CASE LAW UPDATE

Facts: The first respondent was previously married to the second respondent, as a same-sex couple, and their marriage was formally dissolved in 2020. During the marriage, a minor child, a girl named WML, was born through a surrogate motherhood agreement. The first respondent is the biological father of WML. Following the divorce between the first and second respondent, the applicant married the first respondent (also as a same-sex couple). Before their marriage, the first respondent had a second child, LM, through a surrogacy agreement. LM was born after the first and the second respondent divorced and before the first respondent could marry the applicant. The applicant and the first respondent were married in 2023, and their marriage is still in subsistence. The parties are currently separated, and divorce proceedings are pending. The applicant has two biological children who were born through a surrogate agreement before his relationship with the first respondent. During the marriage, the applicant developed a strong relationship with the first respondent's children, WML and LW. Additionally, WML and LW formed a close bond with the applicant's children, MT and MC. The applicant and the first respondent lived together as a family unit, along with their respective children. However, in 2024, the first respondent left the family home, taking his two minor children, LM and WLM, with him.

Application: The endless dispute between the applicant and the respondents has led to three urgent applications that served before this court. Leigh Pettigrew, an educational psychologist, was appointed as an expert for the applicant, and Terry Dowdall, a clinical psychologist, was appointed as the first respondent's expert. Both experts were directed to urgently conduct an assessment and compile reports setting out their findings and recommendations regarding future contact arrangements between the parties and the minor children that would be in the children's best interest.

Discussion: Children are the soul of society. If we fail them, then we have failed as a society. This matter is not about the applicants or the respondents. It is about the two minor children, WML and LM in the care of the first respondent. The two experts considered the allegations pertaining to the first respondent's alleged abuse of prescription medication and recommended that the first respondent undergo an independent psychiatric and drug assessment regarding his alleged benzodiazepine addiction. The applicant sought an order that the terms of the joint minute signed by the experts be implemented forthwith. The joint minute recommendations proposed that WML spend a total of 7 nights per month with the applicant, 5 of which were school nights. However, WML’s teacher reported that WML behaved badly at school and was disruptive after sleepovers at the applicant’s house.

Findings: It has not yet been established what caused the alleged misbehaviour. The two child experts expressed divergent views on this aspect. The allegations presented by the teacher warrant serious consideration and should not be overlooked or undervalued. It is imperative that an investigation is conducted to ascertain the underlying causes of such behaviour. The two experts have prepared and signed a joint minute. Litigants should not be encouraged to repudiate agreements for tactical reasons. However, the joint minute signed by the experts cannot be allowed to trump or supersede the best interests of the child. This consideration becomes particularly pertinent when new evidence emerges after the finalisation of the joint minute, which suggests that the implementation of the joint minute may compromise the child's welfare. The recommendations of a joint minute are no more than the experts’ common opinion on a matter within their joint expertise and is merely part of the total body of evidence. The court must still determine whether to accept the joint opinion.

Order: Dr Konrad Czech, a forensic psychiatrist, is appointed by the court to finalise his psychiatric and drug abuse assessment and evaluation in respect of the first respondent. The application to have the recommendations contained in the joint minute in respect of the minor child WML is postponed. The applicant and the respondents shall cooperate in the assessment and facilitate the observation of WML in their respective homes, as ordered. See further details of the order from para [97].

LEKHULENI J

Facts: The employer received an unusually large order for recruits. The target had to be met by the applicant, but with a reduced recruitment team. The recruitment manager, who reported to the applicant, had resigned. In the email communicating her resignation, the recruitment manager stated: “There is an unprecedented amount of projects – the first of this scale in the company’s history and with more projects to come.” The applicant travelled to various sites including Rustenburg, Polokwane, Mokopane and Thabazimbi. It was contended that the applicant was required to execute tight deadlines, with extreme workloads, in different parts of the country. She, however, missed the deadline to provide 825 recruits, by one week. The applicant’s manager confirmed that the applicant was required, in addition to the duties she was engaged for, to perform the duties of recruitment manager who had resigned. The manager also confirmed that two other individuals, who were part of the applicant’s team, had resigned and were not replaced.

Application: The employer issued a final written warning to the applicant, who challenged the warning as an alleged unfair labour practice at the CCMA. The commissioner found that the warning did not constitute an unfair labour practice. At some point after the warning was issued, the applicant was dismissed for alleged poor work performance. The fairness of that dismissal was also challenged, and that dispute has followed its own path. There is nothing problematic in that approach. While the unfair labour practice dispute and the dismissal dispute could well have been consolidated, they were not. This application is brought to review and set aside the arbitration award in which the commissioner found that there was no unfair labour practice.

