Sun International Management (Pty) Ltd v Augustus and Others (JR635/22) [2024] ZALCJHB 447 (6 November 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 635/22

In the matter between:

SUN INTERNATIONAL MANAGEMENT (PTY) LTD Applicant and LUCANUS ALFRED JOHN AUGUSTUS First Respondent COMMISSIONER STEYN FOURIE NO Second Respondent COMMISSIONER SMITH DAVE HOWARD NO Third Respondent COMMISSIONER FOR CONCILIATION AND MEDIATION Fourth Respondent

Heard: 26 June 2024

Delivered: 6 November 2024

JUDGMENT

SONO, AJ

Introduction

1 Before this Court are two applications. The first and main application is a review application brought in terms of section 145 of the Labour Relations Act[1] (LRA) and the second application is a reinstatement application for the late filing of the record.

2 The court is required to first adjudicate and pronounce on the reinstatement application, because if the reinstatement application is dismissed, it is dispositive of the review application.

Facts

3 This dispute occurs in the following common cause factual matrix. The First Respondent was employed by the Applicant as an IT Manager and was part of the Applicant's senior management.

4 On 28 January 2021, the First Respondent's direct subordinate laid a grievance against him accusing the First Respondent of assault. A grievance meeting was held on 16 March 2021 and the grievance was not resolved. On 14 May 2021, the Applicant preferred misconduct charges against the First Respondent.

5 On 14 June 2021, the chairperson of the disciplinary hearing found the First Respondent guilty on both charges and imposed the sanction of dismissal.

6 On 1 July 2021 and based on the appeal process encapsulated in the Applicant's Disciplinary Code[2], the Third Respondent filed an appeal challenging the sanction recommended by the chairperson. On 16 July 2021, the appeal chairperson overturned the disciplinary hearing chairperson's decision on sanction and reduced it from a dismissal to a final written warning and an unreserved apology.

7 Following the appeal chairperson's findings, the Applicant invited the First Respondent to give reasons why he should not be dismissed. The First Respondent complied with the invitation and on 27 July 2021, the Applicant dismissed the First Respondent with immediate effect.

8 Aggrieved by the dismissal, the First Respondent referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), the Fourth Respondent herein. The CCMA found that the First Respondent's dismissal was both procedurally and substantively unfair. The commissioner reasoned inter alia that -

8.1 The first issue before him, before dealing with the question of fairness, was to decide whether the Applicant had powers to overturn the sanction handed down by the chairperson of an appeal hearing;

8.2 The Applicant's disciplinary policy did not provide for the overturning of the appeal outcome by a person who had not been part of the process;

8.3 The appeal chairperson's decision was not a recommendation but a binding decision. Further, that the Applicant's disciplinary policy makes no provision for the Applicant to accept or reject the chairperson's decision, therefore the Applicant did not have the power to overturn the appeal chairperson's finding on sanction;

8.4 Thus the First Respondent's dismissal was invalid and unfair.

9 It is in light of the above, that the Applicant has brought a review application seeking to have the decision of the CCMA reviewed and set aside. In prosecuting the review, it is common cause that the Applicant filed the record late hence the necessity for a re-instatement application.

10 The Applicant has simultaneously brought an application to review and set aside the ruling issued by the Second Respondent dismissing the rescission application brought by the Applicant before the Fourth Respondent.

Grounds of review

11 The Applicant seeks to have the arbitration award issued by the third respondent reviewed on the basis that:

11.1 the Third Respondent incorrectly applied the test for assault;

11.2 the third respondent committed a gross irregularity in that he did not consider the Applicant's prima facie evidence in respect of section 193(2)(d) of the LRA; and

11.3 the Third Respondent failed to discharge his duties when considering the appropriate remedy.

Reinstatement application

12 As stated above, before dealing with the review application, this Court is required to deal first with the status of the review application, whether the review is still alive given the delays in filing the record of the underlying proceedings under the auspices of the Fourth Respondent. To succeed in this application, the Applicant must show good cause.

