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THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

 

Not Reportable

Case no: PR171/23

 

In the matter between:

 

ANDILE SOMI                                                                                Applicant

 

and

 

TRANSNET BARGAINING COUNCIL                               First Respondent

 

CATHERINE WILLOWS N.O                                        Second Respondent

 

TRANSNET NATIONAL PORTS AUTHORITY                  Third Respondent

 

Heard:        11 July 2024

 

Delivered:    This judgment was handed down electronically by emailing a copy to the parties. The 2 October 2024 is deemed to be the date of delivery of this judgment.

 

Summary:

 

JUDGMENT

 

 

JESSOP, AJ

 

Introduction

 

[1]             This is an application for the review of the arbitration award issued by the second respondent, Catherine Willows, acting under the auspices of the Transnet Bargaining Council in the capacity of a pre-dismissal arbitration as per the provisions of section 188(A) of the Labour Relations Act[1] (LRA).

 

Historical Background

 

[2]       In terms of the application, the applicant seeks that this Court review, correct and/or substitute the award handed down by the second respondent under the auspices of the Transnet Bargaining Council, the first respondent, in terms of which the second respondent found that the appropriate sanction to be implemented against the applicant, Mr Andile Somi, is that of dismissal.

 

[3]       The applicant seeks that those respondents who oppose the application should pay the costs of this application.

 

[4]        Neither the first, nor second respondent have opposed the application. The Transnet National Ports Authority, being the third respondent, has opposed the application.

 

[5]         The matter has a very interesting history.

 

[6]       The applicant was employed by the third respondent as its Employee Relations Manager on 1 April 2012.

 

[7]        On 18 October 2019, as the applicant was reporting for work at Port Admin, his workplace, he was required by Mr Mosipha, a member of the security personnel who was conducting search procedures, to step out of his vehicle and open the vehicle’s boot.

 

[8]        The applicant explained to Mr Mosipha that owing to serious injuries he sustained in a motor vehicle collision, alighting from a motor vehicle had become difficult.

 

[9]       When Mosipha insisted that the applicant alight from his motor vehicle, the applicant informed him that owing to his condition, security guards searched his vehicle without requiring him to step out of it.

 

[10]         The arrangement was communicated to the Security Operations Manager who was, at that point, aware of it.

 

[11]         The applicant asked Mosipha to call the Operations Manager to confirm the arrangement but he refused and insisted that the applicant step out of his vehicle.

 

[12]         The exchange between the applicant and the security delayed another employee who needed access to his workplace.

 

[13]         Another security guard allowed the employee to enter through the exit gate.

 

[14]         The applicant then tailgated the fellow employee and forced his entrance through the exit gate whilst not having permission to enter the premises.

 

[15]         On 4 March 2020, just short of five months later, the third respondent served a notice upon the applicant summonsing him to a pre-dismissal arbitration as envisaged in section 188(A) of the LRA to answer the following charges:

 

“Charge 1: Gross insubordination – on or about the 18^th of October 2019, you refused to subject yourself to undergo substance screening which was breach of clause 5.4.2 of the Transnet Substance and Abuse policy.  Your conduct is further a breach of 6.6.3(2) of the Transnet Disciplinary Code and Procedure.

 

Charge 2: Gross insubordination – on or about the 18^th of October 2019, you refused to be searched at the access control point of the Port administration security gate which is in breach of clause 4.2.8.2(e) of the Transnet National Ports Authority Security policy.

 

Charge 3: Gross negligence – on or about the 18^th of October 2019, you grossly neglected to comply with the access control procedure when entering through the exit gate by tail-gating another vehicle at the Port administration security gate without permission.  Your actions are a breach of clause 6.6.3(4) of the Transnet Disciplinary Code and Procedure.

 

Charge 4: Failure to conform to safety standards – on or about the 18^th of October 2019, you failed to conform to safety standards when entering the Port administration security gate through the exit point, tail-gating another vehicle which caused the injury of a security officer, Malose Mosipha, who was manning the access control gate.  Your actions are a breach of clauses 6.6.3(17) and 39 of the Transnet Disciplinary Code and Procedure.

 

Charge 5: Abusing position of authority – on or about the 18^th of October 2019, you abused your position when refusing to comply to the instruction issued to you by Mr Malosi Mosipa, a junior employee, when seeking your co-operation at the gate, when you responded by stating :

“andizoyenza lonto (I am not going to do that)”.  Your conduct is in breach of clause 6.6.3(27) of the Transnet Disciplinary Code and Procedure.

