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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

 

Not Reportable

case no: JR 2053 / 20

In the matter between:

TRINITY TELECOMS (PTY) LTD                                                        Applicant

 

and

 

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION                                                      First Respondent

 

NYIKO MNGOMEZULU N.O.                                                             Second Respondent

 

PORTIA MNQANA                                                                             Third Respondent

 

Heard:           22 November 2022

 

Delivered:     3 May 2023

 

Summary:     CCMA arbitration proceedings – Review of proceedings, decisions and awards of arbitrators – Test for review – Section 145 of Labour Relations Act, 1995 – application of review test set out

CCMA arbitration proceedings – assessment of evidence by arbitrator –arbitrator reasonably and rationally considering and determining evidence – no case for review made out – award upheld on review

Dismissal – dishonesty – principles considered – no case of dishonesty made out – evidence not supporting case of dishonesty – no misconduct relating to dishonesty shown to exist – determination by arbitrator reasonable

Dismissal – procedural unfairness – findings by arbitrator relating to procedural fairness unsustainable on the evidence – no case of procedural unfairness established – determination by arbitrator that dismissal procedurally unfair unsustainable and reviewed and set aside – substituted with determination that dismissal procedurally fair   

Review application – arbitration award on substantive unfairness of dismissal not reviewable – no basis for dismissal of employee – relief of reinstatement properly and rationally awarded – outcome in terms of award upheld on review

JUDGMENT

SNYMAN, AJ

Introduction

 

[1]          In this matter, the applicant has brought an application to review and set aside an arbitration award made by the second respondent in his capacity as an arbitrator of the Commission for Conciliation, Mediation and Arbitration (CCMA), being the first respondent. This application has been brought in terms of section 145 of the Labour Relations Act[1] (LRA).

 

[2]          The events giving rise to the current application concerned the dismissal of the third respondent by the applicant, for misconduct. The third respondent challenged her dismissal by referring an unfair dismissal dispute to the CCMA. The third respondent was ultimately successful at the CCMA in challenging her dismissal by the applicant. The second respondent, as duly appointed CCMA arbitrator in this case, found that the dismissal of the third respondent by the applicant for misconduct was substantively and procedurally unfair, in an arbitration award dated 5 November 2020. The second respondent afforded the third respondent consequential relief in the form of a determination that she be reinstated by the applicant with retrospective effect to the date of her dismissal, with back pay amounting to R230 198.22, being an amount equivalent to nine months’ salary.

 

[3]          Dissatisfied with this arbitration award of the second respondent, the applicant launched its current review application on 7 December 2020. The arbitration award was received by the applicant on 5 November 2020, and therefore the applicant’s review application was brought within the six weeks’ time limit as contemplated by section 145 (1) of the LRA. This review application is thus properly before this Court for determination.

 

[4]          I will now turn to deciding the applicant’s review application, commencing with a summary of the relevant background facts.

 

The relevant background

 

[5]          The applicant conducts business in the telecommunications industry. The third respondent was employed by the applicant as a SIM administrator, having commenced employment with the applicant on 3 October 2017. It was common cause that the third respondent had been dismissed on 24 February 2020 on a charge of dishonesty and a breach of her duty of good faith towards the applicant.

 

[6]          As to the events giving rise to these misconduct allegations against the third respondent, it started when it was reported by a fellow employee of the third respondent, to a senior manager of the applicant, that in the course of December 2019, the third respondent had informed two of her fellow employees at the applicant that she had resigned from her employment with the applicant, when this was as far as the applicant was aware not the case. The applicant’s financial director then specifically asked the third respondent whether there was any truth to these allegations, and the third respondent answered, in an e-mail on 17 January 2020, that there was no truth to the allegations.

 

[7]          Now being faced with conflicting versions, the applicant proceeded to conduct an investigation and collect statements from the third respondent’s two fellow employees. It turned out that the two main proponents in the allegations against the third respondent was one Busisiwe Mthimkhulu (Mthimkhulu) and Ipuleng Maseko (Maseko). Mthimkhulu was employed by the applicant as technical support agent whilst Maseko was employed in sales support. They both confirmed in their statements that the third respondent had made these statements to them at the 2019-year end function on 20 December 2019, and that she said she resigned for a better paying job. They also reported that they had been told by the third respondent that the applicant was making a counteroffer to her so as to retain her services.

