|BACKGROUND AND SUMMARY|
|This case involves an opposed application reviewing an arbitration award issued by Emma Levy N.O. (“the Arbitrator”).
Schrenk (“the Applicant”) had been employed by Transnet Port Terminals (“the Company”) for a duration of 34 years. The Applicant was dismissed in September 2016, following allegations that he had made a racist remark to fellow employees. At the time of dismissal, the Applicant occupied the position of a technical supervisor.
On 24 September 2016, the dispute was referred to the Transnet Bargaining Council by the Applicants Trade Union (“UNTU”). The fairness of the dismissal was challenged, and UNTU sought an order reinstating the Applicant at the company.
The Applicant had been suspended on full pay, as from 24 August 2016, awaiting a disciplinary hearing whilst investigations commenced to investigate the alleged racist remarks. The Company followed a formal disciplinary process, holding a grievance hearing on 18 August 2016, prior to suspending the Applicant.
The Applicant was thereafter notified, on 1 September 2016, to attend a disciplinary hearing to be held on 16 September 2016 wherein the allegations of racist and degrading remarks would be discussed. The notification made reference to the alleged racist remarks, explicitly setting out that the Applicant had remarked to fellow employees: “You just want money, money, money, you’re just like a baboon”.
The Applicant denied making the above statement, alleging that he had instead used an Afrikaans idiom: “die bobbejaan die bult gaan haal – n moesilkheid tegemoet loop; joe vreeslik kwel oor lest wat nog glad nie eens gebeur het nie” which translated to “do not look for trouble when it is not there”. The Applicant alleged that his fellow employees had misunderstood his remark.
The Arbitrator had found the dismissal to be substantially unfair, however the Applicant challenged the Arbitrator’s decision on the basis that he was awarded only one month’s compensation as opposed to the remedy of reinstatement. The Applicant alleged that the Arbitrator’s award was not one a reasonable decision-maker would have made.
|The Arbitrator had found the dismissal to be substantially unfair, in terms of sections 188 (1)(a)(i) of the Labour Relations Act (“LRA”), due to a lack of material evidence of overt racism and degrading remarks. The Arbitrator did however remark that the use of the Afrikaans idiom, was highly inappropriate and poor conduct from a trained supervisor.
The Arbitrator, in explaining her reasoning for the award of one month’s compensation, stated that there was sufficient material evidence to prove that the Applicant had not altered his punative and dehumanising behaviour towards staff despite a final written warning as well as training which he had completed. Furthermore, they took the Applicants length of his employment together with the fact that it was his first charge of racism when awarding the one month’s compensation. I It was not reasonably practicable in the circumstances for the Applicant to be re-instated by the Company as per section 193(2)(c) of the LRA.
The Arbitrator, found that reinstatement would not be an appropriate remedy, as the Applicant’s subordinates lodged grievances which led to an Employee Assistance Programme being conducted in order to restore the relations between the Applicant and his subordinates. In 2015, the Applicant further received training based on people and stress management.
The Court held that, in reviewing the evidence that was before the Arbitrator, that reinstatement of the Applicant to his previous position as a Technical Supervisor was not reasonably practicable and was therefore not susceptible to review. The court then had to consider whether the compensation award should remain unchanged.
The Court stated that the impact of the Applicant’s conduct on the employer, in light of the employer’s obligations to uphold the prescripts of employment law and the Constitution, had to be considered.
The court found that the award of one month’s compensation could not be considered to be a judicial exercise of discretion and awarded six month’s compensation as an appropriate remedy in the circumstances of the case.
|The case provides significant value on South African law position regarding racist and degrading remarks when used in the workplace, unfair dismissal and the appropriate remedies applied in such instances.|
Written by Sean Buskin and supervised by Omphile Boikanyo