13 Clause 11.2.2 of the now old Practice Manual provides that the record must, for purposes of rule 7A (6) of the Rules for the Conduct of Proceedings in the Labour Court[3] (the rules), be filed within sixty days of the date on which the applicant is advised by the Registrar that the record has been

received. If this does not happen, as was the case in this matter, clause 11.2.3 stipulates that the review application will be deemed to have been withdrawn. Once deemed to have been withdrawn, the Applicant has to bring an application for the reinstatement of the application.

14 The law on reinstatement applications is trite. The Applicant must show good cause for the non-compliance with the Practice Manual. The considerations in reinstatement applications are akin to condonation applications.[4] The Court has to consider the degree of lateness, the explanation proffered by the Applicant, and the prospects of success.

15 The degree of lateness is not extensive, and the Applicant has given an explanation for the lateness. In the court's view, the Applicant is not exclusively responsible for the delay. There were circumstances beyond the control of the Applicant which led and, in some respects, contributed to the delay. It cannot be ignored that the unavailability of the record of proceedings before the Fourth Respondent is the major contributing factor to the delay. The Applicant did not just sit and do nothing but for their failure to request an extension from the First Respondent in terms of the Practice Manual. In my view, the explanation for the delay is reasonable and acceptable. The reinstatement application will thus turn on the prospects of success.

16 This Court, the Labour Appeal Court (the LAC)[5] and the Constitutional Court[6] have reaffirmed the importance of prospects of success. It would, in this Court's view, be futile and a waste of this Court's scarce

judicial resources to reinstate an application where the applicant does not have prospects of success in the main review. This approach will also not be in line with the purpose of the LRA and our labour law regime which is the expeditious resolution of employment disputes. It is thus a very important consideration.

17 In dealing with the prospects of success, the court has to consider the Applicant's grounds of review. Based on the grounds of review considered together with the underlying issue in dispute that was before the Third Respondent, the prospects of success become dispositive of the matter. The Applicant contends inter alia that, the Third Respondent committed a gross irregularity by failing to apply his mind to the evidence that was before him; that the Third Respondent incorrectly applied the test for assault; that the Third Respondent committed a gross irregularity in that he did not discharge his duties when considering the appropriate remedy; and lastly that the Third Respondent did not properly consider the Applicant's prima facie evidenced in respect of section 193(2)(d).

18 At the commencement of the arbitration, the parties entered into a pre-arbitration agreement in terms of which they agreed that the Third Respondent must decide the following questions:

18.1 Whether the Respondent had the powers to overturn the sanction handed down by the chairperson of the appeal;

18.2 Whether the dismissal was procedurally and substantively fair; and

18.3 In the event that the dismissal is found unfair, whether reinstatement is an appropriate remedy.

19 The question is whether the Third Respondent rendered an award that a reasonable arbitrator could not reach.

20 The matter occurs within the factual matrix set out in both parties' heads argument. There seems to be very little dispute about the facts of the matter leading to the dismissal of the First Respondent as between the parties.

21 In short, there is no question that during the arbitration, the complainant, one Philemon Legodi (Legodi) led evidence that the First Respondent hit him on the shoulder with a cellphone and he had suffered no physical injuries as a result and when he used the word, "tap" during the disciplinary hearing and in the grievance, that was a poor choice of words on his part and that the grievance was not resolved for several months and he continued to work with the First Respondent for months after the incident until his dismissal.

22 Further, there is no dispute that the First Respondent was not removed from the workplace by way of a suspension after the incident nor was he placed on suspension after he was found guilty at the initial disciplinary hearing and whilst awaiting the outcome of the appeal until his dismissal on 27 July 2021. He continued to perform his duties and attended EXCO meetings with this cloud hanging over his head.

23 Following the disciplinary hearing, the First Respondent was found guilty of the charges and a sanction of dismissal imposed. Aggrieved by the outcome and as permitted in terms of the disciplinary code of the Applicant, he appealed the outcome and the chairperson of the appeal hearing found him not guilty of one of the charges and reduced the sanction of dismissal to a final written warning and apology.

24 Thus the central question is as follows:- does the Applicant have prospects of success in the review application. As stated above, it is common cause that the First Respondent's dismissal was overturned by the internal appeal chairperson and converted to a lesser sanction of a final written warning and an apology. Following that, the Applicant then overturned the decision of the appeal hearing chairperson. In effect, the Applicant overturned and changed the decision of the appeal chairperson.

