Zondo v South African Local Government Bargaining Council and Others (JR 2299/18) [2021] ZALCJHB 51 (31 March 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 2299/18

In the matter between:

TIMOTHY ZONDO

Applicant

and

THE SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL (SALGBC) First

Respondent

COMMISSIONER TIMOTHY BOYCE N. O Second

Respondent

CITY OF JOHANNESBURG

Third

Respondent

Heard: 11 November 2020

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website. The date and time for hand-down is deemed to be 31 March 2021 at 12:00

JUDGMENT

TLHOTLHALEMAJE, J

Introduction and background:

[1] In this opposed application, the Applicant (Mr Timothy Zondo) seeks an order reviewing and setting aside the arbitration award issued by the Second Respondent (Arbitrator) dated 27 June 2018. In the award, the Arbitrator found that the dismissal of Zondo by the Third Respondent (COJ), was substantively unfair, and had awarded compensation in the amount equivalent to two months’ salary.

[2] Zondo was in the employ of COJ as Deputy Director: Administration and Logistics. Within the SHELA and FCM Unit of COJ. He reported directly to the Director: Administration and Logistics (Mr Tshibalo), and the latter in turn reported to the Group Head of SHELA and FCM Unit, Dr. Ramroop. Zondo was charged and dismissed on account of misconduct related to gross insubordination and insolence. Following a referral of an alleged unfair dismissal dispute to the first respondent (SALGBC), and when conciliation failed, the matter came before the Arbitrator for determination.

Preliminary issues:

[3] COJ takes issue with the manner with which the review application was prosecuted. The first is that Zondo in his Notice of Motion, seeks various orders, including that the Arbitrator’s award be substituted with an order that he be paid an amount of R166 970.16,

and retrospective reinstatement. Clearly the orders sought are not competent within the context of section 193(1)(a) of the Labour

Relations Act (LRA).[1]

[4] A second point raised on behalf of COJ is that Zondo in his papers had alleged that the Arbitrator had found that his dismissal was procedurally unfair when this was not the case as evident from paragraphs 40 – 41 of the Arbitrator’s award. This is clearly an obvious misrepresentation of the Arbitrator’s award.

[5] A third point raised is that Zondo had taken irregular steps on various fronts. The review application was launched on 31 October 2018. Zondo had merely sent an email contending that he stood by his founding affidavit. This appears to have been his Rule 7A(8) notice of compliance. COJ had filed it opposing affidavit on 26 February 2019. Notwithstanding his previous email stating that he stood by his founding affidavit and after the opposing affidavit was filed, Zondo replied to the opposing affidavit on 8 April 2019.

[6] On 15 October 2020, some one year later, Zondo had filed a ‘supplementary affidavit’. This was done without the leave of the Court or an application for condonation. This irregular step is egregious and I agree with the contentions made on behalf of COJ that the supplementary affidavit filed belatedly by Zondo ought to be struck off the record.

[7] COJ raised a fourth point, which was that Zondo’s review application is deemed to have lapsed by virtue of non-compliance with the provisions of clause 11.2.7 of this Court’s Practice Manual[2]. The basis upon which COJ sought to have these provisions be invoked was that the supplementary affidavit was filed on 15 October 2020. It is my view however that to the extent that the supplementary affidavit was struck off the record, and further to the extent that the transcribed record was filed on 25 June 2019, there is no basis for the review application to be deemed to have lapsed, and the Court is in a position to deal with the merits of the application based on Zondo’s founding affidavit and COJ’s opposing papers.

The arbitrator proceedings and the award:

[8] The incident leading to the alleged misconduct and the subsequent dismissal of Zondo is said to have taken place on 21 September 2016 during a meeting initiated by Zondo and convened by Ramroop with various senior managers in the Logistics and Administration department. Another incident that led to the charges against Zondo is said to have taken place on 26 October 2016. Charges were preferred against Zondo on 7 November 2016

[9] The essence of Ramroop’s testimony before the Arbitrator was that;

9.1 After he had opened the meeting on 21 September 2016, Zondo had rudely interrupted him, stood up in the meeting and said something to the effect that the meeting was not about the issues on the agenda that he (Ramroop) had introduced. Despite Ramroop’s reprimand that he needed to be allowed to continue with the meeting, Zondo continued to raise his objections, and Ramroop had again instructed Zondo to stop interrupting him and to allow him to continue with the meeting.

