South Africa: Johannesburg Labour Court, Johannesburg

THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case
No: JR133/21

In
the matter between:

SASOL SOUTH AFRICA
(PTY) LTD

SASOL
OPERATIONS                                                       

Applicant

and

THE NATIONAL
BARGAINING COUNCIL

FOR
THE CHEMICAL INDUSTRY                                     

First Respondent

HASINA
DOCKRAT                                                           

Second Respondent

SOLIDARITY
OBO LOUIS CONROY                                

Third Respondent

Heard:
17 October 2024

Delivered:
30 May 2025

(This
judgment was handed down electronically by emailing a copy to the
parties. The 30 May 2025 is deemed to be the date of
delivery of
this judgment).

JUDGMENT

MAHALELO, AJ

Introduction

[1] 
This is an
application brought in terms of section 145 of the Labour Relations
Act[1] (LRA) to review and set
aside the arbitration award (the award) of the second respondent
acting under the auspices of the first
respondent under case number
CHEM33-19/20, dated 10 December 2020 in which the commissioner found
the dismissal of Mr Louis Conroy
(Conroy) to be procedurally fair but
 substantively unfair and ordered his reinstatement.

[2] 
At arbitration level the nub of the dispute that had to be determined
by the commissioner was whether the dismissal sanction
endured by
Conroy occasioned by him assaulting a co-worker at the workplace was
justifiable.

[3] 
Solidarity on behalf of Conroy opposed the application.

Background
facts

[4] 
The applicant conducts business in the production of cyanide. Conroy
was employed with the applicant in a maintenance
function since 5
August 1985. At the time of his dismissal he was employed as a
Special Artisan, Mechanical Fitter with a basic
salary of R38 960.62
plus benefits.

[5] 
In the applicant’s Disciplinary Code, a conviction of assault
is regulated by indicating that dismissal is appropriate
even for a
first offence. The applicant regards assault as one of the “Cardinal
Sins” for which it has adopted a zero
tolerance approach. Even
though the applicant’s Disciplinary Code indicates that
mitigating and aggravating factors could
determine that a deviation
in the discretion of the chairperson could occur, it also states that
serious offences warrant dismissal
on the first occurrence
irrespective of the general precedent.

[12] 
The test for reviewability of the arbitration award is trite. It is
that the court of review must decide whether the
decision reached by
an arbitrator is one that a reasonable arbitrator could not reach.[2]

[13] 
In Gold Fields
Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and others[3],
the test in Sidumo
was refined by introducing a two staged enquiry. In doing so the
court held:

“Sidumo does not
postulate a test that requires a simple evaluation of the evidence
presented to the arbitrator and based on that
evaluation, a
determination of the reasonableness of the decision arrived at by the
arbitrator. The court in Sidumo was at pains
to state that the
arbitration award made under the Labour Relations Act continue to be
determined in terms of section 145 of the
LRA but that the
constitutional standard of reasonableness is suffused in the
application of s145 of the LRA. This implies that
an application for
review sought on the ground of misconduct, gross irregularity in the
conduct of arbitration proceedings, and/or
excess power will not lead
automatically to a setting aside of the award if any of the above
grounds are found to be present.  In
other words, in a case such
as the present, where a gross irregularity in the proceedings is
alleged, the enquiry is not confined
to whether the arbitrator
misconceived the nature of the proceedings, but extends to whether
the result was unreasonable, or put
another way, whether the decision
that the arbitrator arrived at is one that falls in a band of
decisions to which a reasonable
decision maker could come on the
available material.”

[14] 
In Herholdt
v Nedbank
Ltd[4]
the court held:

“[25]   …
Material errors of fact, as well as weight and relevance to be
attached to particular facts are not in
and of themselves sufficient
for an award to be set aside but are only of any consequence if their
effect is to render the outcome
unreasonable.”

[15] 
Mere errors or irregularities are not sufficient to vitiate the
award. To warrant interference from a review court, the
award must be
disconnected from the evidence resulting in an unreasonable
outcome[5] and/or the failings,
errors, irregularities or misconduct must have resulted in the award
ultimately being unreasonable.[6]
In Makuleni
v Standard Bank of SA (Pty) Ltd and others[7]
the LAC cautioned this Court not to “yield to the seductive
power of a lucid argument that the result could be different”

because that is the luxury and privilege reserved for the court of
appeal. The LAC continued that it is only if the conclusion
reached
by the commissioner is untenable that the review court will be
justified in reviewing and setting aside the award.

[16] 
Ultimately, the applicant in this case is required to establish that
the award was one that could not have been made
by a reasonable
decision-maker on the evidence presented.