25 It is trite that the decision of an internal disciplinary hearing chairperson is the decision of the employer. This is because such a chairperson acts in the stead or qua the employer. I see no reason why an appeal chairperson’s decision should also not be seen in this light, especially as it is the employer itself that grants an employee the opportunity to appeal and the appeal chairperson is appointed by the employer. In other words, the decision of an appeal hearing chairperson is the decision of the employer.

26 To increase the sanction, the question that this court will have to consider is whether or not there is a provision in the Applicant's disciplinary code permitting it to change or alter or substitute the decision of the appeal chairperson. In other words, whether the Applicant was empowered by its disciplinary policy to substitute the sanction imposed by the appeal chairperson. This is because this question goes to the heart of not only the prospects of successes in the reinstatement application, but also the review application itself.

27 In reaching the conclusion, the Court is guided by the LAC's decisions starting firstly with the decision of County Fair Foods (Pty) Limited v Commission for Conciliation Mediation and Arbitration and others.[7] In that case, the employee was coincidentally also charged with assault. The disciplinary hearing was chaired by the plant

manager of the employer. The chairperson imposed a sanction of a final written warning and a five-day suspension. Subsequently, the general manager altered the sanction to one of dismissal. The employee, aggrieved by the decision of the general manager, then referred the dispute to the CCMA which found the employee's dismissal to have been procedurally and substantively unfair. Dissatisfied by the CCMA's decision, the employer decided to review the CCMA's decision and the Labour Court upheld the CCMA's decision. The employer then appealed to the LAC.

28 The LAC held that:

"[21] …In the present dispute, there was no provision in the [employer's] disciplinary code which would justify the kind of intervention which [the general manager] initiated in order to ensure the dismissal of [the employee]…This dispute concerned the unfairness of interfering with the decision of the disciplinary tribunal which had properly been appointed by [the employer] and, to which interference, no provision was contained in the disciplinary code which would justify the action taken by [the general manager]."

29 The LAC concluded that:

"…[the Employer] acted without recourse to the express provision of its disciplinary code and on the basis of no precedent…"[8]

and on this basis the LAC dismissed the employer's appeal and upheld the decision of the CCMA that the employee's dismissal was unfair.

30 Subsequently the LAC dealt with this issue in South African Revenue Service v Commission for Conciliation Mediation and Arbitration and Others[9] (Chatrooghoon) wherein the issue was whether or not SARS, the employer, was entitled to substitute a sanction short of dismissal

imposed by the disciplinary tribunal in circumstances where the collective agreement was silent on the issue.

31 The LAC in Chatrooghoon considered the wording of the applicable collective agreement and concluded that it was silent on whether or not SARS could substitute the final sanction imposed by the disciplinary chairperson. It is on this basis that the LAC held that:

"[34] …it was utterly wrong and unacceptable from the legal and constitutional perspective, that SARS simply unilaterally changed the sanction without affording Chatrooghoon or his representative trade union an opportunity to be heard on the matter. This was a gross violation of the natural justice principle of audi alteram partem rule and the rule of law. The fact that SARS may have similarly conducted themselves in the past without any objection from any of the trade unions involved in the collective agreement, did not render such patently unfair and unjust conduct, on the part of SARS, fair and just…

[35] The disciplinary code provides that "[a]ny employee may appeal any disciplinary action taken against him/her or the outcome of the disciplinary hearing by completing form Annexure E". No similar right is accorded to SARS, as the employer, in terms of the collective agreement…"

32 It was, inter alia, on the aforementioned basis that the LAC dismissed SARS' appeal with costs. SARS had also argued that because the employee had been found guilty of misconduct that had affected the trust relationship between the parties, it had the right to substitute the chairperson's sanction. The LAC rejected the argument that the implied term of trust and confidence extended to include a right for SARS to substitute a sanction imposed by the chairperson.

33 The same issue came before the LAC in SARS v CCMA[10] (the Kruger Case). This case concerned an employee who had used a racial slur by referring to his African superior as a 'kaffir'. SARS charged the employee, Mr Kruger, who pleaded guilty to the misconduct. Following submissions on mitigation and aggravation, the disciplinary hearing chairperson found Mr Kruger guilty of the misconduct and imposed a sanction of a final written warning and suspension and further directed that Mr Kruger receive counselling. SARS rejected the chairperson's 'recommendation',

imposed a sanction of dismissal and terminated Mr Kruger's employment.

