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Reportable

THE ;ABOUR COURT OF SOUTH AFRICA,

HELD AT CAPE TOWN

Case No: C 564/2019

In the matter between:

BRIAN STHEMBISO PAHLANGA                                                                      Applicant

and

THE PETROLEUM OIL AND GAS                                                                     First Respondent

CORPORATION OF SOUTH AFRICA

(SOC) LTD

NATIONAL BARGAINING COUNCIL                                                               Second Respondent

FOR THE CHEMICAL INDUSTRY

MR SAMUEL BARON (N.O.)                                                                                Third Respondent

Date of Set Down: 3 December 2020

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 09 July 2021.

Summary: (Review – dismissal - misconduct - suspension of dismissal pending psychological assessment-no assessment made-dismissal for misconduct confirmed-employee not providing evidence of incapacity either at the disciplinary inquiry or the arbitration – whether employer required to exclude the possibility of incapacity as a reason for conduct where such a possibility exists)

JUDGMENT

LAGRANGE J

Introduction

[1]        This is an application to review and set aside an arbitration award insofar as the arbitrator found that the dismissal of the applicant, Mr B Pahlanga (‘Pahlana‘), by the first respondent (‘Petrosa’) was substantively unfair. The arbitrator found his dismissal was substantively fair but procedurally unfair and awarded Pahlana four months’ remuneration as compensation. The arbitrator further ordered the employer to remunerate him for a period of five months during which he had been unpaid before his dismissal took effect.

Summary of the narrative

[2]        Pahlana is a chemical engineering graduate and during the last four years of his employment with Petrosa had performed the work of a senior process controller (SPC). He was employed in May 2004 and was dismissed on 30 January 2018. He was dismissed for being absent from work for four days or more without a valid reason from 15 July until 28 July 2017.

[3]        As an SPC, Pahlana occupied a pivotal operational role in the refinery plant where he worked. He was responsible for monitoring the operation of a refinery plant by means of a control panel consisting of a number of screens. The panel could not be left unattended at any time and Ahrends likened the SPC role to that of a pilot operating a plane. An SPC cannot leave the post at the end of the shift until the relief SPC arrives. If an SPC is absent the attendance of another SPC has to be arranged who will be paid overtime to substitute for the absent employee. Pahlana received a monthly salary of R 34,500 at the time of his dismissal in 2018.

[4]        The undisputed evidence of Ahrends was that Pahlana had previously been found guilty of lack of punctuality, unauthorised absence and fraud in February 2015. The last mentioned misconduct related to the alteration of the dates on a doctor’s medical certificate. He was suspended without pay as a sanction and unsuccessfully challenged this disciplinary action at the bargaining council.

[5]        Prior to the unauthorised absence which led to the inquiry, Pahlana had also been charged towards the end of May 2017 with gross negligence in leaving the process panel without authorisation, unauthorised absence without following the proper procedures on four occasions and lack of punctuality. Although the charges were issued no inquiry ever took place.

[6]        Pahlana’s absence from work actually began on 10 July 2017. He did not phone his supervisor, Mr A Ahrends (‘Ahrends’) but asked his mother to do so. She did so 10 minutes after his shift was due to commence. He also did not report for work on 11 July 2017. Prior to that shift, he phoned Mr W Liedermann the previous night to say that he would be taking the day off, instead of phoning Ahrends as he was supposed to. Pahlana was not scheduled to work on 12 and 13 July. On 14 July, he did not report for work but phoned Ahrends to tell him he had a problem and would not be coming to work.

[7]        On 26 July 2017 a letter was delivered to him instructing him to return to work by 28 July 2017, but he refused to sign acknowledging receipt of it, stating that he would nevertheless handed to his psychologist. The letter read:

‘Dear Brian

Re: UNAUTHORISED ABSENCE/ABSENCE WITHOUT OFFICIAL LEAVE

According to our records you have failed to report for duty since 15 July 2017.

You are hereby instructed to report for duty on 28 July 2017 and 06h00. Failure to do so will leave the company no choice but to take disciplinary action against you.

