National Union of Metalworkers of South Africa obo Baloyi and others / O­Line (Pty) Ltd [2019] 5 BALR 522 (CCMA)

Division: Commission for Conciliation, Mediation and Arbitration

Date: 13/11/2018

Case No: MEGA50052

Before: R Jonathan, Commissioner

Referral in terms of section 191(5)(a)(i) of the LRA

Dismissal ­ Misconduct ­ Accusation of racism ­ Employees falsely accusing CEO of using racist expression ­ Dismissal fair.

Editor’s Summary

The four applicant employees were dismissed for claiming that the respondent’s CEO had called them “k*****s” and sworn while remonstrating with them for playing cards. The respondent denied that the CEO had used any racist expression.

The Commissioner noted that the employees had been issued with final written warnings for playing cards, and had later been charged with making false allegations against the CEO. The employees had consulted their union, which had advised them to make the allegation of racism if they were charged for playing cards. Furthermore, the employees had claimed that the CEO had spoken in Afrikaans, when he could not speak that language. The probabilities indicated that the charge of racism was false. The employees had themselves conceded that dismissal would be appropriate if they indeed made false allegation of racism against the CEO.

The employees’ dismissal was upheld.

Award

Details of hearing and representation

1. The unfair dismissal dispute was scheduled for arbitration in terms of section 191(5)(a) of the Labour Relations Act 66 of 1995, as amended (herein referred to as the “LRA”). The hearing was concluded at CCMA House in Johannesburg on 23 October 2018. The proceedings were digitally recorded. The applicants, Mr G Baloyi, Mr L Ndhlovu; Mr J Mabunda and Mr F Ndhlovu were represented by Mr M Mdletshe an official for the National Union of Metalworkers of South Africa (“NUMSA”). The respondent, O­Line (Pty) Ltd was represented by Mr D Skinner an official from Steel and Engineering Industries Federation of South Africa.

At the conclusion of the arbitration proceedings the parties requested to submit written closing arguments. This request was exceeded to [sic]. The final date of submission of closing arguments was to be the

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30 October 2018. At the time of concluding this arbitration award I had not received any closing arguments from either of the parties.

Issue to be decided

1. I am required to determine whether the applicants’ dismissal was substantively fair.

Background to the issue

1. At the commencement of the proceedings the respondent submitted a bundle of documents marked “A to M” of which all the documents were agreed to be what it purports. The applicant submitted documents marked B which was numbered “1 to 99” which was agreed to be what it purports. The following were also agreed as common cause facts and facts in dispute:
   1. The applicants were employed as follow;

• 1. The following was also agreed as common cause issues:
     1. The applicants were playing cards at the outside of the respondent’s premises on 7 October 2016 during their tea break.
     2. Mr Smart, the Chief Executive Officer (“CEO”) of the respondent stopped, with his vehicle at the gate and called at the applicants. He called them verbally and with a crooked finger to his vehicle.
     3. He got out of his car and walked towards the applicants angrily and used the word “the f*ck” word while addressing them.
     4. The applicants attempted to talk to Mr Smart after the incident in his office but he refused to give them a hearing.
     5. The applicants were issued with a notice to attend a disciplinary hearing which was held on 17 October 2016.
     6. In the morning of the scheduled disciplinary hearings, the applicants’ submitted grievances to the Human Resource manager wherein they alleged that Mr Smart called them “K*ffirs” (herein after will refer to the K­word) on 7 October 2016 while admonishing them for playing cards outside the respondents’ premises.
     7. The applicants were found guilty of insubordination in that they did not adhere to an instruction that they should not

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play cards outside the gate of the respondent and was issued with Final Written Warnings.

• • 1. The applicants were issued with notices to attend a disciplinary hearing for making a false accusation of racism against Mr Smart in their grievances. The hearing was scheduled to be heard on 31 October 2016. The outcome of the hearing was summary dismissal.
    2. The applicants’ appealed against the outcome of the disciplinary hearing and the issue which was addressed in the appeal was that the CEO Mr Smart called the applicants’ as idiots and directed the F­word towards them.
    3. All the applicants’ in their grievance alleged that Mr Smart used the K­word towards them.
  1. The applicants challenged their dismissal on the basis that they did not transgress the rule since Mr Smart indeed used the K­word when he addressed them about playing cards outside the gate. In the event that the respondent establishes that the applicants were guilty of misconduct, the applicants’ will argue that the sanction was too harsh.
  2. The applicant further submitted that their dismissals were procedurally unfair since the respondent did not deal with their grievances within the stipulated timeframe.
  3. The applicants sought retrospective reinstatement with full back pay as relief.