 

[8]          Both Mthimkhulu and Maseko stated that they were disappointed that the third respondent had lied to them about resigning when that was not true. They both felt they could not trust her any longer. Both these employees, now having the opportunity, raised complaints about the manner in which they felt they were treated by the third respondent, as well as the way she conducted herself. They contended that they were harassed / victimized by the third respondent. Maseko stated that she decided to distance herself from the third respondent. Mthimkhulu stated that she preferred working from home away from the third respondent. Both of them also intimated that there was tension in the office when the third respondent returned to work in January 2020, as they thought she would not be coming back.

 

[9]          The third respondent’s version was directly contradictory. She stated that she never informed Mthimkhulu and Maseko that she had resigned and there would be no reason for her doing so as she never resigned. According to the third respondent, what happened was a ploy designed by Mthimkhulu and Maseko, as well as the manager, Wayne Bedser (Bedser), to try and get rid of her, as they did not like her. According to the third respondent, she made it clear in her e-mail of 17 January 2020 that these allegations were all false. The third respondent also disputed that she ever victimised or harassed anyone and also contended these allegations were fabricated by Mthimkhulu and Maseko.

 

[10]       As far as the applicant was concerned, the third respondent had lied about resigning and then telling the aforesaid fellow employees that the applicant was making a counter offer to keep her. The applicant viewed this misconduct as serious, as it implied to fellow employees that the applicant was not paying good salaries, that she would be earning a higher salary than them, and this behaviour exhibited a lack of loyalty and a violation of trust. The applicant was also of the view that this conduct caused unwanted tension in the workplace and that harassment/victimization of employees by the third respondent had been brought forward. The applicant summarized all these contentions into a charge headed ‘gross dishonesty and breach of duty of good faith’, which was contained in a notice to attend a disciplinary hearing presented to the third respondent on 17 February 2020.

 

[11]       The disciplinary hearing was scheduled for 19 February 2020, however ultimately took place on 20 February 2020. The third respondent pleaded not guilty to the charge against her. It appears that a comprehensive disciplinary hearing was held on 20 February 2020, with Mthimkhulu and Maseko testifying in the hearing, as well as the third respondent. In a written finding made on 24 February 2020, the chairperson found that the third respondent was indeed guilty of the charge against her. After considering the issue of an appropriate sanction, the chairperson adopted the view that the trust relationship had been destroyed and he recommended the dismissal of the third respondent. She was then dismissed.

 

[12]       The third respondent, as touched on above, referred an unfair dismissal dispute to the CCMA on 20 May 2020. Because this referral was out of time, the third respondent applied for condonation. In a ruling dated 2 June 2020, the third respondent’s condonation application was granted by the CCMA. The matter was set down for conciliation on 18 June 2020 and remained unresolved. The dispute was referred to arbitration that same day and ultimately came before the second respondent for arbitration at the CCMA in Johannesburg, on 28 September and 23 October 2020.

 

[13]       In his arbitration award dated 5 November 2020, the second respondent considered the meaning of the word ‘dishonesty’ and decided that it involved an act or omission which entailed deceit. The second respondent also held that the principle of wilfulness is important in this context, and that all these elements must be proven by the applicant as employer on a balance of probabilities to establish the misconduct of dishonesty.

 

[14]       The second respondent appreciated that he was confronted with two mutually contradictory versions as to what transpired in December 2019 between the third respondent, Mthimkhulu and Maseko, as well as in respect of whether these two employees had been harassed / victimised by the third respondent.

 

[15]       In deciding which version to prefer, the second respondent considered three factors. Firstly, he held that Mthimkhulu and Maseko did not like the third respondent, to the extent that Mthimkhulu asked the applicant that she be allowed to work from home, and Maseko was disappointed when the third respondent came back to work in January 2020 and did not leave. It is clear from his award that the second respondent however preferred the version of the third respondent that she did not conduct herself as complained of by these two employees. Secondly, the second respondent made a credibility finding. He found the third respondent to be a sincere witness whose version was clear, logical and consistent throughout, whist he believed the testimony by Mthimkhulu and Maseko was influenced and tainted by their dislike of her.  And thirdly, he considered the third respondent’s version to be more probable.