9.2 When the meeting could not proceed as a result of Zondo’s interruptions and objections, Ramroop had then adjourned it, and instructed the other staff members present to go back to their workstations.

9.3 A while later after the adjournment, Ramroop re-convened the meeting and specifically omitted to invite Zondo due to the latter’s earlier disruptive conduct. Despite not being invited, Zondo returned to the boardroom where the meeting was reconvened, and took a seat. Ramroop then told Zondo that he was not invited, and that he should leave the meeting. Instead of leaving, Zondo had then complained that the meeting could not proceed without him since his subordinates were invited and present in the meeting. Zondo told Ramroop that it was he (Zondo), that had scheduled that meeting, and not Ramroop.

9.4 It appears that Zondo’s concerns related to a grievance he had earlier lodged against one of the managers (Rahab). Zondo held the view that the grievance was not being properly addressed by Ramroop. Ramroop had nonetheless on no less than three occasions, asked Zondo to leave the meeting, and the latter had refused, banging on the table in the process and displaying belligerent conduct. Zondo’s conduct had caused Ramroop to adjourn the meeting for a second time. At some point after the second adjournment, Ramroop had reconvened the meeting for the third time, and Zondo, who was again not invited, had not attended.

9.5 The following day, Ramroop sent a memorandum to Zondo in regard to his conduct the previous day, pointing out that he had acted in an aggressive, disrespectful, rude, unprofessional, intimidating and insubordinate manner.

9.6 A further incident leading to the charge of insubordination against Zondo took place on 26 October 2016, when workmen from a private property company came at COJ’s premises to do renovations. Upon arriving at Zondo’s office, the latter told the workmen not to proceed with the renovations.

9.7 The workmen had reported the matter to Ramroop who then escalated the matter to Tshibalo. Upon Zondo being asked by Ramroop in the presence of Tshibalo as to the reason he had not allowed the workmen to proceed with the renovations in his office, his response was that he was not informed about those renovations, and that as long as he was in the office, no such renovations would not take place.

9.8 Zondo had complained about being ignored, and that no permission was sought from him before the renovations could take place in his office. In the light of Zondo’s reaction, Ramroop, despite having approved the renovations as Group head, then advised the workmen not to proceed with the renovations in Zondo’s office.

9.9 Ramroop’s contention was that matters had reached the highest point in the light of Zondo having challenged his authority in the presence of junior staff on 21 September 2016 and again on 26 October 2016, in the presence of workmen

from the property company.

[10] Tshibalo, who reported to Ramroop, testified in regards to the events in the meeting of 21 September 2016. He was invited to that meeting by both Zondo and Ramroop. The purpose of the meeting according to Zondo was to discuss matters related to an altercation between two staff members (Rahab and Virginia), whilst according to Ramroop, the meeting was meant to discuss general issues affecting the department.

[11] Tshibalo essentially confirmed the conduct of Zondo as described by Ramroop, and the adjournment of the meeting on two occasions because of Zondo’s disruptive behaviour. Tshibalo described Zondo’s conduct as being out of line as he had argued with his senior, and contended that he was unprofessional, grossly insubordinate, disrespectful, rude and was intent on not giving Ramroop an opportunity to preside over the meeting as head of the department.

[12] Tshibalo also confirmed Zondo’s conduct as alluded to by Ramroop when the workmen arrived at his office to make renovations. Although Zondo had claimed that he was not aware of the planned renovations, this was not probable according to Tshibalo, as everyone at the premises was aware of the planned renovations some two months before the workmen came.

[13] Tshibalo confirmed that Ramroop had instructed Zondo to let the workmen proceed with the renovations and that the latter had refused, alleging that he was not informed about those renovations. Tshibalo regarded Zondo’s conduct in this regard as insubordinate. He had testified in regards to a breakdown in the relationship between Zondo and Ramroop which had been ongoing since 2013 as they were always arguing, and it had reached a point where Tshibalo formed the view that the two could not work together, and that their working relationship could not be restored.

[14] The testimony of Zondo was that;

14.1 Before the meeting of 21 September 2016, two other employees in the department, viz, Rahab and Virginia, were involved in an altercation on 19 September 2016, and that this was reported to Tshibalo, who had in turn escalated the matter to Ramroop.

