Ikwezi Municipality v SALGBC & others (LC Case no: P233/10 Judgment: 8 December 2011)

Principle:

In the absence of evidence that a continued employment relationship has become intolerable, published criticism of the employer by an employee which is not dishonest or malicious, and which does not mention any managers by name, will not justify dismissal.

Facts:

A letter to the editor of the Eastern Province Herald was published under the employee's name and designation as "shop steward". In the letter he criticised the municipality's performance. He had 23 years of service and a clean disciplinary record.

As a result of this publication the employee was charged and found guilty of conducting himself 'in an unseemly and or gross manner', 'tarnishing the good name and reputation of the employer and officials'. The employee was found guilty of contravening the Standard of Conduct which requires of employees that they "perform their tasks and job responsibilities diligently, carefully and to the best of their ability" and "refrain from any rude, insolent, provocative, intimidatory or aggressive behaviour to a fellow employee or a member of the public".

The bargaining council arbitrator held the dismissal was procedurally fair but substantively unfair and that the sanction of dismissal was inappropriate

On review at the Labour Court the role of an arbitrator is described as: (a) to determine whether dismissal is an appropriate sanction in the context; (b) to apply his mind to all relevant and material facts and circumstances; (c) to balance the parties' interests. The court said that the arbitrator did what he was required to do and did not defer to the employer on sanction but exercised his own sense of fairness and made a value judgment on the facts before him. The court went on to say that any interference with the sanction determined by the arbitrator would directly violate principles and precepts following from Sidumo.

As the arbitrator had found that there was no evidence that the relationship of trust had been irretrievably damaged, reinstatement was an appropriate remedy. The court placed emphasis that the letter was nothing more than the kind of criticism that appears in the media daily. The motive was not seen as malicious as it invited the employer to put its version and, if necessary, to prompt corrective measures. The fact that the letter did not mention any managers by name and the fact there was no evidence that the employee had acted dishonestly were further reasons why reinstatement was appropriate.

Extract from the judgment:

[12]   Mr Grogan submitted that the question this Court is therefore required to ask is as follows: is the finding that dismissal was an inappropriate sanction so unreasonable that it falls outside the band of reason within which two reasonable people might reasonably disagree? The applicant submits that the arbitrator failed to have regard to a number of critical facts. It implies that writing a letter critical of the employer inevitably leads to collapse of the employment relationship. The applicant also asserts that the central allegations in letter, other than the disclaimer, are largely unwarranted. However, the "sting" of the letter, on a dispassionate reading, is merely that the municipality is in financial distress, its administration leaves much to be desired and its affairs need to be investigated by the MEC for local government. The applicant's concern with the reinstatement order would appear to emanate from its concern that the allegations were untrue and that it had been placed in a bad light. Blouw's explanation for his conduct however, is that he wanted to provide an opportunity for the applicant to put its version and, if necessary, to prompt corrective measures. This motive is consistent with the contents of the letter. Although the truth of the allegations is not relevant to these proceedings, the arbitrator had regard to the disclaimer in the final paragraph of the letter in which Blouw calls for an "investigation if the allegations are true".

[13]   Of course the question as formulated would not be appropriate if one were to approach the matter as a process-related review based on the arbitrator disregarding material evidence in determining what is an appropriate sanction. This, as Mr Wade submitted, is not an attack directed at the reasonableness of the outcome. The arbitrator must consider all the evidence and cannot simply disregard critical factors. On this test Mr Wade submitted, the letter can on no interpretation be read benignly it must be seen in the context of Blouw's evidence and on that evidence the arbitrator found he acted for ulterior purposes and attempted to create an incorrect impression of the applicant. The disclaimer does not absolve him from the consequences of a seriously malicious statement, although acting maliciously destroyed his relationship with his employer. The issue is whether he believed in what he was saying, and the arbitrator had no regard to this factor. The award is so inherently contradictory in that the arbitrator correctly records the law and finds that it is breached by acting against the employer's interests, but then proceeds to reinstate the employee. In any event the 5 years' of income that he was deprived of by the arbitrator is not a penalty, the arbitrator was trying to be fair to the employer and attempting to balance interests as he was required to do. In the end where he found that the relationship was affected detrimentally he could not have reinstated the employee, but he nevertheless proceeded to do so in flagrant disregard of his duty to evaluate all the material evidence.

