Not reportable

the labour court of South Africa, 
held at CAPE TOWN
   case No: C481/2019
 
In the matter between:								 
MOLAETSA WA BOTSHELO TRADING AND PROJECTS CC T/A CRE8WORK		Applicant	
and			
CASHIEF GIDEON		First Respondent
	
GAIL MCEWAN, NOMINEE OFFICCI		Second Respondent	
THE NATIONAL BARGAINING COUNCIL FOR THE ROAD FREIGHT AND LOGISTICS INDUSTRY		Third Respondent	
			
Date of Set Down: 15 June 2021
Date of Judgment:  This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down judgment is deemed to be 14h00 on 15 June 2021.

Summary: (Review – misconduct - dismissal)
JUDGMENT
LAGRANGE J 
Introduction
[1]	This is an unopposed review application in respect of an award in which the arbitrator found that the dismissal of the first respondent, Mr C Gideon (‘Gideon’), by the applicant (‘Cre8work’) was procedurally fair, but substantively unfair. The arbitrator decided that even though the dismissal was substantively unfair, reinstatement was not appropriate and awarded Gideon eight months’ remuneration as compensation. The review application is unopposed and the applicant agreed that it could be dealt with on the papers without the need for oral submissions.  The applicant has filed heads of argument.
[2]	The charges for which the third respondent was dismissed arose out of a meeting convened by a manager, Mr L Neethling (‘Neethling’), who had been sent by the company to investigate perceived problems at the branch which Gideon managed. Gideon was notified of the meeting but not of the agenda. On the morning of the meeting he had come into the branch and opened the premises and then gone home. His evidence was that he was not well and had taken a sleeping pill when he got home. However, when he was summonsed telephonically to attend the meeting, he did. 
[3]	At the meeting, Neethling started to raise a number of concerns about issues at Gideon’s branch. Amongst other things, he asked Gideon to explain why another administrative employee was doing his work as manager and working so much over time. He also queried Gideon’s attendance record. These issues and others raised were legitimate issues for the company to have raised with a branch manager, but instead of engaging calmly with Neethling, Gideon became aggressive and challenging. He ultimately stormed out of the meeting without any of the issues having been properly canvassed in discussion. He also swore at Neethling, challenging him to do what he wanted. He refused to return to the office when instructed to do so. At the arbitration, evidence was led by Neethling of the transcripts of the disciplinary inquiry and of the meeting between him and Gideon, which the latter did not dispute in any way. It appeared from the minute of the enquiry that another employee had testified that she and a client had heard the altercation. Gideon said he did not return to the meeting despite being instructed to do so, because he was concerned he might become physical with Neethling.
[4]	The arbitrator seemed to have taken the view that Gideon was unfairly subjected to a barrage of questions, and that his aggressive reaction was justifiable in the circumstances. She accepted that he swore at Neethling on his way down stairs after leaving Neethling’s office, but in her view this was not serious because Gideon’s actions had not endangered anyone’s life and he was justifiably angry and right to walk away to avoid responding to Neethling with physical aggression. She also remarked that if he had abused Neethling in private, things might have turned out differently. Despite the necessary implicit inference in her reasoning that she saw Gideon’s conduct as provoked, she still did not think reinstatement was appropriate.
Merits of the review
[5]	In essence, the company contends that the arbitrator’s conclusion is one that no reasonable arbitrator could have reached. The essential requirements for successfully reviewing an award on this basis have been expressed in a number of judgments of the Labour Appeal Court, since the judgment in Sidumo & another v Rustenburg Platinum Mines Ltd & others 2008 (2) SA 24 (CC). Cre8works’s heads of argument reveal that its legal representatives are seemingly unaware of the development of the review test in subsequent decisions such as Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation & Arbitration & others (2014) 35 ILJ 943 (LAC) and Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) (2013) 34 ILJ 2795 (SCA). One expression of the approach adopted is set out in the decision of Head of Department of Education v Mofokeng & Others (2015) 36 ILJ 2802 (LAC):
[33] 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.  In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrator's conception of the enquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination.” 
(emphasis added).
[6]	Considering the application in the light of the test, it is telling that the arbitrator did not make any express findings about whether or not Gideon was guilty of the charges levelled against him, even though she accepted that his admission that he had sworn at Neethling. She found he was sorry for that. The arbitrator was clearly of the view that the charges were exaggerated and unnecessary. She might well be correct in this regard in respect of the charges relating to Gideon’s conduct relating to the subsequent disciplinary inquiry. 