14.2 He had sent out invitations to staff to attend a meeting on 21 September 2016 to discuss the altercation between the two staff members. He nonetheless contended that there was nothing that prevented Ramroop from raising any other general matters in the meeting.

14.3 He denied that he had insisted that the issue of the altercation between Rehab and Virginia be the only matter to be discussed at the meeting. He contended that after Ramroop had started the meeting, all the general matters were raised and discussed, and it was only after, that he had raised the issue of the two employees and general complaints about certain staff members not performing their duties. When Ramroop refused to discuss the matter, he did not seek to argue with him, and had left the meeting after it was adjourned.

14.4 He conceded that he had returned to the meeting when it was reconvened even though he was not invited by Ramroop. He further conceded that Ramroop told him that he was not needed at that meeting and that he should leave. He however denied being asked by Ramroop to leave the meeting as he was disruptive, and contended that he had merely made his ‘contribution’ and left.

14.5 Zondo had accused Ramroop of having fabricated his version and the allegations against him. He alleged that Ramroop did not like him and had his own ‘agenda’ after he had also lodged a grievance against him because he had victimised him.

14.6 In regards to the incident involving the workmen who came to make renovations in his office, Zondo had conceded that he was aware that these renovations were to take place. He however denied that he knew what the nature of those renovations were, and when the work would commence. He also denied having prevented the workmen from proceedings with the renovations as testified by Ramroop and Tshibalo, and contended that the workmen left because Ramroop told them to do so.

[15] The Arbitrator made the following findings and conclusions:

15.1 To the extent that Zondo had complained that his dismissal was procedurally unfair because he either did not understand the charges, or that the chairperson was biased or conflicted, or that the enquiry was not set up in accordance with COJ’s disciplinary guidelines, there was no evidence to substantiate those allegations, and the dismissal was therefore procedurally fair.

15.2 In regards to the substantive fairness of the dismissal, and in respect of the misconduct related to gross insubordination and insolence, the Arbitrator concluded that;

15.2.1 The evidence of Ramroop and Tshibalo in respect of the events that took place in the meeting of 21 September 2016 was plausible, cogent and compelling, whilst that of Zondo’s witnesses (Belinda and Nelson) in regards to what took place in that meeting was contradictory and inherently improbable.

15.2.2 It is inconceivable that Ramroop would have cancelled or adjourned the meeting on two occasions if Zondo had not acted in a disruptive manner or had refused to leave the meetings when instructed to do so. The inference to be drawn was that Zondo had indeed repeatedly disrupted the meetings, interrupted Ramroop, and caused the meetings to be cancelled or adjourned.

15.2.3 In the cause of disrupting and refusing to leave the meetings as instructed by Ramroop, Zondo was disrespectful, and had undermined and challenged the authority of Ramroop as Head of the Group. To that end, Zondo’s conduct on 21 September 2016

was insubordinate and insolent.

15.2.4 Despite the misconduct pertaining to the events of 21 September 2016 and 26 October 2016, a sanction of dismissal was nonetheless not appropriate in view of Zondo’s 15 years of service and a clean disciplinary record. To that end, the COJ had failed to apply progressive discipline as envisaged by Item 3(2) of the Code of Good Practice, making the dismissal substantively unfair.

15.2.5 A reinstatement was however not appropriate remedy since Zondo had not shown any remorse and his defiance of authority led to a conclusion that a continued work relationship would be intolerable, especially given the toxic and non-existent nature of a relationship between Ramroop and Zondo as his subordinate.

15.2.6 A suitable remedy therefore was an award of compensation equivalent to two months’ salary.

The legal framework and evaluation:

[16] The test on review need not be rehashed, other than to restate that the question that this Court needs to answer is whether the decision reached by the Arbitrator in the light of the evidence placed before him is one that a reasonable decision- maker could not reach[3]. The test is clearly a stringent one, to ensure that arbitration awards are not lightly interfered with[4].

[17] Equally central to the review test is an assessment of whether the Arbitrator in this case, and in terms of his duty to deal with the matter with the minimum of legal formalities, afforded the parties a full opportunity to have their say in respect of the dispute; properly identified the dispute he was required to arbitrate; understood the nature of the dispute he was required to arbitrate; dealt with the substantial merits of the dispute; and most importantly, arrived at a decision that another decision-maker could reasonably have arrived at based on the evidence that was placed before him[5].