 

[16]         The second respondent was appointed to arbitrate the pre-dismissal arbitration. The second respondent found the applicant guilty of all charges, except for charge no. 1. She issued a sanction of dismissal. The applicant then took that award on review.

 

[17]         The review application was heard on 6 October 2022 and judgement, in terms of that review application was delivered by the above Honourable Court on 9 December 2022.

 

[18]         In terms of her judgement, her Ladyship Lallie, reviewed and set aside the award issued by the second respondent.

 

[19]         In doing so, she vitiated the findings of guilt relative to charge 2, 4 and 5 and made the following order:

 

“[1]     The pre-dismissal award issued by the second respondent under case number TCR 014027 dated 23 November 2020 is reviewed and set aside.

 

[2]      The matter is remitted to the first respondent to the extent that the second respondent is directed to determine a fair sanction for the misconduct she found the applicant guilty of in charge 3 of the charges which were preferred against the applicant.

 

[3]      The applicant and third respondent may, if they wish, address argument at the hearing on the issue of sanction, with reference to the record of the pre-dismissal arbitration proceedings.

 

[4]      There is no order as to costs.”

 

[20]         As a consequence of the process, the applicant was thus not guilty of charge 1, as per the arbitrator’s award and subsequently found to be not guilty of charges 2, 4 and 5 as per judgement of the Labour Court.

 

[21]         By virtue of the provisions of paragraph 2 of her Ladyship’s judgement or order, the respondent was then enjoined to determine:

 

“A fair sanction for the misconduct she found the applicant guilty of in charge 3 of the charges which were preferred against the applicant.”

 

[22]         In those circumstances, the second respondent was called upon to deliberate on a fair sanction for and in respect of the subject matter of charge 3.

 

[23]         The matter served before the second respondent in terms of section 188(A) of the LRA and per judgement of the Labour Court on 27 February 2023.

 

[24]         The second respondent then issued a further award on 7 March 2023 in terms of which award she finds that the appropriate sanction for contravention of charge 3 is that of dismissal.

 

[25]         The applicant then returns to this Court by way of application to review, correct and substitute the award handed down by the second respondent in relation to which the second respondent found that the appropriate sanction to be implemented against the employee (the applicant) is that of dismissal.

 

[26]         It is against this backdrop that this review application must now be determined.

 

The Review

 

[27]         At the outset of the argument, the applicant’s representative urged this Court to find that the effect of Judge Lallie’s judgement was to bind the second respondent into issuing a sanction short of dismissal.

 

[28]         The third respondent’s representative opposed the submission and indicated that the effect of Judge Lallie’s judgement was not to straitjacket the second respondent into issuing a sanction, short of dismissal.

 

[29]         I disagree with the applicant’s representative and agree with the third respondent’s representative, in part only.

 

[30]         Firstly, if the Honourable Judge wanted to limit the second respondent to a sanction short of dismissal, then her order would have said so or she would have determined the matter on that basis, on her own.

 

[31]         Secondly, it would be improper for the Honourable Judge to have bound the second respondent in the exercise of her discretion relative to the issue of sanction.

 

[32]         I thus agree that the effect of the Judgement was not to straitjacket the second respondent into a sanction, short of dismissal.

 

[33]         However, I part ways with the third respondent’s representative when it is suggested that the second respondent ought not to have had regard to the change in the landscape in the sense that the effect of the Judgement was that the applicant was ultimately found not guilty of four of the five charges.

 

[34]         The context against which the second respondent ought to have considered sanction was with due and reasonable regard to the fact that he was not guilty of four of the five charges and what that meant in relation to the facts of the matter and the landscape against which the second respondent was to consider the sanction.

 

[35]         The charge and an appropriate sanction could thus not be determined entirely apart and separate from the fact that he had been found not guilty of four of the five charges.  Implicit in the Labour Court’s findings were that the applicant did not abuse his authority and was not insubordinate.

 

[36]         The rendering of not guilty in four of the five charges was at the very least an important factor to be considered by the second respondent.

 

[37]         The essence of the review application is that the second respondent arrived at a decision that a reasonable decision maker could not reach.

 

[38]         In this regard, the applicant contends that the second respondent failed to apply her mind to material and relevant evidence.