 

[16]       According to the second respondent, the applicant did not manage to prove the existence of dishonesty on a balance of probabilities. The second respondent believed that the applicant had decided to enter the fray between two groupings of employees, and took sides with one group against the other. The second respondent however went further, and held that even if it was true that the third respondent had told Mthimkhulu and Maseko that she resigned and that a counter offer was being made by the applicant, whilst this was not true, this was not dishonesty vis-à-vis the applicant as contemplated by the charge against her. In a similar vein, the second respondent also decided that the applicant failed to prove that the third respondent violated her duty of good faith towards the applicant.

 

[17]       The second respondent also decided that the dismissal of the third respondent was procedurally unfair. He held that the third respondent was simply called into a meeting and presented with a letter terminating her employment. According to the second respondent, the third respondent was not given an opportunity to state her case in response to the allegations against her.

 

[18]       The second respondent concluded that the dismissal of the third respondent was substantively and procedurally unfair for the above reasons. He then directed that third respondent be retrospectively reinstated to the date of her dismissal, with back pay amounting to R230 198.22. It is this award that gave rise to the current review application.

 

The test for review

 

[19]       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]. This means that 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 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. In Herholdt v Nedbank Ltd and Another[5] 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.’

 

[20]       In sum, applying the correct review test has a logical chronology. First, it must be considered if there a failure or error on the part of the arbitrator, Second, and 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. 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.[6]

 

[21]       Against the above principles and test, I will now proceed to consider the applicant’s application to review and set aside the arbitration award of the second respondent.

 

Grounds of review

 

[22]       The applicant’s case for review must be made out in the founding affidavit, and supplementary affidavit.[7] 

 

[23]       Even though the grounds of review as set out in the applicant’s founding affidavit are rather lengthily articulated, a proper consideration of these grounds ultimately boils down into four straight forward grounds of review. The first ground of review is that the second respondent came to an unreasonable conclusion, because he failed to account for critical facts, made improper credibility findings, and ignored pertinent probabilities. The second ground of review is that the second respondent misconstrued and failed to properly appreciate the nature of the charge against the third respondent, and that what she had done was indeed dishonest. Thirdly, the second respondent did not appreciate that the allegations of victimization / harassment against the applicant only arose in 2020 after the issue of her alleged resignation had come to the fore. And finally, the applicant contends that the second respondent committed a reviewable irregularity in failing to appreciate that a restoration of the working relationship was intolerable.

 

[24]       In the supplementary affidavit filed by the applicant in terms of Rule 7A(8)(a), the applicant effectively shifted a lot more of the focus of the case from that of dishonest conduct by the third respondent, to a case of the third respondent causing disharmony in the workplace and creating a toxic working environment, which was evident from the evidence of Mthimkhulu and Maseko relating to how the third respondent conducted herself towards them. According to the applicant, the second respondent failed to have proper regard to this evidence, and to the consequence that this conduct destroyed the trust relationship, as well as negated the possibility of any reinstatement of the third respondent. The applicant also adds as a ground of review in the supplementary affidavit that the second respondent’s finding of procedural unfairness ran counter to the evidence before him, and constituted a gross irregularity.

.

Analysis

 

[25]       First things first, being the issue of procedural unfairness. In this regard, I am satisfied that the applicant’s case on review has substance. I must confess that I have difficulty in understanding how the second respondent could come a conclusion that the third respondent was simply called into a meeting and given a letter of dismissal. Such a conclusion flies directly in the face of the documentary evidence, which shows the existence of a notice to attend a disciplinary hearing, a comprehensively minuted disciplinary hearing, as well as a written finding. There is even on the documents a request by the third respondent for an internal appeal. Despite the second respondent recording in his award that the third respondent was not given an opportunity to state her case in an internal disciplinary hearing, the third respondent in fact conceded in the arbitration that she did have a proper opportunity to state her case. Overall considered, the second respondent’s finding that the dismissal of the third respondent was procedurally unfair is unsustainable on review, and constitutes an unreasonable outcome considering the evidence before him. This finding of the second respondent falls to be reviewed and set aside, and substituted with a determination that the dismissal of the third respondent by the applicant was procedurally fair.