[18] As was correctly pointed out by Mr Nhlapo on behalf of COJ during these proceedings, it is difficult from Zondo’s pleadings to assess the basis upon which the Arbitrator’s arbitration award is challenged and what the specific grounds of review were or what relief he was seeking. It was only at the hearing that Mr Jabangwe on behalf of Zondo had clarified that what was being

challenged were the findings made by the Arbitrator in regard to whether the charges were proven. In this regard, the complaint was that the Arbitrator failed to have regard to the totality of the evidence before him, failed to consider more compensation to the extent that he had found that the dismissal was substantively unfair and that reinstatement was not appropriate, and further failed to take into account when ordering compensation, the fact that Zondo had incurred legal costs at the internal disciplinary.

[19] In addressing Zondo’s grounds of review, the first point that needs to be made is that the Arbitrator’s award is extremely detailed in capturing the evidence that was placed before him. Equally elaborate is the Arbitrator’s analysis of that evidence and to a large extent, his attention to detail. On the whole, it is evident that Arbitrator had afforded the parties a full opportunity to have their say in respect of the dispute; properly identified the dispute he was required to arbitrate; understood the nature of the dispute he was required to arbitrate, and most importantly, dealt with the substantial merits of the dispute.

[20] Too much time and effort was placed by Zondo in his papers on minute details of the evidence and how or why the Arbitrator ought to have found that the onus in regards to the allegations of misconduct had not been discharged. In making an assessment as to whether the decision of the Arbitrator falls within a range of reasonableness, this Court has repeatedly been reminded that a distinction ought to be maintained between a review and an appeal, and that the Court must broadly evaluate the merits of the dispute and consider whether, if the arbitrator’s reasoning is found to be unreasonable, the result is, nevertheless, capable of justification for reasons other than those given by the arbitrator. Thus, an award would be unreasonable if it is entirely disconnected with the evidence, unsupported by any evidence and involves speculation by the arbitrator[6].

[21] In this case, Zondo’s pleadings clearly fails to appreciate the distinction between a review and an appeal. The evidence, as succinctly set out in the arbitration award, point to the fact that Zondo’s conduct in respect of the incidents on 21 September 2016 and 26 October 2016, was such that on no less two occasions on 21 September 2016, he had interrupted Ramroop during the meeting and had on no less three occasions, refused to leave when instructed to do so by Ramroop. On the second occasion the meeting was reconvened, Zondo had attended the meeting when he was not specifically invited, had again refused to leave when instructed to, and had continued with his disruptive behaviour.

[22] On 26 October 2016, and notwithstanding the fact that he knew about the renovations, he had refused to let those renovations continue, despite instructions by Ramroop.

[23] In this case, Zondo was found guilty on both the charges of insolence and insubordination. The distinction and overlap between the two offences was clarified in Palluci Home Depot (Pty) Ltd v Herskowitz and Others[7]. Central to that distinction is that the offence of insubordination in the workplace constitutes a wilful and serious refusal by an employee to obey a lawful and reasonable instruction or where the conduct of an employee is not only disrespectful but also poses a deliberate (wilful) and serious challenge to or defiance of the employer's authority. Insolence on the other hand constitutes conduct which is offensive, disrespectful, impudent, cheeky, rude (disrespectful in speech or behaviour), insulting or contemptuous.

[24] As correctly pointed out by Tshibalo in his testimony, Zondo’s conduct was indeed out of line. He was rude towards Ramroop, had acted in an unprofessional, grossly insubordinate, and disrespectful manner. He was bent on asserting his own authority over that of Ramroop, and had deliberately and intentionally undermined and challenged the latter’s authority as his senior manager. What made the conduct worse was that the disrespect and insubordination was displayed not only in front of junior employees and Tshibalo who was also his senior, but also in front of other individuals who were not part of the OCJ’s establishment.

[25] Rather than owning up to his disgraceful behaviour, Zondo as is now typical of individuals finding themselves in a pickle, had played the victim card, contending that the allegations against him were either a fabrication or part of Ramroop’s sinister agenda,

since he had laid a grievance against him. Clearly there was no semblance of truth in his conspiracy theories, more particularly

since his other senior manager, Tshibalo, was present throughout the two incidents, and had corroborated Ramroop’s version of events with clarity and detail.