34 Mr Kruger appealed the decision to dismiss him internally contending that SARS did not have the power to substitute the sanction imposed by the disciplinary hearing chairperson. The appeal was rejected. Mr Kruger referred an unfair dismissal dispute to the CCMA. Mr Kruger persisted with the contention that SARS did not have the power to substitute the disciplinary sanction imposed by the chairperson. The CCMA arbitrator found that the employer indeed did not have the power to change the disciplinary enquiry outcome. Dissatisfied with the arbitrator's decision SARS brought a review application. The Labour Court, per Pillay J, held that the finding by the arbitrator that SARS (the employer) had no power to change the sanction was a reasonable decision. SARS then appealed to the LAC. On appeal, SARS elected not to challenge the finding by the review court in light of the Chatrooghoon decision.

35 Before the LAC, SARS argued that notwithstanding that SARS could not substitute a sanction imposed by a disciplinary hearing chairperson, it was possible for an arbitrator to overturn the sanction imposed by the disciplinary hearing chairperson. SARS argued that the substitution decision was an issue of procedural unfairness over which the CCMA arbitrator would have jurisdiction. The LAC rejected this argument and held that:

"[a]n unlawful act will always be, within the Labour jurisprudence paradigm, both substantively and procedurally unfair".[11]

The LAC concluded that:

"[42] …it must follow that if the substitution of a sanction is invalid, as found in Chatroohoon, that invalidity vitiates the act completely…Invalidity is more than procedural unfairness, it denotes an unlawful act; i.e. one the law will not acknowledge…Similarly, the contention that the judgement of Ndlovu JA, in Chatrooghoon, has application only to procedural fairness cannot succeed because the force of those dicta by Ndlovu JA is that a substitution without a lawful foundation, is not merely unfair for want of a procedural authorisation, but is invalid."

36 The LAC reiterated that SARS could not invoke a breach of trust to justify changing a sanction. Furthermore, the LAC reiterated that SARS had no power to substitute the sanction of the disciplinary hearing chairperson when it did.[12]

37 SARS then approached the Constitutional Court only in respect of the reinstatement part of the award, having abandoned the attack on the award on the basis the Commissioner (of SARS) had the right to increase the sanction. Similarly, in this matter as per the pre-arbitration agreement between the parties, the Third Respondent was required to decide whether reinstatement was the appropriate remedy in the circumstances of the matter.

38 It is thus settled law that absent a provision that empowers an employer to change and increase a sanction imposed by a disciplinary hearing chairperson, and in this case an appeal hearing chairperson, an employer that acts in that manner acts ultra vires and therefore unfairly.

39 The Applicant's Disciplinary Policy made provision for an employee to appeal the sanction imposed by a disciplinary hearing chairperson. The First Respondent did just that. No provision in the Disciplinary Policy empowered the Applicant, as the employer, to then review the sanction of the appeal chairperson.

40 In light of the above case law, this Court finds that the Applicant has no prospects of success in the review application based on this ground. Even if this Court were to proceed and deal with the review application, the question of substitution/interference with the appeal chairperson's decision will arise and the answer to it will not change. There is no provision in the Applicant's Disciplinary Code which empowers it to alter, increase or substitute the decision of the appeal chairperson. In doing so, the Applicant acted ultra vires and therefore the Applicant unfairly dismissed the First Respondent. The matter however does not end there.

Reinstatement as a remedy

41 Parties agreed in terms of the pre-arbitration minute that the arbitrator should decide on two more issues, being (1) whether the dismissal was procedurally and substantively fair and (2) in the event of the dismissal being found to be unfair, whether reinstatement is an appropriate remedy.

42 The Applicant argued passionately that the First Respondent cannot be reinstated in light of the fact that the employment relationship had broken down irretrievably. In support of this contention, the Applicant argued that the First Respondent held a senior position, being two levels above Legodi and a member of the executive, that he abused his authority and exhibited no real contrition for his conduct.

