Afrox Ltd v National Bargaining Council for the Chemical Industry & Others (2006) 27 ILJ 1111 (LC)
Where misconduct is not of a serious nature and there is no clear evidence that the employment relationship has not broken down irretrievably, dismissal will usually be unfair
An employee reported two employees his employer's largest clients for breach of safety regulations. The following day, in what appeared to be a revenge attack, these employees swore at the employee and became involved in an argument with him. He became so angry that he dropped his trousers and exposed his buttocks to them. As a result of this the employee faced a disciplinary enquiry, was found guilty of obscene behaviour and was dismissed. A dispute was referred to the relevant bargaining council. The arbitrator found that there had been several procedural irregularities at the disciplinary hearing, the most glaring irregularity being that the employee had not been afforded the opportunity to cross-examine the two employees the other company. On review the employer contended that cross-examination would have served no purpose as their evidence would have weakened the employee's case.
The court found that cross-examination is fundamental, and the employer's argument overlooked the fact that it was undisputed at the disciplinary enquiry that the employee had been provoked and that the two employees had acted out of revenge. Cross-examination of them could have led to establishing serious mitigating factors, which could have prevented dismissal. On the other hand, their evidence could have bolstered the type of facts which would render the sanction of dismissal appropriate. The fact that the latter was a possibility did not mean that cross-examination should have been disallowed.
The court upheld the arbitrator's finding that dismissal was inappropriate in the circumstances of this case. The arbitrator had found the employee's conduct to be unacceptable, but had taken into account the surrounding circumstances, namely the provocation of the employee; that he had been consumed with anger and had later displayed considerable remorse. Further circumstances included the revenge motive of the two other employees; the fact that the incident had not disturbed the relationship between the employer and its client, and there was no evidence that the trust relationship had broken down between the employer and the employee.
The court therefore found that the award was well-reasoned and there was no reason for the court to interfere with it. The court, however, deleted part of the award granting the employee compensation over and above the retrospective reinstatement that the arbitrator had awarded.
Extract from the judgment:
 Although the two employees of Gas & Lube had made a complaint against Viljoen, they nonetheless did not testify at the hearing or at the arbitration hearing. Consequently no proper cross-examination was conducted.
 The applicant argued that it would have served no purpose to call these two witnesses and that the arbitrator's criticism in this regard was irrational, since their testimony would only have weakened Viljoen's case.
 In my view, the irrationality in this regard does not lie at the door of the arbitrator, but rather at that of the applicant. Cross-examination is fundamental, and this argument overlooks the fact that it was undisputed at the disciplinary hearing that Viljoen was very much provoked and that the two employees acted out of revenge.
Cross-examination of them could have led to establishing serious mitigating factors, which could have prevented the dismissal. On the other hand, it is quite probable that their evidence could have bolstered the type of facts which would render the sanction of dismissal appropriate. The fact that the latter was a possibility does not mean cross-examination should be disallowed. Such reasoning is irrational...
 The representatives on behalf of Viljoen and Solidarity argued that a stricter test should be applied to this review than in other cases and that I should be led by the test as set out in s 145 of the Labour Relations Act. At this stage I may just say that the appropriate test in a review application of this kind is to establish whether the arbitrator had rationally applied her mind to the evidence before her. She did. Whereas the conduct complained of is most certainly serious, it is not dismissiable conduct per se, in all circumstances. The arbitrator cannot be faulted for taking the surrounding circumstances into account, namely the provocation and the evidence which was led regarding the revenge motive of the two employees in question.
 Furthermore, one must also look at the nature of the charge against the applicant. He had been charged in terms of the applicant's disciplinary code, rule 14, which reads:
'Any deliberate action which does or has potential to disrupt industrial relations between management and employees, individuals and groups, for example abusive language, in this case towards a customer, abusive language and obscene behaviour.' He was found guilty of obscene behaviour only. There was no evidence that the relationship between the applicant and its client, Gas & Lube, was disturbed by the incident. There was also no indication that the incident in question destroyed the relationship of trust between the applicant and Viljoen. There is no evidence, further, that he would not be able to perform his duties as before.
 In my view the applicant has not put forward a cogent case which could persuade me to interfere with the arbitrator's award, insofar as the substantive and procedural fairness of the dismissal is concerned.
 However, I wish to interfere with her award in one respect, and that is to delete para 4 therefrom, so that it accords with the arbitrator's powers as conferred upon her by the Labour Relations Act