16.

[7] Fidelity Cash Management Service (supra) at para 102.

[8] See Campbell Scientific Africa (Pty) Ltd v Simmers and Others (2016) 37 ILJ 116 (LAC) at para 32; Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others (2015) 36 ILJ 1453 (LAC) at para 12.

[9] (2010) 31 ILJ 713 (LC) at para 27.

[10] See Rule 7A(8) of the Labour Court Rules; Brodie v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 608 (LC) at para 33; Sonqoba Security Services MP (Pty) Ltd v Motor Transport Workers Union (2011) 32 ILJ 730 (LC) at para 9; De Beer v Minister of Safety and Security and Another (2011) 32 ILJ 2506 (LC) at para 27.

[11] (2016) 37 ILJ 394 (LAC).

[12] Id at paras 72 – 73.

[13] See National Union of Metalworkers of SA and Others v Atlantis Forge (Pty) Ltd (2005) 26 ILJ 1984 (LC) at para 101; Delta Motor Corporation (Pty) Ltd v Finnemore NO and Others (1999) 4 LLD 96 (LC).

[14] (2020) 41 ILJ 242 (LC) at para 36.

[15] Compare Intellectual Democratic Workers Union obo Linda and others v Super Group and others [2017] 10 BLLR 969 (LAC) at para 25.

[16] See Ratsibvumo and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR239/16) [2017] ZALCJHB 397 (27 October 2017) at para 6.

[17] (2019) 40 ILJ 819 (LAC) at paras 19 and 21.

[18] the applicant is not permitted to raise a new case on review never placed before the second respondent as arbitrator to decide – see Albany Bakeries Ltd v Van Wyk and Others (2005) 26 ILJ 2142 (LAC) at para 25; Brodie v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 608 (LC) at para 33.

[19] (JR1767/2012) [2014] ZALCJHB 114 (4 March 2014) at para 41. See also SA Fibre Yarn Rugs Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2005) 26 ILJ 921 (LC) at para 12; SA Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others (2010) 31 ILJ 1238 (LC) at para 20.

[20] See Standerton Mills (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2012) 33 ILJ 485 (LC) at para 18; National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 945 (LC) at para 31; Truworths Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2009) 30 ILJ 677 (LC) at para 25; Moodley v Illovo Gledhow and Others (2004) 25 ILJ 1462 (LC) at para 22; Kgoadi v Commission for Conciliation, Mediation and Arbitration and Others [2014] JOL 31908 (LC) at paras 51 – 52.

[21] (2019) 40 ILJ 1957 (CC) at para 55.

[22] Id at para 61.

[23] (2004) 25 ILJ 1005 (SCA) at para 27.

[24] Id at para 31.

[25] (1998) 19 ILJ 784 (LAC) at para 7. This dictum has been consistently applied in the LAC and in this Court – see G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero NO and Others (2017) 38 ILJ 881 (LAC) at para 26; Unilever SA (Pty) Ltd v Mbekwa N.O (DA 15/2012) [2015] ZALAC 66 (13 February 2015) at para 27; National Union of Mineworkers and Another v Commission for Conciliation, Mediation & Arbitration and Others (2013) 34 ILJ 945 (LC) at para 45; Fipaza v Eskom Holdings Ltd (2010) 31 ILJ 2903 (LC) at para 46; Bogoshi v Commission for Conciliation, Mediation and Arbitration and Others (JR 1106/16) [2021] ZALCJHB 186 (2 August 2021) at para 109.

[26] (2023) 44 ILJ 147 (LAC)

[27] See para 6 of the judgment.

[28] See para 25 of the judgment.

[29] Id at para 27.

[30] Id at para 35

[31] (2016) 37 ILJ 923 (LC).

[32] Id at paras 93 - 94.

[33] (2017) 38 ILJ 896 (LAC)

[34] Id at para 20.

[35] See ABSA Bank Ltd v Naidu (2015) 36 ILJ 602 (LAC) at para 54; Singh v eThekwini Municipality (Treasury Department) and Others (2015) 36 ILJ 769 (LC) at paras 41 – 42; Dipaleseng Municipality v SA Local Government Bargaining Council and Others (2008) 29 ILJ 2933 (LC) at para 45.