 

[26]       I now turn to the issue of substantive unfairness. The case is really a simple one. On the one hand, there is the version presented by Mthimkhulu and Maseko that the third respondent had informed them that she had resigned and would be leaving the applicant in the new year, and that the applicant was considering making a counter offer to retain her. On the other hand, there is the version of the third respondent that she made no such utterances to Mthimkhulu and Maseko. What is undisputed is when asked by the applicant about the events, the third respondent persistently disputed having made such statements. Only one version can be true. It is clear from the second respondent’s arbitration award that he appreciated that he needed to make probability and credibility findings in order to decide which of these two conflicting versions to prefer. In this regard, the second respondent properly referred to the judgment in SFW Group Ltd and Another v Martell et Cie and Others[8]. As said In Nemadzivhanani v University of Venda and Others[9]: ‘… Factual disputes are resolved by coming to a conclusion on the disputed issues through a court making findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities …’. The second respondent decided that version of the third respondent was more probable. He held that it was likely that Mthimkhulu and Maseko had not been truthful about what the third respondent had said because, considering the evidence as a whole, it is clear they did not like her, and this dislike influenced their evidence. The second respondent also found the third respondent to be more credible, as she appeared sincere, and her version was clear, logical and consistent throughout.  

 

[27]       Insofar as the grounds of review of raised by the applicant may include an attack on the credibility findings made by the second respondent as set out above, it must be said that this Court should be loath to interfere with credibility findings of arbitrators. As held in Standerton Mills (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others:[10]

 

‘... Credibility issues are indeed difficult to determine in motion proceedings such as these. The commissioner is undoubtedly in a better position to make a finding on this issue. …’

 

[28]       It is my view that this Court should only interfere with credibility findings made by CCMA arbitrators, if the evidence on the record before the Court shows that the credibility findings of the arbitrator are entirely at odds with or completely out of kilter with the probabilities and all the evidence actually found in the record and considered as a whole.[11] A proper conspectus of the record in casu simply does not establish a basis for interference on these grounds. I must say that having had regard to the testimony of Mthimkhulu and Maseko as contained in the transcript, it is apparent that they indeed had a dislike for the third respondent. The two of them were also friends, and were certainly complaining about the third respondent to one another. Contrary to what the applicant has said in its grounds of review, Mthimkhulu in her testimony stated that her problems with the third respondent started long before the events in December 2019 / January 2020.  Overall considered, the bulk of the testimony of Mthimkhulu and Maseko was devoted to expressing all the problems they had with the third respondent throughout, the adverse feelings they had about her, and that all these problems and issues were resolved when she was dismissed. A pertinent example is the statement made by Maseko under cross examination that generally speaking, there was no peace for ‘her’ in working with the third respondent and that she was not enjoying working with the third respondent. The finding of the second respondent to the effect that their dislike for the third respondent motivating their testimony is, in my view, reasonable and unassailable.

 

[29]       I am satisfied that the second respondent’s assessment of the credibility of the third respondent, considering her testimony as reflected in the transcript, is reasonable and supported by the transcript. The testimony of the third respondent emerged virtually unscathed from cross-examination. There is simply no justified basis to interfere with these credibility findings of the second respondent. It may be added that the third respondent, despite representing herself, managed to properly put the pertinent gist of her entire version to Mthimkhulu and Maseko under cross examination to respond to. In this regard, it was specifically raised by the third respondent with Mthimkhulu as to what led to her deciding to raise the issue of the third respondent’s alleged resignation with the manager (Louise), which Mthimkhulu could not answer. As opposed to the third respondent, Mthimkhulu did contradict herself in some respects, and was quite argumentative. Maseko’s evidence also contained some contradictions, she was unable to confirm dates of events and certain events referred to by Mthimkhulu, and some of her answers were evasive. In short, and on the record, the third respondent was a better witness.

