In Sol Plaatje Municipality v South African Local Government Bargaining Council and Others [2021] 11 BLLR 1096 (LAC), Mr Botha and Mr Fritz (collectively, the employees) were employed by the Sol Plaatje Municipality as carpenters. The employees were instructed to repair the roof and ceilings of a community hall in Kimberley. While doing so, the employees dismantled an air conditioner and attempted to sell the parts to a scrap metal dealer. The parts were subsequently confiscated and secured at the premises of the municipality. Notwithstanding this, the employees thereafter sought to coerce the security official on duty to provide them with access to the parts.
As a result, the employees were subjected to disciplinary action and were charged with, among other things –
The disciplinary hearing proceeded in the absence of the employees after they had left the hearing with their union representative. The presiding officer found that the employees were guilty as charged and that dismissal was the only appropriate sanction.
An unfair dismissal dispute was referred to the South African Local Government Bargaining Council, where one, Mr Botha testified on behalf of both the employees. The arbitrator found Mr Botha to be an evasive and unreliable witness. Notwithstanding this, the arbitrator concluded that the employees were not guilty of certain charges because it had not been demonstrated that the employees had sold the parts, but rather that they merely had an intention to do so. Further, the arbitrator rejected the arguments made on behalf of the municipality that the employees were guilty of ‘derivative’ or ‘team’ misconduct. As a result, the arbitrator held that the dismissals of the employees were unfair, and the employees were reinstated with back-pay.
The municipality sought to review and set aside the arbitrator’s award. The Labour Court, however, found that the municipality had not established a basis on which the court could find that the arbitrator’s award was reviewable and consequently dismissed the review application. Thereafter, the municipality took the matter on appeal on the grounds, inter alia, that the probabilities were that the employees had stripped the air conditioners with the intention of misappropriating the parts and selling them and that the outcome of the award was unreasonable.
The only issue on appeal was whether it could reasonably be found on the evidence that the employees had committed misconduct involving dishonesty and whether the sanction of dismissal was appropriate. The Labour Appeal Court (LAC) reiterated that it had been repeatedly held that charges in disciplinary proceedings need not be drafted with the precision of those in criminal matters, and that an overly technical approach to the framing and consideration of disciplinary charges should be avoided. There is also authority that if the main charge of misconduct is not proved, but an attempt to commit such misconduct is proved, the employee may be found guilty of such an attempt on that same charge.
The LAC found that not only did the arbitrator err in his interpretation of the charges and adopted an overly technical approach, but he also overlooked crucial facts that led him to unreasonably conclude that some of the charges had not been proved against the employees concerned. It was clear from the evidence that the dismantling of the air conditioner by the employees was wrongful and unlawful. When confronted by the security official, the employees, either brazenly or naively, informed him that they were there to make a deal to sell the parts. The employees accordingly had not only intended to strip and sell the parts but acted with that intention. The parts were then confiscated and taken back to the municipal premises, after which the employees still tried to remove those parts through dishonest means and coercion.
Taking all the evidence into account, the LAC held that the only reasonable inference to be drawn is that the employees intended to sell the parts after having removed them. They were caught in the process of doing so. They acted in concert and their acts were not only without the authority of the municipality but were dishonest. Accordingly, although the employees could not be found guilty of selling the parts, they could have been found guilty of attempting to steal and sell the parts for their own gain.
The extensive damage caused to the municipality’s property, the cost of replacing the air conditioner, and the dishonesty was sufficiently serious to warrant a dismissal. The LAC concluded that this is what a reasonable arbitrator should have found considering the relevant facts.
The appeal was upheld.
Does a proposed severance package constitute a settlement agreement?
In Perumal v Clover SA (Pty) Ltd [2021] 11 BLLR 1143 (LC), the employee, employed by Clover SA (the Company), was invited to participate in retrenchment consultations. During the consultation process, the employee requested a breakdown of his severance package. Thereafter, a manager of the Company issued the employee with a letter, alleged to be an ‘agreement’, in terms of which it was stated that the employee was to be retrenched and setting out the severance package that the employee would receive.
The Company subsequently withdrew the letter, claiming that it had been erroneously issued to the employee. The Company reiterated to the employee that his employment had not been terminated and that the consultation process was continuing with a view to establish whether there were alternatives to avoid retrenchment. Thereafter, the Company decided that there was no need to retrench the employee and advised the employee that his position would no longer be affected by the proposed restructuring.
The employee sent correspondence to the Company indicating that he did not accept the withdrawal of the ‘agreement’ and that the Company was required to pay him the severance package. The employee thereafter refused to report for duty. As a result, the Company instituted disciplinary action against the employee, and he was subsequently dismissed.
Six months later, the employee instituted an application in the Labour Court (LC) to have the ‘agreement’ made an order of court in terms of s 158(1)(c) of the Labour Relations Act 66 of 1995 (the LRA).
The court noted that s 158(1)(c) of the LRA empowers the LC to make an arbitration award or settlement agreement an order of court. This section must be read with s 158(1A) of the LRA, which defines a settlement agreement as a written agreement in settlement of a dispute that a party may refer for arbitration or for adjudication to the LC. Section 158(1)(c) accordingly does not oblige the LC to make a settlement agreement an order of court. The court has a discretion to do so but may not do so if the agreement does not comply with the criteria set out in s 158(1A).
The question was thus whether the ‘agreement’ satisfied the criteria set out in s 158(1A) of the LRA and should be made an order of court. In this regard, the employee submitted that the agreement should be made an order of court as it concerned a matter that is capable of being arbitrated as it involved a retrenchment. In turn, the Company submitted that the employee was not retrenched and that the agreement accordingly did not seek to settle any dispute.
Applying the criteria set out in
s 158(1A), the court found it highly improbable that the Company would have continued with the consultation process if it had agreed to retrench the employee. Furthermore, the facts indicated that the Company had made it clear to the employee that he had not been retrenched and that there was no agreement to justify the termination of his employment. Thereafter, the employee returned to work and was paid his salary. The court struggled to understand how the employee could have interpreted the factual position as one where he had been retrenched.
In the circumstances, the employee had failed to demonstrate that there was a dispute that was settled relating to a retrenchment. The court found that absent a retrenchment, there could be no dispute, let alone one that the employee was entitled to refer to arbitration or adjudication by the court. As the ‘agreement’ did not satisfy the criteria set out in s 158(1A) of the LRA, the court held that it did not have the discretion to make the agreement an order of court.
The application was dismissed.
Nadine Mather BA LLB (cum laude) (Rhodes) is a legal practitioner at Bowmans in Johannesburg.
This article was first published in De Rebus in 2022 (Jan/Feb) DR 38.
