| Joseph Ndzimande and two others (the “Applicants”) were dismissed from the employ of Xstrata (the “Third Respondent”) on the grounds that they brought the Third Respondent into disrepute after allegedly making false and defamatory statements in an interview that aired on 3 (three) SABC radio stations during a march embarked upon by employees of the Third Respondent. |
The Applicants, aggrieved with their dismissal, referred the dispute to the Commission for Conciliation Mediation and Arbitration (“CCMA”). The Commissioner (the “First Respondent”) was appointed to arbitrate the dispute when attempts at conciliation failed.
The First Respondent found that the dismissal of the Applicants was for a fair reason on the basis that the Third respondent had a standing rule pertaining to communications, which the Applicants ought to have been aware. Further, the First Respondent made a punitive costs order against the Applicants.
The Applicants took the First Respondent’s arbitration award on review to the Labour Court of South Africa, Johannesburg (the “Court”), alleging that the First Respondent committed several reviewable gross irregularities and exceeded his authority in that he did not deal with the evidence before him and in a balanced manner, contrary to the standards of impartiality expected from commissioners.
The Court held that it has been repeatedly stated that in review proceedings, arbitration awards are not to be easily interfered with unless the decision arrived at by the commissioner was “entirely disconnected with the evidence or is unsupported by any evidence and/or involved speculation on the part of the commissioner.”
Furthermore, the Court held that it is trite that when considering the fairness of the dismissal for misconduct, Commissioners are enjoined to have regard to section 188(2) of the Labour Relations Act No. 66 of 1995 (the “LRA”). In this regard, Commissioners are further enjoined to have regard to the provisions of Item 7 of Schedule 8 as contained in the Code of Good Practice: Dismissal, and the CCMA guidelines.
The Court acknowledged that the statements were “patently false, malicious and damaging to Xstrata’s reputation” and that the Applicants had not presented anything to the Commissioner to demonstrate that their statements were true. There was thus “no cause for them to make the false allegations” against the Third Respondent. In this regard, the Court emphasised how the nature of our labour relations is adversarial and that a primary objective of the LRA is to “create rules of engagement by promoting and facilitating collective bargaining at the workplace.”
The Court found that “there is nothing wrong when employees raise legitimate grievances and threaten to exercise their constitutional right to strike. There is, however, something wrong when in the course of raising those grievances employees make false and defamatory statements which may have serious repercussions for the employer. This is particularly more so where those employees had been warned to desist from such conduct.” In this regard, the Court advised that an employee’s freedom of expression is not unfettered.
Finally, having regard to the punitive costs order against the Applicants, the Court held that a mere allegation that a Commissioner was “inconsiderate” when awarding costs is not sustainable on its own to have the costs order reversed. Accordingly, the Court dismissed the Applicants application to review and set aside the arbitration award issued by the First Respondent.
An employee’s freedom of expression is not unfettered and making defamatory statements about your employer can lead to dismissal.
Arbitration awards are not easily interfered with by our courts unless the decision arrived at by the Commissioner is entirely disconnected with the evidence, is unsupported by any evidence, or involves speculation on the part of the Commissioner.
Written by Kerry Theunissen and Megan Brook