1. Section 192 of the LRA provides that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. After the existence of the dismissal is established, the employer must prove that the dismissal is fair.

Survey of evidence and argument

1. Section 138(7)(a) of the LRA requires a brief summary of evidence be presented and reasons relevant to the dispute. The following does not reflect all the evidence and arguments heard and considered in deciding this matter.

[Numbering as per transcript ­ Ed.]

Respondent’s evidence and argument

1. The respondent presented evidence through Mr Smart the Chief Executive Officer and Mr Loubser the Human Resource Manager.

Applicants’ evidence and arguments

1. The applicants’ presented evidence through Mr G Baloyi, Mr L Ndlovu and Mr S Radimpe the former shop steward of NUMSA.

Analysis of evidence and argument

1. In terms of section 192(1) of the LRA, the applicants must prove that they were dismissed. Once the applicants’ dismissals have been established,

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the respondent bears that onus to prove that such dismissal was substantively and procedurally fair. The existence of the applicants’ dismissals were not placed in dispute and therefore the respondent bears the onus to establish the fairness of the applicants’ dismissals.

1. The applicants were dismissed for deliberately supplying incorrect and /or falsified information related to an accusation the employees had made against the CEO, Mr Smart to the effect that he addressed them with a racist slur (calling them K*ffirs), idiots and other swear words.
2. It is common cause that the applicants’ made this accusation in the form of grievances on 17 October 2016 and this was confirmed during their disciplinary hearing on the same day. This was made during a disciplinary hearing for an unrelated allegation against the applicants.
3. The outcome of the matter will be determined on a finding whether the Chief Executive Officer. Mr Smart, addressed the applicants in a racially derogative term by calling the applicants “K*ffirs” when he reprimanded them for playing cards in front of the factory gate on 7 October 2016. It is common cause that the respondent O­line (Pty) Ltd is an international company and listed on the Johannesburg Stock Exchange. The respondent

and NUMSA are parties of the Metal Engineering Industries Bargaining Council (“MEIBC”). NUMSA has elected two shop stewards, Mr L Tsabalala and Mr S Radimpe, who were recognised by the respondent.

1. I have considered the evidence of both the respondent and the applicants’. The respondent witnesses testified that Mr Smart could not have called them in a racially derogative term since the applicants alleged that he called them the K­word in Afrikaans and that other Afrikaans words was utilised during this altercation. They argued that Mr Smart cannot speak Afrikaans but that he is English speaking. The applicants on the other hand stood by their claim that such racial terminology was used.
2. All parties agreed that it is most offensive and discriminatory to be called the K­word in a democratic society who strives to eradicate discrimination and that this term would be one of the worst to be called. In order to arrive at a decision, I considered what transpired directly after the alleged racial remarks were made and the reaction of the trade union when informed about the remark. The applicants informed shop steward Mr Lucky Tsabalala that same morning about the confrontation with Mr Smart regarding their card playing. They made several attempts to get an audience with Mr Smart in order to explain to him why they played cards outside and possibly apologise for their behaviour. Their intention was never to confront him regarding his alleged racial outburst.
3. The following day, 8 October 2018 [ sic], the applicants went to the NUMSA office together with the two shop stewards, Mr S Radimpe and Mr L Tsabalala. They met with trade union officials’ and they were allegedly advised to submit grievances’ alleging the CEO’s racial remarks only if they were charged for insubordination in that they were playing cards outside the gate. They alleged that they completed the grievance forms that same day and gave it to Mr S Radimpe for submission. The following Monday, 10 October 2018, the applicants was issued with notices to attend a

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disciplinary hearing on 17 October 2018 [sic]. Despite the advice of the trade union officials the grievances were not submitted as advised. Mr Radimpe alleged that he forgot the grievance forms at home. He however did not submit the forms for the following week. There was sufficient time for the applicants to complete new grievance forms but this was never done. The NUMSA officials did not even write a communication to the CEO or the company’s board of directors to complain about the discriminatory behaviour of the CEO. If the applicants indeed reported to the NUMSA officials that the CEO made racial remarks towards them then their advice would have been different given the reputation of NUMSA within the industrial relations sphere of South Africa. They in essence advised that if no disciplinary action was taken that no racial allegations should be made. It should therefore be used as a defence against the disciplinary hearing.