[36] (2020) 41 ILJ 2783 (LAC) at para 33.

[37] (2015) 36 ILJ 602 (LAC) at para 54.

[38] Id at para 46.

[39] These are, in sum, the following: (1) importance of the rule that had been breached (seriousness of the misconduct); (2) the reason the employer imposed the sanction of dismissal; (3) The explanation presented by the employee for the misconduct; (3) the harm caused by the employee's conduct; (4) whether additional training and instruction may result in the employee not repeating the misconduct; (5) the service record of the employee; (6) the breakdown of the trust relationship; (7) the existence of dishonesty; (8) the possibility of progressive discipline; (9) the

existence of remorse; (10) the job function of the employee; and (11) the employer’s disciplinary code and procedure –

see Sidumo (supra) at para 78; National Commissioner of the SA Police Service v Myers and Others (2012) 33 ILJ 1417 (LAC) at para 82; Bridgestone SA (Pty) Ltd v National Union of Metalworkers of SA and Others (2016) 37 ILJ 2277 (LAC) at paras 17 – 18; Woolworths (Pty) Ltd v SA Commercial Catering and Allied Workers Union and Others (2016) 37 ILJ 2831 (LAC) at para 14; Msunduzi Municipality v Hoskins (2017) 38 ILJ 582 (LAC) at para 30; Eskom Holdings Ltd v Fipaza and Others (2013) 34 ILJ 549 (LAC) at para 54; Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council and Others (2011) 32 ILJ 1057 (LAC) at para 34; Mutual Construction Co Tvl (Pty) Ltd v Ntombela NO and Others (2010) 31 ILJ 901 (LAC) at paras 37 – 38.

[40] (2023) 44 ILJ 179 (LAC) at para 10.

[41] In De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2000) 21 ILJ 1051 (LAC) at para 25 the Court held: ‘This brings me to remorse. It would in my view be difficult for an employer to re employ an employee who has shown no remorse.

Acknowledgment of wrongdoing is the first step towards rehabilitation. In the absence of a recommitment to the employer's workplace values, an employee cannot hope to re establish the trust which he himself has broken. Where, as in this case, an employee, over and above having committed an act of dishonesty, falsely denies having done so, an employer would, particularly where a high degree of trust is reposed in an employee, be legitimately entitled to say to itself that the risk of continuing to employ the offender is unacceptably great. …’.

[42] (JR 1106/16) [2021] ZALCJHB 186 (2 August 2021) 110

[43] (2022) 43 ILJ 2284 (LAC) at para 75. See also Woolworths (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2022) 43 ILJ 839 (LAC) at para 13.

[44] (2006) 27 ILJ 1644 (LC).

[45] Id at 1651-2.

[46] See also Kelly Group Ltd v Khanyile and Others (2013) 34 ILJ 2035 (LC) at para 22.

[47] In Bogoshi (supra) at para 85, the Court held: ‘… any provisions in an employer’s disciplinary code and procedure containing detailed procedural prescripts in conducting a disciplinary process does not always result in a finding of procedural unfairness simply because those procedures have been

contravened. I am not saying that the employer should simply ignore those provisions. It is of course true that where an employer

defines its own process and sets its own procedural requirements, it should be expected to adhere to the same. An employer that does not comply with its own disciplinary code and procedure would thus always run the risk that such failure could be found to be procedurally unfair. However, this obligation on an employer must always be tempered by considerations of workplace efficiency …’.

[48] [2015] 1 All SA 286 (SCA) at para 35.

[49] Compare Bogoshi (supra) at para 87.

[50] (2023) 44 ILJ 156 (LAC) at para 18.

[51] See SA Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 656 (LAC) 34; Rennies Distribution Services (Pty) Ltd v Bierman NO and Others (2008) 29 ILJ 3021 (LC) at para 24; Opperman v Commission for Conciliation, Mediation and Arbitration and Others (2017) 38 ILJ 242 (LC) at para 18; Hillside Aluminium (Pty) Ltd v Mathuse and Others (2016) 37 ILJ 2082 (LC) at paras 71 – 72.

[52] (2021) 42 ILJ 2371 (CC) at para 35. See also Zungu v Premier of the Province of Kwa-Zulu Natal and Others (2018) 39 ILJ 523 (CC) at para 25.