 

[30]       In the end, little fault can be found in the second respondent, as a general proposition, preferring the evidence of the third respondent over the applicant’s two witnesses. It is the second respondent’s job to do this, in the arbitration proceedings, where he was able to observe the witnesses, and listen to their live testimony. The second respondent made motivated credibility findings, which are reasonable, if the record is properly considered. Once the evidence of the third respondent prevails, then she could not have been dishonest, as she never made the utterances she had been accused of, to Mthimkhulu and Maseko. As such, the misconduct with which the third respondent has been charged has not been proven.

 

[31]       But even if the version of the applicant was to be accepted, the question simply remains – was the third respondent dishonest? The second respondent found that she was not, because she showed no wilful intention to deceive her employer, even if the applicant’s version as it stands was to be accepted. In Department of Education: Mpumalanga Province and Others v Mthala NO and Others[12] the Court appositely said: ‘… Dishonest intent is a matter to be determined by the evidence. …’. What constitutes dishonesty was described in Nedcor Bank Ltd v Frank and Others[13], where the Court held that: ‘Dishonesty entails a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently. …’.[14] The Court in Nedcor Bank went further and referred with approval to the Canadian case of Lynch & Co v United States Fidelity & Guaranty Co  [1971] 1 OR 28 (Ont SC) where it was held that: ‘… "Dishonest" is normally used to describe an act where there has been some intent to deceive or cheat. To use it to describe acts which are merely reckless, disobedient or foolish is not in accordance with popular usage or the dictionary meaning.'

 

[32]       The LAC in SA Society of Bank Officials and Another v Standard Bank of SA and Others[15] more recently considered the aforesaid ratio in Nedcor Bank and came to the following conclusion:

 

‘Deceitfulness can manifest itself in various forms, which include providing false information, non-disclosure of information, pilfering, theft and fraud. The fiduciary duty owed by an employee to the employer generally renders any dishonest conduct a material breach of the employment relationship, thereby justifying summary dismissal …’

 

[33]       The Court in SA Society of Bank Officials supra further considered the notion that in order for an employer to successfully show that the employee was dishonest, it had to prove that there was a dishonest intention or an intention to deceive on the part of the employee. The Court adopted the view that: ‘Dishonesty as an aspect of misconduct is a generic term embracing all forms of conduct involving deception …’,[16] and concluded that:[17]

 

‘The courts have frequently upheld dismissal for dishonesty. However, it is not an invariable rule that offences involving dishonesty necessarily incur the supreme penalty of dismissal. The facts of every case must be assessed and the mitigating features taken into account. …’

 

[34]       What is then the best case scenario for the applicant, on the facts, as asserted by the applicant itself? The answer is nothing good. Accepting for the purposes of argument that what the applicant says happened in December 2019 between the three employees did indeed happen, does that even show an intention on the part of the third respondent to deceive the applicant. I have difficulty in understanding how it can be said this was the case. The third respondent did not tell her employer that she had resigned and was looking at a counter offer to stay. She told that to her fellow employees. The third respondent was not seeking any advantage from the applicant as her employer in making these representations, as there is no case nor evidence that this was somehow part of some stratagem to disadvantage or prejudice the applicant as her employer or even aimed at her employer.[18] On the evidence, there was absolutely no motive attached to the third respondent where it came to making such averments. I believe that even if it can be said she did this, it was at best some kind of grandstanding or boasting towards her fellow employees to puff up her own feathers and show she was important and valuable to extent that she was readily employable by another employer. These kinds of statements may be, as described in Nedcor Bank supra, ‘foolish’ or even ‘reckless’ conduct, but it is certainly not dishonest. As reasoned in Austin-Day v Absa Bank Ltd and Others[19], where the Court found that dishonesty did not exist:

 

‘There is no evidence that the appellant acted in bad faith or that by her actions, she exposed the bank to any material risk …’

 