Discussion: The employer issued to the applicant a notice summoning her to attend a disciplinary hearing to face a single charge relating to the poor quality of her work. The employer later retracted the notice to attend the disciplinary hearing. The employer also retracted its offer of a mutual separation agreement, and advised that it no longer intended to engage in a performance management process. The applicant was notified that she had been issued with a final written warning which related to a charge of negligence and carelessness. It was common cause that the applicant was not given a hearing before the warning was issued to her. Instead, her manager testified that she had several prior conversations with the applicant regarding her alleged non-performance. The applicant testified that her recruitment team had been reduced from 8 to 3 individuals. She also testified that “it was the running joke in the department about the deadlines, and how it’s, it’s really not going to be possible.” On another occasion, she stated that the deadlines were ridiculous.

Findings: There is a fine line between misconduct related to negligence and poor work performance related to incapacity, but the distinction remains important. The distinction boils down to culpability. Before taking action, employers must examine the reasons for the non-performance carefully. Unattainable targets, inadequate resources, or unreasonable expectations all align more closely to incapacity than misconduct. The parties and the commissioner blurred the boundaries between incapacity related poor work performance and poor work performance arising from negligence. It was common cause that the workload of the applicant was extreme and the team to whom the work was assigned was significantly reduced. In such circumstances, it would have been proper for the commissioner to consider whether the applicant’s alleged failure to meet deadlines was simply the result of indifference or wilfulness. This was not explored in evidence, and was not explored by the commissioner either. On the evidence before the commissioner, regardless of whether deadlines were actually missed, no conclusion was warranted that the applicant was negligent or careless in the execution of her duties.

Order: The arbitration award is reviewed and set aside. The final warning is declared an unfair labour practice and is set aside. There is no order as to costs.

DANIELS J

Facts: The respondents were charged with misconduct which was said to have taken place whilst at their workstations over a period of almost two years and related to the appointment and payment of ghost employees. The complaint was that the respondents had been involved in the appointment and salary adjustment of two ghost employees, Mabena and Mataba, as educators at Isiqalo Primary School, despite knowing that this was wrong. In addition, the fourth respondent was alleged to have been involved in the extension of the contracts of the same ghost employees and the fifth respondent was alleged to have been involved in the appointment of a further two ghost employees, Kekana and Mabeyo, at both Isiqalo and Munsieville Primary Schools. Following a disciplinary hearing, the respondents were found to have committed the misconduct alleged and were dismissed from their employment. Dissatisfied with their dismissals, the respondents referred an unfair dismissal dispute to the General Public Service Sectoral Bargaining Council, challenging only the substantive fairness of their dismissals.

Appeal: The arbitrator concluded that the appellant’s case was “highly improbable and not convincing at all” and had been based on a presumption, which was successfully rebutted, that if an employee’s credentials were used, they could be presumed to have committed the fraud. The evidence was found not to support a finding of fraud, and the dismissal of the respondents was found to be substantively unfair. The respondents were consequently reinstated retrospectively. The appellant sought the review of the arbitration award, at the Labour Court. That application was dismissed on the basis that the appellant’s version was not probable. The appeal, with the leave of the Labour Court, is against the judgment and orders of that court.

Discussion: The respondents were charged by the appellant with having been involved in the appointment and payment of ghost employees over a period of almost two years. The undisputed evidence before the arbitrator was that Mr Mothlang had obtained the respondents’ PERSAL credentials, including their passwords, which he used to effect the fraudulent transactions. Importantly, what the evidence showed was that Mr Mothlang had repeatedly obtained the respondents’ passwords, which the respondents updated monthly, over an extended period of time. The evidence of the third respondent that the employees changed their passwords on the PERSAL system monthly was not disputed by any of the other respondents. Yet, none of the respondents were able to explain how Mr Mothlang could repeatedly have obtained their updated passwords. In addition, the undisputed evidence was that the third respondent had appended her signature to the form appointing a ghost employee which had been brought to her for processing by Mr Mothlang. The arbitrator took an unduly narrow and technical approach to the charge sheet, finding that the respondents “were never charged in relation to the condition of their PERSAL credentials but were charged for actual theft”. This in circumstances in which it was apparent that the disciplinary complaint against the respondents was that they had been involved in the fraudulent appointment and payment of ghost employees.