43 The Applicant contends as part of the grounds of review that the Third Respondent committed a gross irregularity in that he did not discharge his duties when considering the appropriateness of reinstatement as a remedy in the circumstances of the matter.

44 It is trite that the primary remedy to any unfairly dismissed employee is the remedy of reinstatement.

45 In the Kruger case supra, the Constitutional Court there interfered with the arbitration award based on policy considerations involving racism in the workplace

which in the words of the Constitutional Court, remains rampant in our country. The Court there, talking about the pervasiveness of racism in our country, said that:

"Racism arguably remains rampant in South Africa. A point of law that is enmeshed in a decision or legal atmosphere that is about whether crude racism in a workplace would be reconcilable with reinstatement, is of such general public importance that it should receive the attentions of this Court". In this case, the Constitutional Court was concerned about its imperative to eliminate racism as the guardian and custodian of the Constitution.

46 At paragraph 44 of the judgment, the court made the observation that:

"After concluding that Mr Kruger's dismissal was unfair, the Arbitrator immediately ordered his reinstatement without taking into account the provisions of section 193(2). She was supposed to consider specifically the provisions of section 193(2) to determine whether this was perhaps a case where the reinstatement is precluded. She was also obliged to give reasons for ordering SARS to reinstate Mr Kruger despite its contention and evidence that his continued employment would be intolerable. She was required to say whether she considered Mr Kruger's continued employment to be tolerable and if so, on what basis. This was not done. She does not even seem to have considered whether the seriousness of the misconduct and its potential impact in the workplace, were not such as to render the reinstatement inappropriate. And those are the key factors she ought to have considered before she ordered SARS to reinstate Mr Kruger".

This is the irregularity lamented by the Applicant before this court.

47 In the Kruger case matter, the Constitutional Court went further to find that, to retain Mr Kruger as an employee, wherever he might be placed, would be similar to recklessly leaving a ticking time-bomb unattended to, knowing it could detonate at any time, with consequences that are too ghastly to contemplate."

48 At paragraph 49, the Constitutional Court went further and held that:

"By ordering SARS to reinstate Mr Kruger the Arbitrator acted unreasonably. She also does not appear to have been mindful of the fact that in terms of section 193 (2) of the LRA, reinstatement would not follow as a matter of course. It would in fact not be an option "if circumstances surrounding the dismissal (were) such that a continued employment relationship would be intolerable". No reasonable arbitrator could have ordered reinstatement" The court proceeded to make a finding that that part of the award is unreasonable and should be reviewed and set aside.

49 Although on the facts the Constitutional Court was dealing with a different issue, it did not depart from the law as it applies to review applications.

50 Coming to the present matter, although the egregiousness of the misconduct of the Third Respondent is by far distinguishable from conduct dealt with in the Kruger case, the question is whether the Third Respondent's decision is one that a reasonable decision maker could not reach.

51 In his award, the Third Respondent after regurgitating the evidence and submissions of the parties and setting out the provisions of section 193(2) of the LRA and stating what the First Respondent requested as a remedy, merely comes to the conclusion that there is no reason not to award this.

52 The Third Respondent does not state in his award why the Applicant's continued employment would be tolerable in the circumstances despite the Applicant's contention that it is not. In the words of the Constitutional Court in the Kruger case, he was required to say whether he considered the First Respondent's continued employment tolerable and if so, on what basis.

In the present matter, the Applicant argued why in its view continued employment would not be tolerable. The First Respondent equally

argued the opposite position. The Third Respondent was then enjoined to specify on what basis he accepts the First Respondent's contention and rejects the Applicant's contention. He merely came to the conclusion that there is no reason not to award the First Respondent the remedy of reinstatement.

53 It does not appear that the Third Respondent considered whether the seriousness of the misconduct and its potential impact in the

workplace, as argued by the Applicant were not of such a nature as to render reinstatement inappropriate.

54 If the Third Respondent found the reasons given by the Applicant to be inadequate, he should have made that finding and give some reason why those reasons given by a party are inadequate or unacceptable. It is not for this court in the review application, to assess the evidence led by the parties, impose its value judgment and rewrite the arbitration award on behalf of the Third Respondent.