Evaluation

[17] 
Item 7 of the Code of Good Practice, deals specifically with the
requirements to be considered in determining whether
dismissal for
misconduct is fair. It must be considered whether “….dismissal
was an appropriate sanction for the contravention of the rule or
standard …”[8]

[18] 
In terms of Schedule 8 of the Code of Good Practice Dismissal: a
dismissal is unfair if it is not effected for a fair
reason and in
accordance with a fair procedure, even if it complies with any notice
in a contract of employment or in legislation
governing employment.
The schedule further provides that the determination of whether or
not a dismissal is for a fair reason is
determined by the facts of
the case, and the appropriateness of the dismissal as a penalty. The
key question which an arbitrator
has to ask himself or herself is
simply, as was put in Engen
Petroleum Ltd v CCMA and others[9]
“Is
the dismissal fair”

[19]  In dealing
with this issue in the case the LAC had this to say:

“The
ordinary and natural meaning of the word fair suggests that
commissioners must answer that question on the basis of their own

sense of fairness. The question cannot possibly be answered on the
basis of somebody else’s notion of fairness. This was the position

adopted by the court under the 1956 LRA. There is no basis for
assuming that the position has changed under the current LRA.[10]

[20]  It has been
consistently held by the courts that the responsibility for
determining the appropriateness of dismissal
as a penalty is a matter
to be left to the discretion of the arbitrator. In this respect the
Constitutional Court in Sidumo said the following:

“[75]
  It is a practical reality that, in the first place, it is the
employer who hires and fires. The act of dismissal forms
the
jurisdictional basis for a commissioner, in the event of an
unresolved dismissal dispute, to conduct an arbitration in terms
of
the LRA. The commissioner determines whether the dismissal is fair.
There are, therefore, no competing discretions. Employer
and
commissioner each play a different part. The CCMA correctly submitted
that the decision to dismiss belongs to the employer,
but the
determination of its fairness does not. Ultimately, the
commissioner’s sense of fairness is what must prevail and
not
the employer’s view. An impartial third-party determination on
whether or not a dismissal was fair is likely to promote labour

peace.”

[21] 
The Constitutional Court went further that:

“[78] 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 had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee’s
challenge to the
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.”[11]

[22] 
Following on the judgment of Sidumo,
a number of principles were crystallised out that would require
consideration in assessing whether the sanction of dismissal is
fair.
The further principles are the issue of the breakdown of the trust
relationship between the employer and employee, the existence
of
dishonesty, the possibility of progressive discipline, the existence
or not of remorse, the job function and the employer disciplinary

code and procedure.[12]

[23] 
In his book titled Dismissals[13],
Grogan says the following:

“In the employment
context, factors that should be considered before imposing a sanction
on an employee even for a proven assault
include the circumstances in
which the assault took place, the degree of force used or the gravity
of the threat, the relationship
between the employee and the
complainant, and the effect of assault on interpersonal relations and
the business of the employer.

[24] 
The outcome of the arbitration award is not unreasonable. It is my
view that with all the evidence that was presented
before the
arbitrator, he could not find anything other than that the dismissal
of Conroy was substantively unfair. The arbitrator
therefore made no
material errors of law, committed no irregularity or misconduct
because he took all the evidence in its totality
in determining that
the applicant had failed to prove its case on the sanction against
Conroy. It was necessary for the commissioner
to embark on
probabilities even though there was no dispute about the fact that
Conroy had committed the offence because at the
end of the day, he
still had to determine the fairness of the dismissal. Even if I am
wrong in this conclusion, I do not think
that this error is enough to
vitiate the award.[14]

[25] 
In my view the commissioner made an appropriate assessment of the
evidence placed before her, particularly the evidence
tendered on
behalf of the applicant with regard to the treatment of the so-called
“Cardinal Sins”. The commissioner
acknowledged the
seriousness that the applicant applied to assault cases and that it
was a dismissible offence according to the
applicant’s
Disciplinary Code of Conduct even for a first offence. It is however
evident from the record that the applicant
was blinded by the
emphasis it placed on the seriousness of the sanction of dismissal
for Cardinal Sins offences under any circumstances
and failed to
consider mitigating factors to the offence so as to establish a fair
sanction for Conroy.

[26] 
From the reading of the award it is clear that the commissioner also
considered the applicant’s Disciplinary Code
for employees in
relation to assault where the recommended sanction for assault is
dismissal even for a first offence. It is abundantly
clear that she
attached sufficient weight to the consequences to the applicant
should it as the employer allow Cardinal Sins such
as assault to be
treated inconsistently.

[27] 
It is also clear that the commissioner considered the applicant’s
sanction of dismissal and from all the evidence
placed before her,
she considered dismissal to be unfair. She correctly and factually
considered amongst others the following mitigating
factors:

27.1  Conroy
apologised immediately to Phoolo. He again sent a WhatsApp message to
him on the evening of the incident apologising
for the incident;

27.2  Phoolo
accepted Conroy’s apology and did not want to press any charges
against him.

27.3  Phoolo and
Conroy were colleagues for 28 years and this was the first time that
Conroy made a transgression in his 35
years of service with the
applicant.