Upon your return required to explain and provide proof of the reason(s) of your absence. Failure to return on the specified date would provide the company was lawful and reasonable reason(s) for your absence will be deemed to be a failure or refusal to follow a lawful and reasonable instruction.

Furthermore, the informed that the company reserves the right to (illegible) or proceed with, disciplinary action in your absence and this may lead to termination of your services should you fail to report for duty as instructed.’

[8]        On the 31 July he was issued with another letter from the area manager of the refinery, stating:

‘Dear Brian

Subject: NOTICE TO RETURN TO WORK

In terms of the Leave Policy (SSC/PO/GEN/001) “employees must personally notify their immediate supervisor as soon as possible but no later than the start of the working day of the absence”. We refer to our correspondence dated 25 July 2017 which instructed you to return to work by later than start of business on 28 July 2017 and/or furnish reasons for your absence. We have not received any response from you regarding our correspondence.

You are therefore, requested to return to work by no later than 29 July 2017 or provide the company with the reasons for your absence. You are also requested to attend a disciplinary inquiry to be held on 7 August 2017 at 11h00.

Please note that failure to do so will be considered as absconded and/or that you deserted your job, which may lead to the disciplinary inquiry to be held in your absentia’

(sic)

Unlike the first letter, Pahlana acknowledged receipt of this letter in writing without any qualifications.

[9]        During the period 15 July until 28 July, Pahlana missed five shifts. On 1 August he reported for work and requested voluntary enrolment with the employee assistance program. The inquiry was postponed to 16 August 2017, which is the first day that Pahlana reported for duty again. At that sitting of the inquiry, Ahrends said Pahlana should return to work, but he did not do so. Subsequently, on 25 August the chairperson of the inquiry, Mr I Loff (‘Loff’) advised him not to return to work as the grounds for his absence had not been established.

[10]    Pahlana pleaded guilty to the charge. In mitigation, he also submitted a two-page document headed “Report for Not Reporting for Duty – Period 15/08/2017 to present.” The submission essentially said that he was uncomfortable at work and interpersonal relations in the production section where poor which affected him psychologically. He expressed the belief that there were people trying to eliminate him from his job and there were no reliable systems to protect him. He accused senior management of turning a blind eye when he asked for their intervention and perceived himself to be a victim of a conspiracy by certain team leaders and shift supervisors who were abusing their authority to advance their own objectives. He claimed he was being punished for refusing to abide by their rules. It was these actions which led him to stay away from work because he felt “trapped” and fear that he might react in a manner that he would regret and wanted to avoid “psychological breakdown or brain paralysis”. He said that after a lot of thinking he decided to get help from the employee assistance program (EAP). He alluded to the fact that he did not exhaust such services but attributed that to the fact that the service providers were not trustworthy and that he learned in his experience as a shop steward that the only way to get a fair hearing at the company was to lie. He referred to being the victim of discriminatory and racist verdicts based on false information given by a shift supervisor which resulted in him being suspended without pay for something he never did. Although his allegations were cast in the most general and imprecise terms, it appears that this was a reference to the previous disciplinary action taken against him in 2015, which he had referred to arbitration. Pahlana’s submission went on to make further sweeping claims that he was the victim of incompetent personnel in strategic positions whose only object was to abuse their authority by victimizing employees in order to control them. He referred to them as “godfathers” within the company. He also directly attacked Ahrends about an alleged ‘incident’ accusing him of having blocked an appraisal of the incident which had caused the company a loss of customers. No details of the incident were provided. His submission concluded with the following:

‘Chairperson the only answer I need from these people is why they busy trying to get me fired before I return to work. You might say I’m paranoia but false accusations were raised against me and they survived but the main desire was for me to be fired. I have reported my attending the sessions to a psychiatrist and I would like to ask the chairman to insist on getting that report to help get an approach on how to resolve this matter.’

(sic)

In the main, apart from what is mentioned above the submission is a collection of vague, repetitive and damning allegations against those in charge, whose main object he believes will was to victimize other employees. Nothing in the entire document explains why Pahlana did not come to work on the particular days mentioned, particularly after being instructed to return to work.