 

[39]         The main contention is that the second respondent failed to take into consideration all the circumstances surrounding the incident and emphasised instead the alleged lack of remorse, seriousness of misconduct, destruction of the trust relationship and the position and functions of the applicant.

 

[40]         The applicant contends that the second respondent did not have regard to the applicant’s discomfort and disability emanating from the motor vehicle collision, the seemingly protocol that the applicant was excused from alighting his vehicle at security checks given his disability/discomfort and the unreasonable behaviour of the third respondent’s security guard in relation to the applicant’s stance that he need not alight the vehicle but instead open his boot and vehicle for inspection.

 

[41]         The applicant attacks the second respondent’s finding that he lacked remorse.

 

[42]         In this regard:

 

42.1       The applicant contends that he did express remorse by expressing his regret on what had occurred and that he continued to express his remorse during the arbitration.

 

42.2       The applicant contends that the second respondent failed to draw a distinction between an act of remorse and an explanation for the incident.

 

42.3       The applicant contends that he behaved in the manner that he did because he felt disrespected and humiliated by the security guard in circumstances where the applicant had an expectation that he would not have to alight the vehicle given his difficulties and discomfort occasioned by his bodily injuries.

 

[43]         In turn, the respondent’s representative submitted that the second respondent’s decision is amply reasonable and ‘unassailable’.

 

[44]         The third respondent’s representative submitted that the second respondent was correct to conclude and/or reasonable to conclude that the applicant did not show remorse.

 

[45]         In principle, the third respondent’s representative submitted that the applicant stopped short of acknowledging his wrong-doing and therefore cannot enjoy the process of rehabilitation in terms of progressive discipline.

 

[46]         As to the seriousness of the misconduct, the third respondent submitted that the applicant should not have breached the security measures in the manner that he did.

 

[47]         As to the seriousness of the misconduct, the commissioner was reasonable to conclude that dismissal was the appropriate sanction.

 

[48]         As to relationship of trust, the submission is made that the arbitrator applied her mind reasonably and reached a conclusion which any other arbitrator could have reached.

 

[49]         The third respondent’s representative also submitted that the arbitrator was correct in recording that the applicant’s position as manager should have made him beyond reproach in his conduct and the second respondent was reasonable in finding that dismissal was appropriate as he was a senior employee at the workplace.

 

Applying the Law

 

[50]         The test to be applied in review matters is well known and has been the subject matter of numerous Court decisions.

 

[51]         In Head of the Department of Education v Mofokeng and others[2], the Labour Appeal Court (LAC) articulated the position as follows:

 

“Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the enquiry.”

 

[52]         In Khumalo v National Bargaining Council for the Road Freight Industry and Others[3], the test to be applied in a review was stated as follows:

 

“The test to be applied in the present instance is well established.  It is not sufficient for the applicant to contend that the arbitrator came to a decision that is incorrect or that a different arbitrator would have come to a different decision.  This Court is empowered to intervene by way of review if and only if the decision to which the arbitrator can, in so unreasonable that no reasonable decision-maker could have come to it on the available material.”

 

[53]         The test on review is trite as articulated in Makulen v Standard Bank of South Africa Ltd and others[4] where the Court stated:

 

“The test for reviewing and setting aside an award of the CCMA is whether the decision, reached by the commissioner is one that no reasonable person could have reached.”

 

[54]         The accepted test for review was summarized in the Supreme Court of Appeal in the matter of Herholdt v Nedbank Ltd (Congress of SA Trade Unions as amicus curiae)[5]:

 

"A review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in section 145(2)(a) of the LRA.  For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by section 145(2)(a)(ii), the arbitrator must have misconceived the nature of the enquiry and arrived at an unreasonable result.  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 particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable."

 

[55]         The test has been more clearly by Waglay JP in Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation and Arbitration and Others[6] as follows:

 

“[20]   … (i) Did the process that the arbitrator employed give the parties a full opportunity to have their say in respect of the dispute? (ii) Did the Arbitrator identify the dispute he or she is required to arbitrate? (iii) Did the Arbitrator understand the nature of the dispute he or she was required to arbitrate? (iv) Did he or she deal with the substantial merits of the dispute? and (v) Is the arbitrator's decision one that another decision maker could reasonably have arrived at based on the evidence?”

 

Applying the Law to the Facts

 

[56]         The applicant contends that the award is one that a reasonable arbitrator could not have made.