[26] Even if the relationship between Ramroop and Zondo was toxic as the Arbitrator had established, there was still no reason as to why Tshibalo, with whom Zondo did not appear to have had any problems, would have corroborated Ramroop’s version with such

clarity and detail.

[27] There is therefore no basis upon which it can be said that the Arbitrator failed to take the totality of the evidence into account,

when he had found that the evidence of the two witnesses on behalf of Zondo was full of contradictions and improbabilities, or that Zondo had indeed acted in an insolent and insubordinate manner.

[28] Zondo’s conduct clearly fits the description of being insolent and insubordinate as outlined in Palluci,[8] and in the end, there is no basis to conclude that the Arbitrator had misconceived the evidence before him in regard to the allegations of misconduct, nor can it be said that the findings of the Arbitrator are disconnected with the evidence, unsupported by any evidence and involved speculation on his part.

[29] Even though Zondo’s conduct clearly constitutes insubordination and insolence considered to be gross, the Arbitrator had nonetheless refrained from attaching that label, and had instead found that the dismissal was substantively unfair purely on the basis that COJ failed to have regard to the principles surrounding progressive discipline, to the extent that Zondo had 15 years of service and a clean disciplinary record. Zondo takes issue with the Arbitrator’s conclusions in that regard.

[30] Section 193(2) of the LRA requires an order reinstatement or re-employment for unfair dismissal, unless the employee does not seek such relief, or the circumstances would make a continued employment relationship ‘intolerable’; or it is not ‘reasonably practicable’ for the employer to be reinstated, or unless the dismissal is unfair only because the employer did not follow a fair procedure.

[31] In this case, the Arbitrator had considered the above provisions and concluded that a reinstatement was not appropriate, since Zondo had not shown any remorse, and further since his defiance of authority led to a conclusion that a continued work relationship would be intolerable, especially given the toxic and non-existent nature of a relationship between Ramroop and Zondo as his subordinate.

[32] In these proceedings, it was argued that a reinstatement ought to be ordered since Ramroop is no longer in the employ of COJ. This contention is however without merit in that in any review, it is the facts that were placed before the Arbitrator at the time that are taken into account and not those that occurred post the arbitration proceedings. In any event, Ramroop represented COJ in his capacity as its Group Head, and the insubordinate and disrespectful conduct displayed by Zondo was not only towards Ramroop in his personal capacity, but also to the position he held and the general authority of OCJ over its employees. In essence, Zondo has no regard for authority irrespective of the occupant of the position, and had refused to subject himself to that authority. Furthermore, he had throughout, refused to show any form of contrition, and to date, had refused to see the error of his ways.

[33] To the extent that any reliance was placed on Zondo’s long service and clean disciplinary record, it has long been held that even though these are important mitigating factors, they cannot in every case safe an employee from dismissal, as the question that arises in all instances is the nature and effect of the misconduct in question[9].

[34] To reiterate, Zondo’s conduct in disrespecting Ramroop, under circumstances where he had repeatedly done so despite being reprimanded, and further to the extent that he had refused to acknowledge the error of his ways, in my view fortifies the Arbitrator’s conclusions that a reinstatement was not the appropriate remedy, as a continued employment relationship would be ‘intolerable’. To the extent that any employment relationship is dependent on the employee and his/her superiors working closely together, Zondo had failed to demonstrate that he was capable of doing so.

[35] Zondo also took issue with the amount of compensation that the Arbitrator had awarded. The rationale behind the relief of compensation was explained in Ronè Bester (Scott) v Small Enterprise Finance Agency SOC Ltd and others[10] as follows;

“The premise of a compensation award is to give recognition to an unfair act on the part of the employer, whose decision it was to dismiss and did so unfairly. Compensation in terms of section 194 of the LRA serves purposes broader than mere patrimonial damages, as the express allusion the award of compensation being just and equitable”

[36] One of the grounds upon which it was alleged that the compensation amount was not reasonable was that Zondo was both legally and union represented at the internal disciplinary hearing, and further that he had already paid an amount of R150 000.00 in legal fees, with a further R100 000.00 outstanding.