[7]	However, on the evidence before her, it is an inescapable inference that Gideon had been obstructive and uncooperative in dealing with the issues Neethling raised with him in the meeting. His approach from the start of the meeting was aggressive and confrontational and displayed a reluctance to engage calmly with matters as the responsible manager for the branch. It is also apparent from the transcript of the discussion between Gideon and Neethling, that near the beginning of their meeting the latter had in fact asked him to close the door. Consequently, her inference that the employer had not attempted to keep the discussion private and that Gideon was not somehow responsible for the altercation being heard by others was an unjustifiable inference.
[8]	What stands out further as an unavoidable inference from the evidence is it was Gideon’s confrontational and dismissive attitude which prevented Neethling from effectively canvassing his concerns with him. This was a sound basis for the charge based related to this. There was also no evidence that Neethling behaved abusively towards Gideon, whom he had never met before. On the contrary, the only reasonable inference that could have been drawn from the evidence is that Gideon was the party whose conduct brought the meeting to an end and who displayed his complete disrespect for Neethling by challenging him and swearing at him within earshot of another employee and a client. It is interesting to note that in the disciplinary inquiry, Gideon presented a more detailed attempt to explain why someone else appear to be doing his job. This is an example of how he could have responded more constructively during his meeting with Neethling, had he wished to. 
[9]	During the disciplinary inquiry, it is readily apparent that Gideon showed little interest in participating. For the most part defended his actions as justifiable. It is clear that he harboured a burning resentment over a perceived disparity of conditions of employment between Ms C Claasen, whom the company was concerned was performing his work, and another employee Ms D Du Toit, who was employed more recently than Claasen. In particular, he was angry on behalf of Claasen because Du Toit did not have to work overtime but earned more than Claasen. However, there was no evidence that the person on whose behalf he complained had lodged a grievance in about the perceived disparity between her and the other employee, and there was no evidence that there had been constructive engagement over the issue. In any event, this grudge was extraneous to the matters the company wanted to raise with him about the branch and none of this could have justified his failure to engage in a proper discussion of the issues raised with him during his meeting with Neethling. Still less did it warrant his dismissive attitude towards Neethling or the open defiance of his authority. 
[10]	In the circumstances, I am satisfied that if the arbitrator had systematically gone through the charges, she would have been compelled to find that, even if Gideon’s failure on the day of the scheduled meeting to be present at work after opening up the premises could in some way be excused, he obviously obstructed Neethling in carrying out his investigation, and that he was grossly insubordinate in failing to remain in the meeting and disobeying an instruction to return, as well as openly displaying his contempt for Neethling which amounted to gross insubordination. No reasonable arbitrator considering all the evidence could have avoided finding Gideon guilty of this misconduct. These are all serious acts of misconduct which ordinarily would justify dismissal, especially in the light of Gideon’s status as a manager.
[11]	Consequently, to avoid the conclusion that Gideon’s dismissal was substantively fair, the arbitrator would have needed to have found that exceptional circumstances existed which would justify a conclusion that dismissal was not an appropriate sanction. However, the grounds she appeared to rely on, which were to place the blame the course of events on the employer and to minimise Gideon’s behaviour, entailed her adopting the least plausible interpretation of the evidence before her, which no reasonable arbitrator could have done.
[12]	Consequently, the arbitrator’s conclusion that dismissal was not an appropriate sanction and that Gideon’s dismissal was substantively unfair is not sustainable as a finding that any reasonable arbitrator might have made.
Order
[1]	The arbitration award of the second respondent dated 12 of June 2019 and the case number WCRFC 55436 is reviewed and set aside
[2]	The findings of the arbitrator in paragraphs 14 and 15 of her award and the relief ordered therein are substituted with a finding that the third respondent’s dismissal was substantively fair.
[3]	No order is made as to costs. 

_______________________
Lagrange J
Judge of the Labour Court of South Africa

Representatives		
For the Applicant			Lee and McAdam Attorneys