[35]       In simple terms, where the third respondent may lie to her fellow employees about her status or position or the like, it does not follow that she was dishonest towards the applicant as her employer, in the sense that it constitutes misconduct vis-à-vis the applicant as her employer. The applicant has to show more. The applicant must prove a nexus between these lies, and a willingness on the part of the third respondent to deceive it as her employer. In simple terms, it must be aimed at the applicant as her employer. This was simply not proven in the circumstances. Even accepting for the purposes of argument that the third respondent did make the utterances to her fellow employees and that untruthfully disavowed the same, there was also no case that this was done with the intention to mislead the applicant itself. Further, no evidence was presented by the applicant that the third respondent contravened a rule or policy in existence at the applicant in a deceitful manner in making such kind of utterances to fellow employees.[20] Comparable is the following dictum in DRS Dietrich, Voigt and Mia t/a Pathcare v Bennett NO and Others[21] where the Court said:

 

‘One troubling aspect of the alleged transgression is that nowhere on the record before us is there any indication that there was a rule which precluded the employee from claiming for his lunch breaks. Mr Lennox, for Pathcare, was hard-pressed to show us the existence of the rule in issue. Instead, he referred us to one of the responses by the employee to a question posed to him during the arbitration where he said: ‘We [the employee and his manager] argued until eventually a mutual agreement was met where I could, where we both agreed on all overtime claims over eight hours will be reduced by 60 minutes whether I went to lunch or not.’ This does not answer the question whether a rule existed prohibiting claims for the lunch breaks …’

 

[36]       In my view, the second respondent got it right where he held that where an employee expresses an intention to resign to fellow employees but then does not, it is not misconduct and certainly not dishonesty. Considering the relevant principles of law as summarized above, as applied to the facts even as asserted by the applicant, the second respondent’s findings in this regard are simply not open to legitimate criticism on review, and would comfortably conform to what would be considered to be a reasonable outcome, based on those facts. As said in Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others[22]:

 

‘…. the reviewing court must consider the totality of evidence with a view to determining whether the result is capable of justification. Unless the evidence viewed as a whole causes the result to be unreasonable, errors of fact and the like are of no consequence and do not serve as a basis for a review.’

 

[37]       In sum, the approach, reasoning and ultimate finding of the second respondent is quite comparable with the following dictum in Toyota SA Motors (Pty) Ltd v National Union of Metalworkers of SA on Behalf of Njilo and Others[23] where the Court had the following to say:

 

‘The next ground of review concerns the arbitrator’s factual findings regarding Mr Njilo’s knowledge of the leave policy and his relationship with his nephew. Here again, other than the bald claim that the arbitrator misdirected herself in assessing the evidence, there is no demonstration of a material misdirection. The award discloses the reasoning of the arbitrator on these matters, the reasoning clearly takes into account the conflicting versions that served before the arbitrator and I see nothing overtly illogical or irrational in the reasoning. In other words, the arbitrator’s reasons provide a reasonable ‘route’ leading towards the conclusion, and it must follow that the decision is one that could have been reached (and in fact was) made by a reasonable decision maker.’

 

[38]       Almost as a side issue, the alleged victimization of Mthimkhulu and Maseko by the third respondent was thrown into the mix in the disciplinary hearing. But it escalated to a lot more in the arbitration. However, and even considering the evidence in the arbitration, there was no substance to these allegations of alleged victimisation / harassment committed by the third respondent. The highwater mark of the evidence was bald allegations of the third respondent being a ‘ringleader’ of a group of employees victimizing them and ganging up on them. However, the particulars of this alleged victimization were sparse and lacking in sufficient specificity so as to establish misconduct.

 

[39]       Mthimkhulu testified that she overheard the third respondent talking loudly on the phone to someone else using words to the effect that they (referring to herself and Maseko) were out to get her and would never win, and were jealous of her and should stop hating her. This event cannot establish victimization, especially considering that Mthimkhulu lent out her ears to a private conversation of the third respondent with a third party and that these comments were not directly addressed to Mthimkhulu by the third respondent. There were also references by Mthimkhulu to incidents with the air conditioner being switched on an off by the third respondent, which she said was done to ‘wind her up’, as well as the third respondent and her friends talking about her in front of her so she could hear, and the third respondent being rude to her. Mthimkhulu contended that her problems with the third respondent existed before the actual incidents giving rise to this case.