 

[57]         At the heart of this contention is, in essence that the second respondent did not have regard to the context in which the incident took place and all the factors relevant thereto by emphasising, to the exclusion of other important factors, incorrectly so, the issue of remorse, seriousness of the misconduct, destruction of the relationship of trust and the position of the applicant.

 

[58]         In doing so, the second respondent failed to have regard to the factors that she was obliged to weigh up, as per the third respondent’s code, which factors enjoined her to consider the merits of each case, the circumstances of the misconduct, the employee’s personal circumstances, disciplinary record and length of service.

 

[59]         I am of the view that the award is an unreasonable award for one or more of the following reasons:

 

59.1       Although the second respondent mentions the fact that the applicant has, in essence, been found not guilty of 4 of 5 charges of misconduct, this factor is not taken into consideration when weighing up an appropriate sanction.

 

59.2       An analysis of the charges in relation to which the applicant was found not guilty reveals that:

 

59.2.1  He did not gain entrance without permission in order to avoid or refuse to undergo a subsistence screening relative to drugs or alcohol.

 

59.2.2  He did not gain entrance to the premises without permission in order to seek out and/or perfect some or other nefarious purposes such as smuggling contraband or any other illegal purpose. Both council in terms of argument, conceded that there was no nefarious purpose for him entering without permission.

 

59.2.3 He was not insubordinate to the will of his employer as to being searched at the access point.

 

59.2.3  In gaining entrance without permission, he did not defy any safety standards and/or injure any fellow-employee and/or third party.

 

59.2.5 In entering the premises without permission from the security guard, he did not act in abuse of his authority and did not act with the intention to defy his employer.

 

59.2.6 At the time of doing so, the applicant verily believed that a precedent had been created to the effect that he need not alight his vehicle on account of his physical disability and/or difficulty.

 

59.2.6  He entered the premises without permission in reaction to the security guard’s unreasonable conduct in refusing to accept his condition and the exception made for him in the past.

 

59.2.8 He did so in a temper and in the heat of the moment.

 

59.2.9 The incident is less about insubordinate behaviour on the part of the applicant and more about an altercation with a junior employee of the third respondent. In this context, the applicant’s actions were not aimed at nor had as a consequence in mind, the destruction of the trust relationship as between the third respondent and him.

 

59.3       A full regard for all these facts and in particular the finding of not guilty as confirmed by the judgement of this Court in relation to 4 of 5 charges, changes the landscape relative to the application of discipline.

 

59.4       The absence of abuse of his position of authority, the absence of an injury, the absence of gross insubordination, the absence of a refusal to be searched, the absence of a nefarious intent and the absence of a refusal to subject himself to substance screening, goes a long way to remove the sting in the misconduct.

 

59.5       Otherwise put, a lot of spin has gone out of the wicket for the motivation in favour of a dismissal.  In context, although he was a senior employee, the judgement of the Labour Court finds that he did not abuse his position of authority in that regard and did not act with insubordination relative to being searched.

 

59.6       The applicant in the matter, expressed remorse.  Not only did he regret the incident but he felt bad about the situation and acknowledged that he could have handled it ‘better’ and ‘differently’.

 

59.7       It is true that in explaining his state of mind and what led to him entering the premises without permission, that he premised his behaviour on his reaction to the unreasonable refusal by the security guard to understand his disability and difficulty.

 

59.8       He did this to explain his behaviour.

 

59.9       It is the applicant’s version that he felt very disrespected and humiliated and lost his temper in circumstances where, in his mind, a precedent has been set to allow him to enter the premises without alighting from the vehicle.

 

59.10   The applicant believed that the security guard’s conduct was unreasonable.

 

59.11   At the very least, the security guard could have, to the extent necessary, validated the representations made by the applicant regarding his disability and difficulty and the precedent set on previous occasions.

 

59.12   In the circumstances, the applicant’s explanation for his behaviour is not mutually exclusive to an expression of remorse.

 

59.13   Even though the applicant has explained his behaviour, he acknowledged that he regretted the incident, he felt bad about it and would not approach it in the same way again.

 

59.14   The applicant has realised and acknowledged to his employer that his misconduct was inappropriate and that he could have behaved in a different manner.

 

59.15   There are sufficient grounds to warrant the benefit of corrective discipline in those circumstances.

 

59.16   As to the seriousness of the misconduct, there can be no doubt that to enter the premises without permission in the manner that the applicant did, is serious.

 

59.17   It is also my view that his conduct was not grossly negligent in relation to any particular protocol but instead, intentional.