[11]    It appears that Ahrends, while readily admitting Pahlana as being good at his job, experienced the following difficulties with him: his negative attitude towards management; his punctuality and time management; his reluctance to follow rules relating to shift handovers, and a generally negative attitude towards the company because he had not been promoted to a position commensurate with his qualifications. Ahrends reiterated these issues in the arbitration hearing.

[12]    On 17 October, Loff accepted the guilty plea. He found that by ignoring the written instruction of 26 July to return to work by 28 July after he had really been absent without authorisation for four more days, meant that he had decided that “his relationship with the employer was not important to him”. Further, he found that if he did have a positive relationship with the company he would have consulted other managers or his employer representative to speak on his behalf at the time which he did not do. He saw it as a matter of grave concern that Pahlana irrationally ignored repeated and reasonable requests from the employer to return to work. In the light of this he imposed the recommended sanction of dismissal.

[13]    However, out of great caution, he required Pahlana to be referred to a professional clinical psychologist, inter alia, to report on whether there were any psychosocial conditions affecting Pahlana that might be impacting on his time and attendance record, and if they did exist to make appropriate recommendations on how he could be managed and whether and how his behaviour could be corrected. Clearly the chairperson was of the view that if such evidence was forthcoming, a sanction short of dismissal on grounds of ill health might still be entertained. Accordingly, he declared that the disciplinary process was not concluded pending the consideration of the report. It is apparent that Loff felt legally obliged to consider whether there was any measure short of dismissal that could be adopted even if this required to him to delve deeper than Pahlana’s own attempt to mitigate his misconduct as expressed in his written submission.

[14]    It should be mentioned that by the time Loff issued his provisional finding apart from receiving Pahlana’s written submission in mitigation, and Ahrends’s submissions in aggravation, Pahlana’s representative had also given Loff a copy of a letter from a psychologist employed by the wellness program providers, Dr L Snell. Pahlana had consulted her after the disciplinary process had been initiated.  Her letter appeared to accept at face value the complaints reflected in Pahlana’s own submissions about being disappointed with management and being victimised. She noted he was anxious, suffering from disturbed sleep, a depressed mood and unspecified trauma symptoms. She noted that he nonetheless did not appear to harbour any grudges despite suffering unfavorable treatment and the humiliation of being falsely accused and disciplined without any grounds. She also noted his commitment to work excellence. Apart from recommending ongoing sessional interventions focussed on Pahlana containing his trauma symptomatology by equipping him with coping mechanisms because of his perception of being compromised and victimised without good cause, Dr Snell proposed he return to his work and his potential for promotion re-assessed. 

[15]    On 30 January, Loff issued his final verdict. The report issued by a clinical case manager recommended that Pahlana be encouraged and motivated to attend all his sessions with a wellness practitioner, that his emotional well-being and work attendance and performance the monitored for any noticeable progress, and that a safe environment should be provided for him to have crucial conversations by means of which he could voice his feelings and frustrations.

[16]    Loff noted, correctly, that the report did not answer the questions he had posed. It would seem that this might have been because the actual referral to the wellness program providers was jointly drawn up by Pahlana and Ahrends. The referral form identifies the reason for the referral being Pahlana’s absence without authorisation and contains his brief explanation of his problem, namely experiencing abuse of authority and misinformed procedures which affected him negatively psychologically and socially. He also complained that when he raised his problems, nobody listened and he was given the cold shoulder. The referral form provided space for the parties to provide us with insight into their expectations regarding the referral, but this portion was only completed by Pahlana. The expectation he expressed was that he would be supported by given an opportunity to voice his concern and the sanction of dismissal should not be imposed. In the light of the way this form was completed it is not surprising that Loff’s very specific questions were not addressed and that the focus of the report was very much influenced by Pahlana’s concerns.