Findings: The arbitrator failed to have regard to all the evidence before him, including that which was not disputed, and to carefully weigh it up in the required manner. It was a relevant consideration which required the careful attention of the arbitrator that the respondents failed to tender any explanation as to how Mr Mothlang could have repeatedly obtained their updated passwords over a period of almost two years. Their failure to proffer any such explanation was glaring, more so given the undisputed evidence that they had repeatedly and regularly reset their own passwords. The appellant’s policy expressly required that passwords should not be shared, with the user employee responsible for all activity performed using their PERSAL credentials. The arbitrator committed a material misdirection in preferring certain aspects of the evidence over others, without having regard to whether such evidence was plausible or tenable, and in the absence of a proper assessment of the probabilities. In its approach to the review application, the Labour Court erred in its conclusion that the award of the arbitrator was reasonable. This when it was apparent that the arbitrator’s failure to undertake a proper and careful analysis of the evidence had a distorting effect on the outcome at arbitration. Since the conspectus of evidence was not properly considered in the manner required, the decision of the arbitrator fell outside of the ambit of reasonableness.

Order: The appeal is upheld. The orders of the Labour Court are set aside and substituted. The review application succeeds. The award of the arbitrator is set aside with the dismissal of the respondent employees found to be procedurally and substantively fair.

SAVAGE ADJP

Facts: Sibanye Gold (applicant) is a subsidiary to Sibanye Stillwater and it had employed the third respondent, Mr Mafuna, in various positions for a period of 35 years but at the time of his dismissal he had been occupying the position of security supervisor for a period of 11 years. Mafuna had posted three groups of his subordinates to attend to an arrest of illegal miners coming out of a shaft at the mine. The illegal miners were arrested and there were bags seized from them by Mafuna and his team as they are responsible for the security of the mine. Mafuna was charged with gross neglect of duty in that he contravened the search and seizure processes at work, or that he failed to exercise control in respect of the evidence seized from the illegal miners. The other charge related to dishonesty in that he failed to declare the correct number of the amalgam balls seized from the illegal miners. The third charge was unauthorised removal of company property and lastly, gross dishonesty in respect of the fact that Mafuna had not reported the alleged violations relating to the mishandling of the evidence seized from the illegal miners. Pursuant to a disciplinary enquiry, Mafuna was found guilty of the charges and the chairperson of the enquiry recommended the dismissal of Mafuna and he was dismissed. Mafuna challenged the dismissal by referring a dispute to the CCMA.

Review: The applicant launched an application in terms of section 145 of the Labour Relations Act 66 of 1995 to review and set aside the arbitrator’s award. The commissioner found the dismissal of Mafuna to be substantively unfair and ordered the applicant to reinstate Mafuna retrospectively and to pay him backpay equalling thirteen months’ salary. The commissioner further ordered the applicant to issue a written warning valid for a period of three months for the misconduct relating to the neglect of duties.

Discussion: It is common cause that Mafuna has been dismissed and in terms of section 185 of the LRA every employee has a right not to be unfairly dismissed. In terms of section 188(1)(a)(i), a dismissal that is not automatically unfair, is unfair if the employer fails to prove that the basis of such a dismissal is for a fair reason relating to the misconduct committed by the employee. The question, therefore, is whether Sibanye Gold has tendered evidence before the commissioner which proves one of the many allegations raised with the employee. Not only did Sibanye Gold succeed in proving that Mafuna was derelict of his duties in as far as the handling of the evidence seized from the illegal miners but he, himself, had admitted to such a dereliction of duties during his testimony. Therefore, on the construct of the provisions of section 188(1)(a)(i) of the LRA, there is a fair reason relating to Mafuna’s conduct of gross neglect of duties and on that basis alone, dismissal must be fair. The commissioner failed to provide reasons why dismissal effected by Sibanye Gold was inappropriate in the circumstances where Mafuna had committed serious misconduct relating to dereliction of duties.

Findings: The fact that the commissioner failed to provide reasons why dismissal was inappropriate indicates that he did not consider such an issue and instead he chose to apply progressive discipline in the circumstances where section 188 clearly provides that where there is a fair reason relating to the conduct, fairness exists. Commissioners cannot interfere with the sanction of the employer unless such a dismissal is unfair. In this case, the commissioner has interfered with the employer’s sanction of dismissal in circumstances where he found that Mafuna has been derelict of his duties. Thus, a fair reason for Mafuna’s dismissal existed and the commissioner has committed an irregularity in this regard. The commissioner found that Mafuna was guilty of neglect of duties and despite this finding, he proceeded to find that dismissal was not an appropriate sanction. Consequently, there is a misalignment between the finding and the sanction imposed. The commissioner failed to take into consideration the fact that Mafuna’s position, in that he is a senior officer given that he is a security supervisor. This position is one of trust and there is a certain level of care required of the person holding the position. On the evidence which was placed before the commissioner and before the court, it is apparent that the dismissal of Mafuna was substantively fair.

Order: The arbitration award is reviewed, set aside and substituted. The dismissal of Mafuna (third respondent) was substantively fair.

NONDWANGU AJ