 

[40]       Maseko’s evidence with regard to particulars of alleged victimization is even more vague. There were general statements as to it being a ‘progressive thing’ relating to the third respondent’s laugh, her accusing employees of ‘things’ and that she would walk ‘up and down’ the office. She also referred to comments being made between the third respondent and her friends about other employees. However, Maseko never testified that she herself felt victimised by the third respondent, and conceded that her knowledge of victimisation was based mostly upon discussions between her and Mthimkhuku. According to Maseko, her dislike of the third respondent caused her to simply distance herself from the third respondent.

 

[41]       All the above incidents and circumstances can hardly be seen to constitute harassment or victimisation. It is the kind of situation that can and should be readily addressed in grievance proceedings facilitated by the applicant’s HR department. But that would necessitate Mthimkhulu and Maseko actually bringing a grievance forward. On the evidence, it was clear they never did, and even decided not to. In such circumstances, it is in my view rather opportunistic to raise individual past events in the course of a disciplinary process about the third respondent’s alleged dishonesty towards the applicant to accuse the third respondent of acts of victimization and harassment, when it is too late to try and address it with the view to first attempt to remedy the same. To simply justify dismissal of the third respondent on this basis would not be fair.

 

[42]       In my view, and on the evidence, it is clear that Mthimkhulu and Maseko are not innocent in all of this. I am convinced that this was a case where there was animosity between two groups of employees in the applicant, with the third respondent in one group and Mthimkhulu and Maseko in the other group. The second respondent got it right where he said that the applicant decided to pick sides with one group, instead of rather trying to get everyone together in a firm attempt to resolve this and weed this kind of situation out of the workplace. There was never a justified case of victimization and harassment by the third respondent of Mthimkhulu and Maseko, and the second respondent’s failure to make any finding in this regard resorts well within the bands of a reasonable outcome.

 

[43]       In summary, the finding of the second respondent that the applicant failed to prove that the third respondent committed misconduct constitutes a reasonable outcome based on the evidence properly before him as a whole, and is unassailable on review. As a general proposition, I believe what existed in this case was internal strife between groups of employees in the applicant, which should have been best resolved by way of a proper consultation with all employees involved, and if necessary, a formal grievance process, where the groups of employees could be told in no uncertain terms to stop this bickering or face disciplinary action. But instead, the applicant picked a side, and grounded its case on questionable testimony of two employees who undoubtedly had an axe to grind with the third respondent, did not want to work with her, and wanted her gone. And finally, in any event, what the third respondent did, even on the applicant’s own version, did not constitute dishonesty on her part of the kind that would compromise the employment relationship and constitute serious misconduct. The arbitration award of the second respondent must therefore be upheld on review.

 

[44]       The applicant made much of the destruction of the trust relationship. But if no misconduct can be proven in the first place, the issue of the break down in the trust relationship as a consideration does not arise. The existence or not of the trust relationship is only a relevant consideration if misconduct is proven to exist in the first place. Otherwise, an employee could be dismissed simply because an employer decides that it no longer trusts the employee, despite the employer not being able to show that the employee did anything wrong. However, and where it comes to the issue of an appropriate remedy to be afforded to an employee where an arbitrator does find the dismissal is substantively unfair in the sense that misconduct was not proven, the issue of whether a continued employment relationship would be intolerable would indeed still need to be considered. This is because of the provisions of section 193(2)(b) of the LRA.[24] In Booi v Amathole District Municipality and Others[25] the Court held:

 

‘… It cannot be said then, that just because the charges of misconduct could not be proven, the intolerability of a continued employment relationship could not still be examined. …’

 

[45]       In deciding the issue of relief, the second respondent held that there was no reason not to reinstate the third respondent. I agree. The applicant made out no case that reinstatement was not appropriate as a result of a continued employment relationship being intolerable.[26] The testimony presented by Bester, who testified for the applicant, only related to the issue of the trust relationship in the context of dismissal as an appropriate sanction, accepting that the third respondent did commit the misconduct with which she had been charged. There was no case made out or testimony presented by Bester that reinstatement would not be appropriate as a remedy, should it be found that the dismissal on the third respondent was substantively unfair. The simple point is that reinstatement is the primary remedy for a substantively unfair dismissal, absent exceptional circumstances as contemplated by section 193(2), which the applicant must prove.[27] As held in Booi supra:[28]