[17]    In any event, Loff considered that even if the recommendations were adopted he had to balance that against the need for Pahlana to fulfill his contractual work obligations. The fact that no reason had yet been provided why Pahlana could not have attended work or relayed a message via his representative was critical in assessing his attitude towards the employer and whether action less than dismissal should be adopted. In the absence of any clear finding of incapacity, he concluded that Pahlana had behaved as he did because he did not view the employment relationship with Petrosa as important. He also considered that it was likely his behavior would continue and in the circumstances the risk of setting a precedent by not upholding the recommended sanction of dismissal would not be appropriate. Loff then confirmed the dismissal, purportedly from the date that Pahlana had been requested in writing to return to work.

The arbitration award

[18]    I will only deal with the main elements of the arbitrator’s reasoning.

[19]    Firstly, the arbitrator determined the correct date of Pahlana’ dismissal, and found that a proper consideration of the course of events the dismissal took place on 30 January 2018 and accordingly was entitled to be his salary for the previous five months, which had not been paid because of the purported backdating by Loff of his decision to dismiss Pahlana.

[20]    The arbitrator also found that contrary to what Loff had said when he suspended the inquiry, he did not share the contents of the report he received from Doctor Snell. Nonetheless, he found that Loff had attempted to find out if there was any particular reason for his failure to report for work, which mitigated Loff’s failure to share the report to some extent. Nevertheless, the arbitrator found that by effectively suspending Pahlana without pay pending the final outcome of the disciplinary hearing, this was procedurally unfair. He accordingly ordered Petrosa to pay him compensation for the procedural unfairness amounting to four months’ remuneration.

[21]    In considering whether the dismissal was substantively unfair, the arbitrator began by reiterating the standard requirements of the test for a fair dismissal for misconduct set out in item 7 of schedule 8 of the Labour Relations Act, 66 of 1995 (‘the LRA’):

“7 Guidelines in cases of dismissal for misconduct

Any person who is determining whether a dismissal for misconduct is unfair should consider-

(a)   whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and

(b)   if a rule or standard was contravened, whether or not-

      (i)  the rule was a valid or reasonable rule or standard;

     (ii)  the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;

     (iii)  the rule or standard has been consistently applied by the employer; and

     (iv)  dismissal was an appropriate sanction for the contravention of the rule or standard.id for the five months prior to that when he had been unpaid”

[22]    the arbitrator confirmed that he had breached the requirements to render services unless he had advanced a valid and acceptable reason for not doing so. During the time of his absence he never offered any explanation for his absence.

[23]    The arbitrator then proceeded to determine if the sanction of dismissal was fair in all the circumstances. He found that his non-attendance over four days while occupying a pivotal operational position, which impacted on Petrosa’s operations and put pressures on his colleagues to stand in for him. Furthermore he disregarded attempts to get him to explain his conduct. Given a history of complaints relating to his punctuality and previous disciplinary action taken against him, the arbitrator was of the view that corrective disciplinary action was unlikely to correct his behaviour. Moreover, having heard his evidence and observed him during the arbitration the arbitrator did not believe that he had any serious intention of altering his behavior if he was reinstated. In the absence of either party leading evidence of Doctor Snell, no weight could be attached to it in determining whether rehabilitation of some kind was possible. This was particularly so because the company believed she had misunderstood her mandate. Additionally, Pahlana appeared to harbour resentment against Ahrends, whom he would still have to work under.

[24]    The arbitrator did consider the detrimental impact on the dismissal on Pahlana who had a family to support, but that had to be weighed up against the company’s operational needs and harmony in the workplace. He was not persuaded that the circumstances leading to his dismissal warranted a lesser sanction entailing his reinstatement.

Grounds of review

[25]    Pahlana raises a number of grounds of review. The central ones may be summarised as:

25.1   the arbitrator erroneously evaluated the fairness of the dismissal as if he was dealing with a normal dismissal for misconduct, whereas he ought to have realised that having taken a prima facie view that Pahlana’s conduct might be due to a psychological problem, the employer was bound to investigate the possibility that incapacity was at the root of his misconduct, and if so, to exhaust all alternatives short of dismissal, before resorting to it.