[37] The assertion upon which more compensation is sought is indeed without a legal basis. The first consideration is that if Zondo was a member of a Union (SAMWU), I fail to appreciate why in the first place, he would seek legal representation for the purposes of an internal disciplinary enquiry that concerned an ordinary and non-complicated matter involving allegations of misconduct. The second concern is that if he is or was a member of SAMWU, why would the union not bother to pay his unnecessary legal fees if indeed it had granted him the go-ahead to get legal representation? In the end however, and as correctly pointed out on behalf of COJ, legal fees incurred by an employee in an internal disciplinary enquiry hardly features as a consideration when determining what is just and equitable compensation.

[38] The factors to be considered when determining the amount of compensation in the event of a dismissal being found to be substantively unfair are spelt out in detail in the CCMA Guidelines: Misconduct Arbitrations[11], and include inter alia, an assessment of the reason for the dismissal, whether the employee was guilty or innocent of the misconduct; the employee’s

remuneration and benefits at the time of dismissal, and the time that has elapsed since the dismissal;

[39] In this case, inasmuch as the Arbitrator had for some inexplicable reason found that the misconduct in question was only insubordinate and insolent, but not grossly so, in exercising his discretion in regards to the amount of compensation, he had regard to the circumstances leading to the dismissal and the finding of guilt in respect of the incidents in question. The Arbitrator also had regard to Zondo’s 15 years of service and clean disciplinary record at the time of the misconduct, and the fact that he remained unemployed at the time.

[40] I agree with the contentions made on behalf of COJ that the Arbitrator cannot be accused of having failed to take into account the principles applicable when determining the amount of compensation. Even if on the totality of the evidence it can be said

the amount arrived at is not reasonable, at most compensation equivalent to four months’ salary would have been more than

just and equitable, given the appalling conduct displayed by Zondo and that led to his dismissal.

[41] I have further had regard to the requirements of law and fairness in regards to an award of costs. To the extent that Zondo was partially successful in this case, I deem it inappropriate to make an award of costs.

[42] Accordingly, the following order is made;

Order:

1. The Applicant’s Supplementary Affidavit filed and served on 15 October 2020 constitutes an irregular step and is struck off the record.

2. The arbitration award issued by the Second Respondent under case number JMD011803 dated 27 September 2018, is reviewed and set aside only in respect of the amount of compensation awarded to the Applicant.

3. Paragraph 53.1 of the award is substituted with an order that the Third Respondent (City of Johannesburg Metropolitan Municipality), is ordered to pay to the Applicant, compensation in the amount equivalent to four months’ salary, calculated at his rate of remuneration as at the date of dismissal being 17 November 2017.

4. There is no order as to costs

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: J

Jabangwe, SAMWU Official

For the Third Respondent: S.B. Nhlapo, instructed by BM Kolisi INC Attorneys

[1] Act 66 of 1995, as amended

[2] Which provides: “11.2.7 A review application is by its nature an urgent application. An applicant in a review application is therefore required to ensure that all the necessary papers in the application are filed within twelve (12) months of the date of the launch of the application (excluding Heads of Arguments) and the registrar is informed in writing that the application is ready for allocation for hearing. Where this time limit is not complied with, the application will be archived and be regarded as lapsed unless good cause is shown why the application should not to be archived or be removed from the archive.”

[2] Which provides:

“11.2.7 A review application is by its nature an urgent application. An applicant in a review application is therefore required to ensure that all the necessary papers in the application are filed within twelve (12) months of the date of the launch of the application (excluding Heads of Arguments) and the registrar is informed in writing that the application is ready for allocation for hearing. Where this time limit is not complied with, the application will be archived and be regarded as lapsed unless good cause is shown why the application should not to be archived or be removed from the archive.”

[3] Sidumo and Another v Rustenburg Platinum Mines and Others (2007) 28 IJL 2045; [2007] 12 BLLR 1097; 2008 (2) SA 24; 2008 (2) BCLR 158 (CC)

[4] Fidelity Cash Management Service v CCMA and Others (Fidelity) [2008] 3 BLLR 197 (LAC) at paras 98 and 100

[5]See Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation and Arbitration and Others (JA 2/2012) [2013] ZALAC 28; [2014] 1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC) at para 20

[6] See South African Municipal Workers Union obo Mosomo v Greater Tubatse Local Municipality (JA 64/2019) [2020] ZALAC 53 (2 December 2020) at para 27