 

‘It is plain from this court’s jurisprudence that where a dismissal has been found to be substantively unfair, ‘reinstatement is the primary remedy’ and, therefore, ‘[a] court or arbitrator must order the employer to reinstate or re-employ the employee unless one or more of the circumstances specified in s 193(2)(a)-(d) exist …’

 

[46]       Finally, the second respondent exercises a discretion when deciding the issue of relief, which makes it even more difficult to successfully challenge the same on review. As a whole, there is simply no basis upon which to upset the second respondent’s award of reinstatement in this case, and the manner in which he exercised his discretion. Again, Booi supra provides the opposite answer, where it was said:[29]

 

‘Having said all of the above, where an arbitrator acting in terms of s 193(2) has considered all the evidence, found that it does not establish intolerability, and decided to order the primary remedy of reinstatement, then the high bar implied by s 193(2)(b) dictates that the arbitrator’s decision should not readily be interfered with by a review court. …’

 

Conclusion

 

[47]       Therefore, I conclude that the second respondent’s finding that the dismissal of the third respondent was substantively unfair must be sustained and there simply exists no legitimate basis for such finding to be reviewed and set aside. In my view, the outcome the second respondent arrived at in this regard constitutes a reasonable outcome, considering the evidence as a whole and the applicable principles of law. The relief of reinstatement afforded to the third respondent is equally unassailable on review, and constitutes a legitimate exercise of his discretion in respect of the issue of relief.

 

[48]       The second respondent’s finding of procedural unfairness is however not sustainable, and is at odds with the evidence. That finding indeed falls to be reviewed and set aside, and substituted with a determination that the dismissal of the third respondent by the applicant was procedurally fair. Unfortunately however, this finding will have no impact of the ultimate relief the third respondent is entitled to, and the fact that her dismissal was substantively unfair.

 

Costs

 

[49]       In terms of section 162 of the LRA, I have a wide discretion where it comes to the issue of costs. The Constitutional Court has provided some guidance as to how this discretion is to be exercised. In Union for Police Security and Corrections Organisation v SA Custodial Management (Pty) Ltd and Others[30] that Court said:

‘In the labour context, the judicial exercise of a court’s discretion to award costs requires, at the very least, that the court must do two things. First, it must give reasons for doing so and must account for its departure from the ordinary rule that costs should not be ordered. Second, it must apply its mind to the dictates of the fairness standard in s 162, and the constitutional and statutory imperatives that underpin it …

[50]       In this case, and considering the dictates of fairness to both parties, I can see no legitimate reason to depart from the general principle that costs do not follow the result in employment disputes before this Court.[31] Therefore, I consider it to be in the interest of fairness that no costs order should be made.

[51]       In the premises, I make the following order:

 

Order

 

1.            The arbitration award of the second respondent, arbitrator N Mngomezulu, dated 5 November 2020 and issued under case number GAJB 7782 - 20, to the effect that dismissal of the third respondent by the applicant is procedurally unfair, is reviewed and set aside, and substituted with an award that the dismissal was procedurally fair.

 

2.            Save for the relief granted in terms of paragraph 1 of this order, the applicant’s review application is dismissed.

 

3.            In particular, the arbitration award of the second respondent, arbitrator N Mngomezulu, dated 5 November 2020 and issued under case number GAJB 7782 - 20, to the effect that dismissal of the third respondent by the applicant is substantively unfair, and the relief afforded to the third respondent in such award, is upheld.

 

4.            There is no order as to costs.

 

S. Snyman

Acting Judge of the Labour Court of South Africa

 

Appearances:

For the Applicant:	Advocate J D Withaar
Instructed by:	Pretorius Davies Inc Attorneys
For the Third Respondent:	Mr F C Hlongwa of Mdabe Hlongwa Attorneys

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