1. Instead of submitting the alleged grievances, Mr Radimpe and Mr Tsabalala went back to the NUMSA office on 15 October 2016 to report that the applicants were charged with misconduct. On Monday 17 October 2016 the grievance forms were submitted before the commencement of the disciplinary hearing. The parties agreed that this was the first time that the respondent was made aware of the alleged racial remarks towards the applicants by the CEO. It is common cause that the actual grievance was written by Mr Radimpe and the applicants signed it. They alleged that Mr Smart addressed them in Afrikaans in that he said: “kom hierso” crooking his finger at them and then got out of his vehicle and went to them shouted and said “f*ck you guys” “you are stupid” “julle k*ffirs” the company is in trouble and you are adding to the problems”. It is this grievance which resulted in the applicant’s dismissal.
2. Mr Smart denied that he can speak Afrikaans and that he would never address a person in Afrikaans since he is from Zimbabwe and is English speaking. He conceded that he was very angry with the applicants and that he possibly called them idiots and used “f*cken” during his address of the applicants but he never made any racial remarks. In addition, why would he make it in a language which he does not speak while he is angry. I requested him to read the grievance and he struggled to pronounce “kom hierso”. Even the applicants during their own evidence testified that Mr Smart called them by saying come here guys.
3. The outcome of the disciplinary hearing of 17 October 2018 [sic] was a final written warning. The applicants were later charged for making false allegations against Mr Smart and was dismissed on 7 November 2016. The applicants were represented by Mr Mdletshe a NUMSA official during this hearing. Subsequent to the applicants’ dismissal appeals were submitted. In their appeals the only complaint was that Mr Smart used the F­word towards them. There is absolutely no mention of the K­word even though it would have been a more serious offence by the CEO.
4. When analysing the facts before me in totality I arrive at the conclusion that the respondent has established that the applicants made false claims against the CEO and that the CEO never called them the K­word but the F­word. There was no racial or discriminatory language used towards the applicants when addressed by Mr Smart the CEO on 7 October 2018. It is

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clear from the evidence of Mr Radimpe that the NUMSA officials probably invented the racial defence on Saturday 15 October 2016 when they had further discussion regarding the applicants’ insubordination charges. It was clearly a defence since they advised Mr Radimpe to only make the allegations if the applicants were charged. In the event that the applicants were not charged, this allegation would never have seen the light of day.

1. In addition, if Mr Smart really made racial remarks towards the applicants’, the seasoned officials of NUMSA knew that they could have referred an unfair discrimination dispute at the CCMA, open a crimen injuria case at the South African Police Service or at the Equality Court and make a referral to the Human Rights Commission. NUMSA could also have addressed a complaint with the board of directors or shareholders of O­Line. This

would surely would have resulted in the suspension of Mr Smart since I am convinced that no company would be like to be associated with a CEO who practice racism within the workplace. The trade union did not follow any of the recourses to their disposal other than to make a threat of laying a complaint with the Human Rights Commission on the day that the applicants were dismissed. This threat was never followed through.

1. I, therefore, find that the respondent has established on the balance of probabilities that the applicants are guilty of making false allegations against the Chief Executive Officer, Mr Smart.
2. I will now consider the appropriateness of the sanction. The applicants argued that in the event that the respondent establishes that they made false allegations, a sanction short of dismissal would be appropriate. The charges against the applicants were of a very serious nature. The same could be said of the allegations which the applicants levelled against the CEO. I am alive that the allegations were probability an out flow of consultations which they had with NUMSA. The applicants however maintained their position and none came forward to say what actually happened before arriving at the conclusion that they should make racial allegations in defence of insubordination charges.
3. The gravity of the charges were such that it could have caused the end of Mr Smart’s career at O­Line and cause severe reputational damage. The reputational damages of the respondent could also have been irreparable. The applicants showed no remorse for their conduct. I have taken note of the length of service of all applicants. They have been employed by the respondent for more than 5 years. Two of the applicants were employed for more than 10 years. The respondent through Mr Smart argued that despite the applicants’ length of service and level of service that he cannot trust them anymore and that he was of the view that dismissal is fair. The applicants during their own evidence acknowledged that dismissal would be fair should the respondent be able to establish that they were guilty of the misconduct they were dismissed for. After taking all circumstances into account and the fact that the misconduct the applicants were dismissed for was dishonesty, I find that dismissal is appropriate.
4. The applicants challenged their dismissal on procedural ground in that the respondent did not address their grievance which they submitted. It is trite

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that the submission of a grievance does not stop disciplinary proceedings. In this instance, I have found that the allegations which the applicants made in their grievance were false and therefore does not need further elaboration or discussion. In addition, it is this grievance which caused the applicants to be charged and dismissed. I therefore find that the respondent has established on balance of probabilities that the dismissals of the applicants was procedurally fair.

Award

1. I find the dismissals of Gift Baloyi; Laurens Ndlovu; Jabulani Mabunda and Frans Ndlovu to be substantively and procedurally fair.
2. The applicant’s case is dismissed.

No cases were referred to in the above award.