 

59.18   He made the decision to enter the premises without permission in reaction to the unreasonable approach of the security guard.

 

59.19   The unreasonableness, he obviously premised upon the precedent that had been set, in a sense, relative to his disability and difficulty.

 

59.20   He lost his temper in the heat of the moment.  It is serious, especially given his seniority.

 

59.21   However, in the absence of an abuse of authority, the absence of injury, the absence of insubordination and the absence of any nefarious intent, it is forgivable.

 

59.22   It is problematic that a senior employee would behave in the manner that the applicant did in this matter.

 

59.23   However, when regard is had to a full conspectus of all the facts, then the incident, despite his seniority, is forgivable.

 

59.24   As per the findings of Lallie J, even though the applicant is a senior employee, there was no abuse of authority, insubordination, and/or injury. Council for the parties could not point to any nefarious intent on the part of the applicant.

 

59.25   Therefore, it does not follow that there has been a destruction of the relationship of trust as between the third respondent and the applicant.

 

59.26   The applicant, in the heat of the moment, simply lost his temper in circumstances where he had an expectation, premised upon previous experience, that he would not have to alight his vehicle on account of his disability and difficulties. The incident is less about the employer and more about an altercation between two employees, being the applicant, the senior, and the security guard, the junior.

 

59.27   In coming to her conclusion, the second respondent failed to have regard to the following:

 

59.27.1         The development in the evidence as a consequence of the judgement of this Court.

 

59.27.2        The effect of the judgement is that the applicant is not

guilty of an abuse of authority, not guilty of insubordination, not guilty of causing injuries and not guilty of any nefarious intent relative to by-passing security procedures.

 

59.27.3         The provocation and/or unreasonable behaviour of the security guard in the sense that he could have validated the applicant’s position with his superiors and/or dealt with the applicant’s disability and difficulties in a more sensitive and diplomatic manner.

 

59.27.4         The applicant acted out of tempter and in the heat of the moment.

 

59.27.4           The applicant felt bad about the incident and would not

act in the same way in similar circumstances.

 

59.27.6         The applicant continued to work for a period of five months before disciplinary proceedings ensued.

 

59.27.7         The applicant had approximately eight years’ service with a clean disciplinary record.

 

59.28       Had the second respondent had regard to all these facts, she would have come to the conclusion that dismissal was too harsh.

 

59.29       Her failure to properly apply her mind to all the facts and to focus, instead, on select facts, to the exclusion of others, has rendered the award unreasonable.  She failed to consider and weigh up, in any material manner, the circumstances of the incident, especially the applicant’s personal circumstances of ‘disability and discomfort’, eight years length of service and clean disciplinary record.

 

59.30       In the circumstances of the matter, it is my view that her result, namely that of dismissal, is a result that a reasonable arbitrator could not have made.

 

[60]         Insofar as it concerns the relief sought, both parties requested me to make a final determination on the matter and should it be that the award is reviewable, then not to remit it but to, instead thereof, substitute it and determine the matter.

 

[61]         The provisions of the Transnet Disciplinary Code and Procedure for Managers issued on 27 July 2020, as part of its purpose, provides for progressive and corrective action.

 

[62]         Its purpose enjoins the third respondent to take such steps as is necessary to ensure that any misconduct by an employee does not recur.

 

[63]         The principles of the code enshrine that disciplinary action must be implemented in a ‘prompt, fair, consistent and progressive manner, without favouritism or unfair discrimination with due regard to the merits of each case’. [own emphasis]

 

[64]         The code makes it clear that the employer, being the third respondent, will make efforts to correct the behaviour of employees through a system of graduated measures such as counselling and warnings.

 

[65]         The principles advance a correlation between the nature and severity of the misconduct and the disciplinary action applied thereto.

 

[66]         The policy records that the dismissal will be imposed if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable or is serious or of a repetitive nature or where progressive discipline has failed to correct the employee’s conduct.

 

[67]         In this matter, the allegation in charge 3 constitutes a breach of a policy of the third respondent. The policy is an important policy in that it relates to the security of the third respondent.

 

[68]         In a further document in the bundle, headed ‘Human Resources Disciplinary Code and Procedure’, the concept of corrective discipline is equally endorsed as a fundamental purpose of the code.

 

[69]         A fundamental principle of the code is to correct unacceptable conduct by employees and that the nature and severity of an employee’s transgression determines the nature and the extent of the disciplinary action.