25.2   The arbitrator failed to appreciate the significance of the chairperson not pressing for an answer to the questions he posed to be answered by a psychologist, which had the consequence that the employer did not discharge the onus of establishing that a dismissal for misconduct was justified in circumstances where it was aware that the employee’s conduct might not be attributable to his fault, but owing to his inability arising from an illness or injury.

25.3   In any event, the employer had a duty to explore all alternatives to dismissal whatever type of dismissal was considering, and the arbitrator misconceived his duties in failing to consider this. Had he done so, he would have found that and would have found that petrosa had not been exhausted all alternatives to dismissal.

25.4   He failed to appreciate that the employer’s attitude at the time of the arbitration was that the trust relationship had not broken down owing to his conduct, provided he underwent the process determined by the chairperson.

25.5   The arbitrator also misconceived where the onus rested in such a case. Having decided that a psychological evaluation was necessary, the employer was obliged to lead evidence showing that his behaviour could not be attributable to psychological illness before it could justify a dismissal based on misconduct.

25.6   The arbitrator’s finding that the report of the psychologist did not uncover any irrational behaviour or evidence of substance abuse, was unjustifiable on the evidence because the psychologist did not answer the questions posed by Loff.

Evaluation

[26]    By way of emphasizing the no-fault nature of incapacity, Pahlana’s counsel, Mr Rautenbach, alluded to the case of Transnet Freight Rail v Transnet Bargaining Council & others (2011) 32 ILJ 1766 (LC), which endorsed the following statement of the learned author, J Grogan, on handling the disease of alcoholism in the workplace:

‘(19) In this regard Grogan states the following in Workplace Law:

'Employees may be dismissed if they consume alcohol or narcotic drugs to the point that they are rendered unfit to perform their duties. There may, however, be a thin dividing line between cases in which alcohol or drug abuse may properly be treated as misconduct, and those in which it should be treated as a form of incapacity. The Code of Good Practice: Dismissal specifically singles out alcoholism or drug abuse as a form of incapacity that may require counselling and rehabilitation (item 10(3)) ....

It is clear, however, that in certain contexts being intoxicated on duty can be treated as a disciplinary offence....

Special mention is made (in the Code of Good Conduct: Dismissal) of employees addicted to drugs or alcohol, in which cases the employer is enjoined to consider counselling and rehabilitation. The dividing line between addiction and mere drunkenness is sometimes blurred. An employee who reports for duty under the influence of alcohol or drugs may be charged with misconduct. Whether such an employee should be considered for counselling or rehabilitation depends on the facts of each case. These steps are generally considered unnecessary if employees deny that they are addicted to drugs or alcohol, or that they were under the influence at the time. Rehabilitative steps need not be undertaken at the employer's expense, unless provision is made for them in a medical aid scheme.'[1]

[27]    Reliance was also placed on item 10 (1) of Schedule 8 of the LRA which deals with incapacity as a reason for dismissal. For completeness, item 10 reads:

“10 Incapacity: Ill health or injury

(1) Incapacity on the grounds of ill health or injury may be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal. When alternatives are considered, relevant factors might include the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee. In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee's disability.

(2) In the process of the investigation referred to in subsection (1) the employee should be allowed the opportunity to state a case in response and to be assisted by a trade union representative or fellow employee.

(3) The degree of incapacity is relevant to the fairness of any dismissal. The cause of the incapacity may also be relevant. In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider.

(4) Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances.”

(emphasis added)

[28]    While conceding that there is no decided case authority on all fours with the facts of this case, Pahlana contends that an employer has a duty to investigate the impact of a real possibility of ill health on the employment relationship. Further, where there is such a possibility. the investigation must be completed and any contemplated disciplinary steps held in abeyance until that is done. Lastly, if the outcome indicates that the situation can be remedied through some form of treatment that intervention should be undertaken first. Accordingly, Pahlana argues his dismissal for misconduct could not be fair in circumstances where the employer was of the view that there might be an incapacity problem and had commenced an investigation, but then reverted to the disciplinary process without that investigation being properly completed. In terms of discharging the primary onus, he argues in effect that an arbitrator cannot make a finding that an employer has satisfied the onus of establishing the substantive fairness of a dismissal for misconduct, if there is a possibility that the conduct may be the result of incapacity unless the incapacity is shown not to exist. Consequently, Pahlana’s argument means an employer must prove that incapacity is not the reason for the employee’s behaviour, in circumstances where it might possibly explain it, before it can dismiss the employee for misconduct.

