National Union of Metal Workers of South Africa (NUMSA) obo Motloba v Johnson Controls Automotive SA (Pty) Ltd and Others (PA6/15) [2017] ZALAC 14 (3 February 2017)

Principle:

A shop steward should fearlessly pursue the interest of his/her constituency and ought to be protected against any form of victimisation for doing so. However, this is no licence to resort to defiance and needless confrontation. A shop steward remains an employee, from whom his employer is entitled to expect conduct that is appropriate to that relationship.

Facts:

The employee was a shop steward and in that capacity he had a series of discussions with the payroll administrators because he did not agree with their interpretation of the MIBCO's collective agreement regulating how the employees on night shift were to be paid for work performed on a public holiday.

Unhappiness emerged from a group of employees who accused the employee of having agreed with the employer's interpretation of the collective agreement. The dissatisfaction culminated into a two and half minute incident which led to disciplinary charges being brought against the employee. He was charged with physical and verbal assault,serious disrespect, impudence and/or insolence and/or threatening and/or intimidating.

The employee was dismissed and referred an unfair dismissal dispute to arbitration. The arbitrator found that the employee was not guilty on the charges because the employer did not succeed in proving that he acted intentionally and unlawfully. The arbitrator relied on the 1989 Industrial Court decision inFood & Allied Workers Union v Harvestime Corporation (Pty) Ltdwhich held that 'an employee, when he approaches or negotiates with a senior official or management, in his capacity as shop steward, does so on virtually an equal level with such senior official or management and the ordinary rules applicable to the normal employer-employee relationship are then somewhat relaxed.'

The arbitrator concluded that the dismissal was procedurally fair but substantively unfair. He determined that the reinstatement or reemployment of the employee was impracticable because of the required interaction between the complainant and the employee. He ordered compensation equivalent to 12 months' remuneration.

The employee filed an application to review and set aside the arbitration award on the basis that the arbitrator acted irrationally in not ordering that he be reinstated having found the dismissal was substantively unfair. The employer launched a cross-review against the arbitrator's conclusion that the dismissal was substantively unfair.The Labour Court was critical of the arbitrator's assessment of the evidence. It also held that to the extent that the arbitrator applied the incorrect "anything goes" approach, suggested in Harvestime Corporation, he committed a gross irregularity. The Court reasoned that the approach adoptedby the arbitrator led to his conclusion that the employee had not committed any physical and verbal assault or any serious disrespect, impudence or insolence or exhibited any threatening and intimidating behaviour towards her.The Labour Court concluded that the only reasonable conclusion to be made on the facts was that the employee committed the acts of misconduct for which he was charged.

On appeal at the LAC, the judgment of the LC was confirmed. The LAC took the opportunity to qualify the judgment in Harvestime Corporation.

Extract from the judgment:

(Phatshoane AJA)

[47]   As already alluded to, in arriving at the conclusion that the dismissal of decision of the Industrial Court in FAWU v Harvestime Corporation (Pty) Ltd where the Court held that in instances where a shop steward approaches or negotiates with a senior official or management he/she does so on virtually an equal level with such senior official or management and the ordinary rules applicable to the normal employer-employee relationship are somewhat relaxed.

[48]   The principle formulated in the considerable body of authority both in the Labour Court and in this Court is that a shop steward should fearlessly pursue the interest of his/her constituency and ought to be protected against any form of victimisation for doing so. However, this is no licence to resort to defiance and needless confrontation. A shop steward remains an employee, from whom his employer is entitled to expect conduct that is appropriate to that relationship. The fact that the bargaining meetings often degenerate does not mean that one should jettison the principle that, as in the workplace also, at the negotiations table the employer and the employee should treat each other with the respect they both deserve. Assaults and threats thereof are not conducive to harmony or to productive negotiation. It is unacceptable to hold that when one acts in a representative capacity "anything goes".

[49]   In my view, the incident complained of in this case did not arise during the course of the negotiations or within the context of the collective bargaining process. It simply erupted out of the accusations levelled against Mr Motloba by his constituency that he agreed with Johnson Control's interpretation of the collective agreement. I am of the view that the arbitrator misconceived the nature of the enquiry he was enjoined to undertake in holding that the heated exchange was in relation to an issue of relevance to industrial relations and that Mr Motloba approached Ms Bezuidenhout in his capacity as a shop steward. Even assuming that the heated exchange was in the course of negotiations Mr Motloba's conduct flies in the face of the ample authority referred to in the preceding paragraph. A vociferous and determined shop-steward should act in the best interest of his/her constituency and not in a manner that is improper and unbefitting of the office he/she holds. Reliance by arbitrator on Harvestime Corporation in this matrix was plainly wrong and had been correctly found by the Court a quo as amounting to a gross irregularity.

[50]   There can be no question that the whole workplace feud had a damaging effect on Ms Bezuidenhout's psychological wellbeing. She became petrified of people entering her personal space; she had sleepless nights over it; and dreamt of it. The Court a quo correctly found that Mr Motloba did not dispute that "in consequence of the incident, Bezuidenhout broke down in tears and that she was affected by Motloba's tirade to the extent that she was diagnosed as suffering from post-traumatic stress syndrome." Mr Niehaus contended that there was no evidence that Ms Bezuidenhout broke down in tears at the time of the incident. I do not read the judgment of the Court a quo to be saying that she broke down in tears at the time of the incident. There was clearly evidence, by Ms January, to the effect that later on the day in question, following the discussion she had with Ms Bezuidenhout in which the latter expressed her unhappiness with Mr Motloba's outburst, she saw her crying. She also cried on the next day when she was interviewed by Scheepers concerning the acts.

[51]   Mr Niehaus's submission that Mr Stigant had no means of stating that the PTSD Ms Bezuidenhout was suffering from related to the incident is irreconcilable with Mr Stigant's evidence that the PTSD was the direct result of the episode. To my mind, the fact that Ms Bezuidenhout did not undergo treatment for her condition cannot avail Mr Motloba as a defence. It is also of no moment that Mr Stigant's assessment was conducted six months following the event.

[52]   I am not swayed that, on the objective consideration of all the facts, Johnson Controls' response to the episode was completely disproportionate and patently unfair. The argument that the charges were trumped-up and actuated by the impact of the incident of 24 June 2010 on Ms Bezuidenhout psychological wellbeing is unpersuasive.

[53]   A simple apology may have resolved the issues. Instead, an obstinate trivialization of incident and the denial that the event was inappropriate pervades the record. The misconduct for which Mr Motloba was charged was serious. He showed no contrition. Although he intimated that he learned from this experience as a leader not to permit his constituency to approach matters in the manner that they did, he denied that he made a mistake in approaching Ms Bezuidenhout with the group of approximately 20 employees. I am satisfied that the sanction of dismissal meted out was appropriate in the circumstances of this case.

[54]   To sum up, the Court a quo was right in holding that the arbitrator committed a gross irregularity by failing to properly apply his mind to the evidence and to the extent that he applied the incorrect "anything goes" approach propounded in Harvestime Corporation. These irregularities had a distorting effect on the outcome of the arbitration and vitiate the award. It follows that the appeal must fail.

[55]   I am satisfied that it is in accordance with the requirements of law and fairness that NUMSA, the appellant, be ordered to pay the costs of this appeal. Resultantly, I make the following order:

Order

  1. The appeal is dismissed with costs.