[7] (2015) 36 ILJ 1511 (LAC) at paras 19 - 22

[8] Supra

[9] See Toyota SA Motors (Pty) Ltd v Radebe & others (2000) 21 ILJ 340 (LAC) at 344C-F; Afgen (Pty) Ltd v Ziqubu (JA34/18) [2019] ZALAC 40; [2019] 10 BLLR 977 (LAC); (2019) 40 ILJ 2276 (LAC), where it was held; “[25] The primary issue is that because the respondent’s dismissal was found to be substantively unfair, she was entitled, in terms of s193(1)(a) to reinstatement or to re-employment in terms of 193 (1)(b). There has to be extraordinary reason to deviate from such relief and only so if s193(2) comes into play. The conduct of the employee plays a crucial role where reinstatement or re-employment is refused notwithstanding there being no grounds for dismissal. Thus for example in the matter of Edwin Maepe v CCMA and Another although the employee’s dismissal was found to be unfair, this Court refused to reinstate him because it found it was impracticable for the employee to reinstate or re-employ Mr. Maepe who given false testimony under oath. Mr. Maepe was employed as a Commissioner at the CCMA and was required to arbitrate disputes and consider evidence presented to him under oath; having displayed total disregard for truthful testimony he could, this Court held, not be fit to continue as a Commissioner of the CCMA. [26] The other relevant matter is that of Glencore Holdings (Pty) Ltd and Another v Gagi Joseph Sibeko and Others (Glencore) where the Court properly accepted that an employee’s behaviour can be taken into account to determine if reinstatement or re-employment must be awarded, more particularly where an employee behaved offensively against the employer. Whether the bad behaviour was pre- or post-dismissal is irrelevant. This Court in Glencore stated that an employee’s behaviour no matter how abominable, cannot automatically deny her/him an award of reinstatement or re-employment. Consideration should be given to the degree of relationship contact between the employee and his superior. The lack of a “functional role” performed by the employee in Glencore including the lack of “functional rapport with the superiors” meant that they could be no real obstacle in the continued employment of the employee by Glencore notwithstanding the employee’s abominable behaviour.” (Citations omitted)

[9] See Toyota SA Motors (Pty) Ltd v Radebe & others (2000) 21 ILJ 340 (LAC) at 344C-F; Afgen (Pty) Ltd v Ziqubu (JA34/18) [2019] ZALAC 40; [2019] 10 BLLR 977 (LAC); (2019) 40 ILJ 2276 (LAC), where it was held;

“[25] The primary issue is that because the respondent’s dismissal was found to be substantively unfair, she was entitled, in terms of s193(1)(a) to reinstatement or to re-employment in terms of 193 (1)(b). There has to be extraordinary reason to deviate from such relief and only so if s193(2) comes into play. The conduct of the employee plays a crucial role where reinstatement or re-employment is refused notwithstanding there being no grounds for dismissal. Thus for example in the matter of Edwin Maepe v CCMA and Another although the employee’s dismissal was found to be unfair, this Court refused to reinstate him because it found it was impracticable for the employee to reinstate or re-employ Mr. Maepe who given false testimony under oath. Mr. Maepe was employed as a Commissioner at the CCMA and was required to arbitrate disputes and consider evidence presented to him under oath; having displayed total disregard for truthful testimony he could, this Court held, not be fit to continue as a Commissioner of the CCMA.

[26] The other relevant matter is that of Glencore Holdings (Pty) Ltd and Another v Gagi Joseph Sibeko and Others (Glencore) where the Court properly accepted that an employee’s behaviour can be taken into account to determine if reinstatement or re-employment must be awarded, more particularly where an employee behaved offensively against the employer. Whether the bad behaviour was pre- or post-dismissal is irrelevant. This Court in Glencore stated that an employee’s behaviour no matter how abominable, cannot automatically deny her/him an award of reinstatement or re-employment. Consideration should be given to the degree of relationship contact between the employee and his superior. The lack of a “functional role” performed by the employee in Glencore including the lack of “functional rapport with the superiors” meant that they could be no real obstacle in the continued employment of the employee by Glencore notwithstanding the employee’s abominable behaviour.” (Citations omitted)

[10] Case no: JA 41/2018 (Reportable) Delivered on 11 December 2019 at para 7

[11] Published by the Commission for Conciliation, mediation and Arbitration in terms of section 115(2)(g) of the Labour relations

Act, 1995 (Act N0. 66 of 1995) at paragraphs 130 - 135