[14]   Mr Grogan submitted however that none of the facts alleged by the applicant to have required the arbitrator to apply his mind are material. Lack of remorse is not relevant in the absence of evidence that Blouw lied: In this regard remorse is relevant to serious misconduct as dealt with in Maepe v CCMA and Another. Secondly, there is no evidence other than the letter itself that his conduct was vexatious and malicious, and given the disclaimer the letter on its own hardly justifies that conclusion. Thirdly, the letter does not mention any managers by name and a number of the municipality's own witnesses testified to the chaos in the administration. The witness Rudman testified that the applicant had a problem with Blouw and he would have liked Blouw to come back. There was moreover no evidence that Blouw had acted dishonestly. Lastly, there is ample authority that where a commissioner does not specifically say something in the award it does not mean that he did not apply his mind to that fact. The arbitrator states this clearly in his award.

[15]   Mr Wade correctly submitted that the test is not what the arbitrator would do or this Court would do on the same facts the test is designed to avoid arbitrary interference. The issue is that the arbitrator applied the wrong test in reflecting on what an employer does with an employee who is found to have acted maliciously. Thus while commissioners should not defer to the sanction imposed by employers, they are required to consider all relevant factors, including the reason for the employer establishing the rule and prescribing the penalty of dismissal, in the process of determining whether the sanction of dismissal was fair. Commissioners cannot decide on sanction afresh nor can they do so on the basis of what they would have done in the employer's shoes. Nor can this Court step into the Commissioner's shoes and determine what it would have decided on the relevant and material facts.

[16]   In Sidumo, in giving clear direction to Commissioners on their duties Navsa J held:

In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that has been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal. There are other factors that will require consideration. For example, the harm caused by the employee's conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list. To sum up. In terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.

[17]   In Fidelity Cash Management Services v CCMA and others Zondo JP, (as he then was) applied this test, setting out a detailed list of what Commissioners are required to do. The Court held:

Once the commissioner has considered all the above factors and others not mentioned herein, he or she would then have to answer the question whether dismissal was, in all the circumstances, a fair sanction in such a case. In answering that question, he or she would have to use his or her own sense of fairness. That the commissioner is required to use his or her own sense of justice or fairness to decide the fairness or otherwise of the dismissal does not mean that he or she is at liberty to act arbitrarily or capriciously or to be mala fide. He or she is required to make a decision or finding that is reasonable.

[18]   The arbitrator was required therefore to determine whether dismissal is an appropriate sanction in this context and was required to apply his mind to all relevant and material facts and circumstances in doing so. Sidumo also requires a balancing of interests and this is what the arbitrator did. He in fact deprived Blouw of five years' salary. This is a significant penalty, for an act which may have been an error of judgment on his part but which was not the dire misconduct the applicant depicts it to be. No names are mentioned in the letter and there was no suggestion that he was dishonest in doing what he did. The arbitrator did what he was required to do and did not defer to the employer on sanction but exercised his own sense of fairness and made a value judgment on the facts before him. For these reasons any interference with the sanction he determined would in my view directly violate principles and precepts following from Sidumo. In the end he found that there was no evidence that the relationship of trust had been irretrievably damaged and in these circumstances, having had regard to all relevant facts, it cannot be said that reinstatement is not an appropriate remedy. I cannot agree with Mr Wade therefore that the arbitrator manifestly relinquished the authority conferred on him by Sidumo in a manner that would justify setting aside the award. There is no evidence that he failed to apply his mind to the material facts and circumstances and which resulted in the proceedings being tainted by gross irregularity with the result that a fair trial was denied to the applicant. Nor indeed can it be said even on a pure penalty review that the outcome was so unreasonable that it could not have been made by a reasonable arbitrator on the evidence before him. In the circumstances, the award stands to be upheld on either test, and there is no reason in fairness and justice why costs should not follow the result.