 

[70]         The code furthermore requires that all relevant aggravating and mitigating circumstances must be taken into consideration and this would include the employee’s previous disciplinary record, personal circumstances, length of service and the circumstances of the misconduct itself.

 

[71]         The code records that when an employee, at any time, acts in a defiant or provocative manner towards a person of authority in the company, then the correlative sanction may include dismissal.

 

[72]         Part of the bundle constitutes the security policy of the third respondent.

 

[73]         This policy requires that all employees, including the applicant, must comply with access control procedures of the third respondent.

 

[74]         However, the same policy records, at paragraph 9 thereof, that disabled persons shall not be inconvenienced by physical security measures and must be catered for in such a manner that they have access without compromising security or the integrity of the security policy.

 

[75]         Although, there is some uncertainty as to the policy and protocols particular to persons such as the applicant suffering from disability and physical difficulties, it must be accepted as any reasonable employee would accept that entry into the premises must be by permission.

 

[76]         To enter the premises of the third respondent without permission must thus be seen as serious misconduct, especially given seniority of the employee.

 

[77]         However, the sanction must fit the misconduct.

 

[78]         In weighing up an appropriate sanction, the second respondent focused on what she perceived to be a lack of ‘remorse’, seriousness of the misconduct, destruction of the trust relationship and the position and functions of the applicant and overlooked the circumstances of the incident and the personal circumstances of the applicant, including his years of service and clean disciplinary record.

 

[79]         With due regard to the code and considering the circumstances of this matter, as fleshed out herein before and below, I find that the sanction of dismissal is too harsh. The mere fact that the applicant is a senior employee, on the facts of this matter, does not preclude him from receiving the benefits of corrective discipline. There is nothing in the third respondent’s code that prohibits a senior employee from receiving the benefits of corrective discipline in light of the fact that:

 

79.1       There was no abuse of authority.

 

79.2       There was no injuries.

 

79.3       There was no direct insubordination aimed at the employer.

 

79.4       The applicant had a ‘disability’ and a ‘discomfort’.

 

79.5       The applicant believed that he had an arrangement with his employer, given his disability and discomfort.

 

79.6       There was no nefarious intent on the part of the applicant in trying to escape the security measures of the third respondent.

 

79.7       The applicant lost his temper in the heat of the moment.

 

79.8       The applicant displayed remorse.

 

79.9       The applicant had eight years’ service.

 

79.10   The applicant had a clean disciplinary record.

 

79.11   Although the applicant is a senior employee, in the absence of abuse of authority and direct insubordination to his superiors, it does not follow that the relationship of trust has been broken nor does it follow that he is disqualified from receiving the benefits of corrective discipline.

 

[80]         An appropriate sanction is that of a final written warning which shall be valid for a period of 12 months from the date upon which the applicant resumes duty.

 

[81]         The applicant’s dismissal is thus set aside and substituted with the aforementioned final written warning.

 

[82]         The applicant is thus reinstated as at the date of his dismissal but such reinstatement is not with full retrospective effect.

 

[83]         The applicant is a senior employee and ought to have behaved in a different manner relevant to the altercation with security.  He could have subsequently, to the incident, filed a grievance.

 

[84]         He is the master of his own misfortune and as such, his back pay and benefits is limited to a period of three months, calculated at the rate due at the time of his dismissal.

 

[85]         There is nothing in law or equity that persuades me to grant costs in favour of either party.

 

[86]         In view of the above, the following order is made:

 

Order

 

1.        The arbitration award of the second respondent is set aside and substituted with this order.

 

2.        The applicant is reinstated into his former position on a final written warning valid for a period of 12 months and must report for duty as at 30 September 2024.

 

3.       The final written warning shall commence as at the date upon which the applicant resumes duty.

 

4.       The reinstatement is not with full retrospective effect but limited to the payment of 3 months’ salary and benefits that was due to the applicant as at date of his dismissal.  Both salary and benefits being limited to the period of 3 months.

 

5.       Payment of the 3 months’ salary and credit of his benefits, aforementioned, is to be made by the third respondent on or before 15 October 2024.

 

6.        There is no order as to costs.

 

 

C. Jessop

Acting Judge of the Labour Court of South Africa.

 

Appearances:

For the Applicant:	Mr. Java Mama of the Java Attorneys Inc.
For the Respondent:	Adv. Mapoma
Instructed by:	Gcolotela and Peter Inc.

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