27.4  Conroy
reported the incident himself; he was aware of the wrong that he had
committed thereby demonstrating remorse and
he requested to attend
anger management courses through ICAS in order to know how to handle
himself in future instances of similar
nature.

27.5  Conroy
continued to work with Phoolo until the date of his final dismissal
which was almost a year after the incident
had occurred.

27.6  Mr Kevin
Moodley, the applicant’s senior manager who acted as the
complainant in the disciplinary hearing of Conroy
proposed an
alternative to dismissal i.e suspension.

27.7  Conroy
appealed the first hearing’s sanction of dismissal on 6 June
2019 and it was replaced with a final written
warning and two weeks
suspension without pay on 13 June 2019.

[28] 
The commissioner factually and correctly took into account the time
it took for the applicant to charge Conroy with misconduct
and the
reasons for the delay. In my view, it is correct that the applicant
did not see Conroy as a threat to his organisation
that is why he
allowed him to work for him for almost a year after the incident.

[29] 
The applicant contended that the commissioner committed an
irregularity in finding that the applicant provided no evidence
to
prove that there was a breakdown of the relationship between the
applicant and Conroy, because the nature of the misconduct
deemed it
unnecessary to lead evidence on the breakdown in the trust
relationship.

[30] 
The circumstances of this case did not justify the dismissal of
Conroy or implied a breakdown of the trust relationship.
It is clear
that no conclusion could have been made from the facts of this matter
that the nature of the offence on its own had
led to irreparable
damage of the employment relationship between the relevant parties.
Conroy continued with his employment with
the applicant after his
first disciplinary inquiry, there were no incidents, which was an
indication that the trust relationship
did not breakdown
irretrievably. He continued to work for the applicant right through
the appeal process which lasted for a year
since the incident. Under
these circumstances it was necessary for the applicant to demonstrate
a breakdown in the trust relationship.

[31] 
The arbitrator in this case cannot be faulted for arriving at the
conclusion that the dismissal was unfair because of
the severity of
the sanction. Conroy was   remorseful for his actions. The
facts of this case are different from the
facts in the case of Hulett
Aluminium. (Pty) Ltd v Bargaining Council for Metal Industry and
Others[15], 
where the court held that:

“ It
would, in my view, be unfair for the court to expect the applicant to
take back the employee when she has persisted with her
denials and
has not shown any remorse. An acknowledgment of wrongdoing on the
part of the employee would have gone a long way in
indicating the
potential and possibility of rehabilitation, including an assurance
that similar misconduct would not be repeated
in the future.”

[32]  The present
case can be distinguished from the cases of the other applicant’s
employees who were dismissed by the
applicant for assault. In the
present case it is not in dispute that Conroy performed his duties
well for 35 years. He was competent
and efficient in what he was
employed to do. Unlike the employee in Hulett Aluminum, he
owned up to his wrongdoing and soon apologized to Phoolo and reported
himself to his supervisor. He was also willing to undergo
anger
management courses so as to make sure that he does not repeat the
wrong in future.

[33] 
In conclusion, it is clear from the record of arbitration that the
commissioner properly identified the issues which
were before her and
reached a decision that a reasonable arbitrator would have reached.
There were no flaws in her reasoning, she
applied her mind on the
relevant considerations and took into account all of the material
factors. She considered the applicant’s
sanction of dismissal
for Cardinal Sins even for first offenders and from the evidence
placed before her, correctly considered
it to be unfair to dismiss
Conroy under the circumstances of the case. There were overwhelming
mitigating factors on the part of
Conroy which she took into account
in arriving at her conclusion. There is no evidence that shows that
she acted grossly negligent
when she performed her duties or that she
exceeded her powers in any manner. In my view,
there is no basis for interfering with the decision of the
commissioner.

[34] 
For reasons given above, the review application stands to fail.

Costs

[35] 
In terms of section 162 of the LRA, the Court has wide discretion in
awarding
costs.
The
Constitutional
Court has
recently
reiterated
in
Zungu
v
Premier
of
the
Province of Kwa-Zulu Natal and Others,[16]
that costs
orders should be made
in
accordance
with
the
requirements
of
law
and
fairness.
In
this
matter,
the
requirements
of
law
and
fairness
dictate
that
there
should
be
no
order
as
to costs.

[36] 
In the result, the following order is made:

Order

1. 
The application to review and set aside the arbitration award issued
under case number CHEM33-19/20, dated 10 December 2020 is
dismissed.

2. 
There is no order as to costs

M
B. Mahalelo

Acting
Judge of the Labour Court of South Africa

Appearances:

For the Applicant: D.O
Pretorius  

Instructed by: Fluxmans
Inc

For the Respondent: H Van
Der Hoven

Instructed by: Solidarity