[29]    Petrosa does not dispute the arbitrator’s findings relating to procedural fairness, nor does it dispute his award of backpay for Pahlana’s unpaid suspension.

[30]    Petrosa agrees with Pahlana that the psychologists report did not make any finding that his conduct was due to a psychological condition. Where it fundamentally parts ways with Pahlana is that it contends it was under no obligation to pursue such an investigation further. Pahlana had been charged with misconduct, subjected to a disciplinary inquiry in which he had pleaded guilty to the charge and was ultimately dismissed for misconduct. The fact that Pahlana had pleaded guilty to the charge disposed of the issue of whether he had committed misconduct in question. Petrosa contends that by arguing that Loff should have conducted an inquiry on the basis of the principles applicable in dismissals for incapacity, Pahlana was effectively attempting to withdraw his admission of guilt. Given his guilty plea, the only question remaining was the fairness of the sanction of dismissal. In the circumstances, the employer argues the arbitrator cannot be faulted for dealing with the matter as an unfair dismissal for misconduct.

[31]    Further, Petrosa argues that it was untenable to contend that the inquiry turned into an incapacity inquiry when it was adjourned pending the outcome of a psychological assessment. Notwithstanding this development, the disciplinary inquiry was concluded.

[32]    Petrosa also submits that this case is distinguishable from the type of case such as Transnet Rail Engineering v Mienies and others (2015) 11 BLLR 1144 (LAC). In that case, the employee had been dismissed for poor work performance and the arbitrator had upheld the fairness of the dismissal for that reason. On review the labour court set aside this finding, and the LAC upheld the court a quo’s decision on appeal. Unlike Pahlana’s case, in that instance there had been a doctor’s report diagnosing the employee as suffering from a major depressive disorder precipitated by worsening work stress and recommending his urgent transferred to another division of Transnet to prevent further impairment of his emotional and physical functions with worsening work performance. In addition, a report from the employee wellness program found that the conflict between himself and his supervisor created stress beyond his coping capacities and negatively affected his attendance and work performance. By contrast, in Pahlana’s case it was common cause that there was no comparable finding that his conduct could be attributed to incapacity of a psychological kind.

[33]    Moreover, prior to the institution of disciplinary proceedings, there was no evidence of Pahlana suffering from a psychologically induced disability. Petrosa argues that it is disingenuous of Pahlana to contend that Loff had made a prima facie finding that his conduct was a result of suffering from a psychological condition, whereas it was clear that Loff was simply unsure whether this might account for his misconduct. Loff’s uncertainty could not be elevated to the status of prima facie proof of incapacity, especially bearing in mind that even if it could have been construed as a belief held by Loff, his assessment as a layperson could not carry any weight.

[34]    In addition, Pahlana himself led no evidence in support of a claim that his conduct was attributable to psychological incapacity. He was legally represented in the arbitration and nothing prevented him from obtaining expert evidence in support of a contention that he could not be held accountable for the misconduct on account of incapacity. At best, the claim of incapacity was nothing but conjecture.

[35]    To the extent that either the psychologist’s letter or the report from the wellness practitioner revealed anything about Pahlana, they did not disclose anything more than his subjective perception that he was being victimised by superiors and needed to develop coping mechanisms to deal with the stress this caused him. Petrosa contends that if this diagnosis and prognosis were elevated to a finding of incapacity as a cause of his conduct, every short-tempered employee could demand that their misconduct arising from their inability to restrain themselves be dealt with as a case of incapacity.