55 The Third Respondent was enjoined by law and as agreed by the parties before him to consider the appropriateness of reinstatement as a remedy having found that the dismissal was for a substantively fair reason. Similarly, he failed to consider this question having limited himself to a finding on the fairness or otherwise of the Applicant's act to increase the sanction in circumstances where the disciplinary code does not make provision for such right.

56 Having found that the Applicant was not entitled in terms of its disciplinary code to increase the sanction on appeal, the Third

Respondent had to consider whether the dismissal was nonetheless for a valid reason and if so and having found that the dismissal was unfair, he ought to have enquired at the appropriateness of reinstatement as a remedy as agreed between the parties and importantly as summarized by him in the award as an issue that he is required to decide. The Third Respondent understood that he had to deal with these issues but failed to do so and this rendered his award unreasonable.

57 In the court's view therefore, the Applicant has prospects of success in the review application on this ground.

58 As stated above in this judgement, having found that the Applicant has prospects of success in this ground, the application for

reinstatement of the review ought to be granted and consequently, the review application on this ground is similarly granted. Therefore,

the award by the Third Respondent is reviewed and set aside in so far as the Third Respondent has ordered the reinstatement of the First Applicant in the circumstances.

Costs

59

It is trite that in disputes of the nature before the Court, i.e. individual dismissal dispute, the general rule of practice that costs follow the result does not apply.[13] On the facts before this Court, the Court sees no need to depart from the general rule in labour law.

60 In light of the above, this Court makes the following order:

Order

1. The application to reinstate the review application is granted;

2. The review application is granted on the basis of the 5th and 6th grounds of review as set out in the Applicant's supplementary affidavit;

3. The matter is remitted to the Fourth Respondent for a fresh determination before an arbitrator other than the Third Respondent for the determination of the appropriateness of reinstatement as the remedy in the circumstances of the matter;

4. There is no order as to costs.

B. M. Sono

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr M. Ledwaba

Cliffe Dekker Hofmeyr Inc

First Respondent: Mr M. Schermers

C J Geldenhuys Inc

[1] No. 66 of 1995, as amended.

[2] The Process Guideline for Sun Internationals Disciplinary and Incapacity Procedures

[3] 1996. These have since been replaced by the new Rules Regulating the conduct of proceedings of the Labour Court (GN 50608: 3 May 2024. Effective 17 July 2024).

[4] See: Pudi v Tshwane University of Technology (JR 801/17) [2022] ZALCJHB 160 (3 June 2022) at para 27. wherein this Court held that "…the Court must determine a reinstatement application like a condonation application. It is trite that condonation is not there for the taking. In such applications, the applicant is seeking an indulgence from the Court to reinstate his matter that he has voluntarily withdrawn. Therefore, the discretion whether to reinstate or not must be exercised judiciously taking into account the length of the delay, the reason for the delay, prospects of success, prejudice and interest of justice …" See also: Zono v Minister of Justice and Correctional Services; In Re: Minister of Justice and Correctional Services v Zono and

Others [2020] 11 BLLR 1160 (LC) at para 17. See also SA Municipal Workers Union on behalf of Mlalandle v SA Local Government Bargaining Council and Others (2017) 38 ILJ 477 (LC) at para 6.9; MJRM Transport Services CC v Commission for Conciliation, Mediation and Arbitration and Others (2017) 38 ILJ 414 (LC) at para 21; Kock v Commission for Conciliation, Mediation and Arbitration and Others (JR764/18) [2021] ZALCJHB 101 (31 May 2021) at para 5.

[5] See: NUM v Council of Mineral Technology [1999] 3 BLLR 209 (LAC) at para 9 wherein the LAC held that: "[t]here is a further principle which is applied and that is without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused."

[6] See: eThekwini Municipality and Ingonyama Trust 2013 (5) BCLR (CC).

[7] [2003] 2 BLLR 134 (LAC).

[8] County Fair (Id fn 7) at para 23.

[9] [2014] 1 BLLR 44 (LAC).

[10] (JA 06/11) [2015] ZALAC 62 (8 December 2015).

[11] See para 33

[12] Ibid at para 47.

[13] See: Union for Police Security and Corrections Organisation v South African Custodial Management (Pty) Ltd and Others (2022) 43 ILJ 341 (CC) at para 24 and 25.