South Africa: Labour Court

3. The third respondent was charged and found guilty of gross misconduct, contrary to the fiduciary duty of an employee, which breach of trust resulted in the irretrievable breakdown of the employment relationship. The conduct in question was the accusal of the applicant by the third respondent of bribery and unlawful conduct in respect of a trade union official.

4. The facts are briefly that the third respondent had said that the applicant bribed a Union official, Mr Lesudi, by giving him a car and laying the foundations for his house. In other words, providing him partly with accommodation in order to have matters go the applicant's way, in labour disputes as I understand it. In other words, from the third respondent's point of view the trade union official sold his members down the river, so to speak, for financial reward. It is indeed a very serious allegation.

5. The applicant and a co-employee were charged with these allegations. An independent chairperson, a Miss Nagel, found the third respondent guilty as charged, and the other employee in question not guilty.

6. The third respondent decided to challenge the fairness of his dismissal, and he referred the dispute to the Commissioner for Conciliation, Mediation and Arbitration ("CCMA"), where the arbitrator finally conducted an arbitration and found that dismissal was not the appropriate sanction. He reinstated the third respondent, despite a finding that the third respondent had made the allegations in question. The arbitrator remarked in his award, even though there was no evidence in support of that observation, that the issue could have been resolved by discussion rather than dismissal. The arbitrator also found that the applicant had applied discipline inconsistently. The other employee, who was charged with the third respondent, had not been dismissed.

7. The third respondent had a final written warning for insubordination and abusive behaviour, which was taken into account by Miss Nagel at the disciplinary hearing as an aggravating factor. The third respondent contends that the warning had expired by the time of the dismissal, but this allegation was not made during the disciplinary hearing or during the arbitration proceedings, and is not a factor which the arbitrator apparently took into account or dealt within any appropriate measure.

8. The applicant advanced the following grounds of review:

The arbitrator had committed misconduct in relation to his duties as arbitrator in terms of section 145(2)(a)(i) of the Act;

The arbitrator exceeded his powers as envisaged by section 145(2)(a)(iii);

The arbitrator committed a misconduct in relation to his duties as an arbitrator and exceeded his power in ordering the reinstatement, in that he did not comply with the directions of section 193(2) of the Act, and

He did not apply his mind to the facts, or to the evidence and law with regard to the question of what the employment relationship was tolerable following the misconduct in question.

9. Section 3 of the Act places a duty on commissioners of the CCMA, sitting as arbitrators, to apply their minds to the damage that may have been caused by an employee's conduct to the employment relationship, and between the employer and the trade union.

10. It appears that the arbitrator in his award did not have much regard to the employment relationship between the parties. By finding that the applicant had applied discipline inconsistently, is factually incorrect. The co-employee in question was found not guilty. It was not for the arbitrator to find that the employee was guilty and then decide on an appropriate sanction. Clearly he did not apply his mind in making this finding.

11. The third respondent had undermined the integrity of the union and his employer in front of other employees. He accused his employer of bribery and corruption. Even though the third respondent in open court and during argument denies that he has done that, I am bound to the arbitrators finding and that was that the third respondent indeed made these allegations. It also appears that the third respondent showed no remorse for his conduct or for making the allegations.

12. There was not a shred of evidence before the arbitrator from which he could infer, as he did, that the matter could have been resolved through discussion. Clearly the third respondent's conduct caused the continued employment relationship to become intolerable. It was not open to the arbitrator to force parties, who are so far apart, into an employment relationship with a reinstatement award.

13. In Volkswagen SA (Pty) Ltd v Brand NO and Others 2001 10 (LC) 9.5.3 BLLR, Landman J held that section 193 of the Act, which requires an arbitrator to order reinstatement or re-employment unless the circumstances surrounding the dismissal are such that continued employment would be intolerable, it does not contemplate that the commissioner may order reinstatement or re-employment where a dismissal is only procedurally unfair, as provided for in section 193(2)(d). The commissioner in that case misdirected himself as to the nature of the relief, which he could competently order, and that the commissioner exceeded his powers in making the reinstatement order. In so concluding, Landman J agreed with the argument on behalf of the applicant, that the peremptory terms of section 193 extends to subsections (a)-(d). Subsequently an arbitrator may not order reinstatement when one of the four conditions in subsections 2(a)-(d) is present. If there is clear evidence that a future employment relationship would be intolerable, reinstatement cannot be ordered.

14. There is a duty on an arbitrator to give due consideration to the nature of the employment relationship and whether it can continue or not when an allegation of bribery is made by one of the parties, which was not clearly done in this matter. Miss Nagel, chairperson of the disciplinary inquiry, testified to that effect, and her testimony was not disputed.

15. Mr Lesudi, the Union Official in question was outraged, and took up the cudgels on behalf of SACAAWU. Clearly these circumstances must have also affected the applicant, who is the third respondent's employer. It cannot be argued that because the words were uttered in a kitchen only and not in public (as the arbitrator reasoned), that it was not serious.

16. A union's standing should not be permitted to be undermined in this way in a workplace. It may be so, that the third respondent is entitled to be critical of the union in question, but there is a limit to the extent to which an employee may unjustifiably accuse his Union and employer. Much of the record reflects that the third respondent focussed mainly on how badly the union, (according to him), had of conducted itself.

17. The arbitrator adopted the attitude that the applicant (the employer) was merely caught up in the crossfire and had no valid to dismiss the third respondent. This is not so. Mr Lesudis wife worked in the kitchen as well. The situation could have led to unnecessary conflict or serious labour unrest. That was also the view of Miss Nagel.

18. In my view the arbitrator unduly made light of the situation, and it was not for him to do so. I have already demonstrated above where, in many respects, the arbitrator did not apply his mind to the evidence before him. In such circumstances I should interfere with the award. In my view it would serve no purpose to refer the matter back to the CCMA. I Will substitute the order of the commissioner with the following:

    1. The award dated 28 June 2000 under CCMA case number MP10268 is set aside.

    2. The dismissal of the third respondent was procedurally and substantively fair.

____________________

E. Revelas

ON BEHALF OF THE APPLICANT: MISS R ANDERSON

ON BEHALF OF THE THIRD RESPONDENT: In person