[36]    The first point that needs to be made is that it is trite that an employer bears the onus of justifying the fairness of a dismissal on the basis of the reason given for the dismissal.[2] The legitimate reasons for a fair dismissal in encompass a spectrum ranging from a complete absence of fault on the part of the employee (as in the case of dismissal for operational reasons) through to dismissal on account of the willful conduct of an employee (in the case of deliberate misconduct). Whilst these categories of legitimate reason can sometimes become blurred, as in a case where employees are retrenched because they refused to accept a reasonable alternative to retrenchment, the employer must defend the dismissal on the basis of the reason it provides for the dismissal. If the employee believes that an ulterior motive lies behind the ostensible reason, the employee can lead evidence to show that the dismissal cannot be justified on the ostensible cause or can pursue a claim on the basis that the dismissal is for an impermissible reason under section 187 of the LRA. Likewise, if an employee charged with misconduct believes that their actions can be explained as something wholly or partially beyond their control because they are suffering from a physical or mental incapacity, the employee can lead evidence to show that they are not at fault, or that the degree of fault that can be held accountable for is diminished by their condition and warrants the adoption of other measures before dismissal can be justified.

[37]    However, the employer is not obliged to eliminate all possible explanations for what appears to be the deliberate and willful misconduct of an employee, in circumstances where other possible explanations were not previously known to the employer, or were not obviously apparent. In this regard, the principle that an employer should exhaust all possible alternatives to dismissal must be contextualised. It is only in the case of anticipated unreasonably long-term absence from work in a case of incapacity, that scheduled 8 requires an employer to ‘investigate all alternatives to dismissal’. Further, in the context of such an investigation the employee must be given an opportunity to make representations. In the guidelines for dismissals for misconduct there is no similar obligation placed on an employer to conduct a full-scale investigation into what might underlie an employee’s misconduct. The guidelines cannot be interpreted to mean that, merely because an employer considers the possibility that there might be an explanation for misconduct which could reduce an employee’s accountability for their actions, and employer has an obligation to conclude an investigation to determine whether or not that is the case before it can finalise a disciplinary inquiry. In the circumstances, it cannot be said that the arbitrator misconstrued the issue he had to determine.

[38]    Loff raised the possibility of another explanation on the basis of his own puzzlement about Pahlana’s conduct and then eventually discounted the existence of some other explanation. Pahlana had the opportunity to pursue the possibility of obtaining a clear psychological diagnosis provided by the investigation. He also had the opportunity of advancing psychological reasons as a defence to the charge of misconduct and leading evidence in support thereof. He did not do this. Instead he attempted to place the ball in the employer’s court because the employer had contemplated the mere possibility of a different sort of inquiry.

[39]    In this case, Loff ultimately concluded that his provisional finding that dismissal for misconduct was justified should be confirmed. It is true that he did not obtain any definitive answer to the questions he had posed for a psychological assessment, but it is important to note that the principal reason he asked for this assessment was the absence of any explanation by Pahlana for his unauthorised absence, even when asked expressly to do so. Pahlana’s admission of guilt did not provide an explanation nor did his written submission in mitigation reveal what prompted him to not come to work and not provide an explanation for doing so. 

[40]    In so far as he was disgruntled with his work situation, despite being previously a shop steward, he never made any attempt to articulate his unhappiness in the form of a grievance. Even in his submission he made allegations against his superiors in general and sweeping terms, with only a few clues as to what he might be referring to. Some of those clues point to the previous disciplinary action taken against him, which he had challenged unsuccessfully in arbitration proceedings. Evidently, he did not accept the results of those proceedings, though he never took them on review. It cannot be said that it was unreasonable based on the evidence for the arbitrator to infer that the prospects of matters improving if Pahlana was reinstated were not encouraging, and it was evident that his absenteeism was not a trivial matter in the context of the function he performed.

[41]    In the circumstances, unsatisfied that the arbitrator did not commit any reviewable irregularity and that the outcome was not one that no reasonable arbitrator could have reached on the evidence before him.

Order

[1]        The review application is dismissed.

[2]        No order is made as to costs.

Lagrange J

Judge of the Labour Court of South Africa

Representatives

For the Applicant                                                   F Rautenbach instructed by Carelse Khan Attorneys

For the First Respondent                                       J Vlok of Bradley Conradie Halton Cheadle Attorneys

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