Makuleni v Standard Bank of South Africa Ltd and Others (JA125/2021) [2023] ZALAC 4 (8 February 2023).

The test for reviewing and setting aside an award of the CCMA is whether the decision reached by the commissioner is one that no reasonable person could have reached. This case is an example of the test being misapplied, and the Labour Court being misled into treating the case for a review as if it were an appeal. It further emphasizes the importance of proper record-keeping pertaining to workplace grievances, the burden of proof that lies with the employer, and giving due consideration to mitigating factors in support of a sanction less severe than the termination of employment.

Background 

Mrs Zimbani Makuleni, the appellant, was employed by Standard Bank, the respondent, as a branch manager. She was suspended on 28 August 2017 and dismissed on 12 January 2018 for misconduct. A commissioner of the CCMA issued an award on 12 October 2018 that she had been unfairly dismissed and ordered her reinstatement with full retrospectivity.

In a review of that decision, the Labour Court on 22 September 2021 set aside the award and declared that she had been fairly dismissed. This appeal lies against that order of the Labour Court.

The allegations of misconduct upon which a disciplinary enquiry found the appellant guilty, resulting in her dismissal, were as follows:

1. It is alleged that you have conducted yourself in a manner that is in breach of your contract of employment, your duty of good faith towards Standard Bank and your subordinates, and have created an environment that is hostile at Centurion Branch, in that:

1.1 You communicate with your subordinates in a manner that is disrespectful, offensive and childish.

1.2 You shout at your subordinates using inappropriate words (vulgar language) in front of their colleagues and the customers of the bank.

1.3 You fail to motivate your team and to value the ideas raised by certain of your subordinates. This has resulted with [sic] our subordinates feeling uncomfortable and worthless.

Evaluation 

Some observations about this formulation are appropriate. Plainly, it is composed of generalised conclusions and bereft of a single concrete allegation of fact. A request for further particulars was de facto refused in an answer which simply said that the 'offences' occurred since August 2015, i.e., over a two-year period. Such notice to the appellant of discernible facts became available only in statements made by the several witnesses, included in a trial bundle, and upon which they were each led in evidence. The statements variably alluded to some concrete factual allegations and, mostly, to generalised grievances. All the incidents alleged or grievances described therein were in the context of the appellant's role as a manager giving directions or correcting or rebuking staff for performance on the job.

The multitude of incidents mentioned by the several witnesses were supposed to have occurred during a period of up to two years prior to her suspension and many, but not all, were only vaguely located in time. The tenor of the appellant's defence was threefold: (1) to deny certain alleged incidents occurred at all; (2) to admit certain other incidents, but to offer a rebuttal of the interpretation placed on them by the witnesses; and (3) to respond that she had no recollection of an alleged incident, but to deny that the spin put on it by the witnesses was appropriate.

The two critical issues for decision by the commissioner were the credibility and the reliability of the various witnesses. He was conscious that an onus rested on the respondent to prove its case, an important dimension of the overall controversy. Ultimately, the commissioner concluded that the version of the appellant was preferable to that of her nine accusers, because it was, in his assessment, more probable. In addition, the commissioner was critical of the respondent's attitude towards sanction, even on the premise of the misconduct having been proven, because the personal circumstances of the appellant were not, in his view, properly weighed. This included her 23 years of exemplary service.

Two misdirections by the Labour Court are glaring. The first misdirection is the notion that it could accept that the appellant's subordinate staff, who were witnesses against her, had no motive to lie. This is plainly wrong on two grounds. The first ground is that the absence of an apparent motive to lie is not a helpful tool with which to determine either credibility or reliability. The once too frequent observation, long ago, by courts that a policeman had no motive to lie has been discredited for generations; it cannot be allowed to leak back into our forensic toolbox in diluted form. The second is that the Labour Court held, on the facts, that there was no evidence of a motive to lie or to distort what had truly occurred.

In fact, the facts demonstrate overwhelmingly that the appellant was an unpopular boss. Even by her own reckoning she was exacting, demanding, inclined to micro-manage and be authoritarian. The staff who had been corrected, rebuked and criticised for minor improprieties were glad to see the back of her. It is common cause that the Centurion branch ranked third in the country for excellent performance. That is a result that was welcomed by the management and not achieved without a high level of performance being sustained, ostensibly by, inter alia, exacting and close management. Indeed, the uncontradicted evidence of the appellant is that she was appointed to clean up the branch after the branch had been neglected for several months, and ill-discipline had become the norm. A strict regime had to be followed as a matter of course.

The second misdirection was that, because there was no proof of a conspiracy among the witnesses, the correspondence of their several tales constituted a type of self-supporting corroboration. This criticism overlooked where the onus lay. It is another example of fallacious forensic analysis – a variation of where there is smoke there must be fire. Although it is a valid consideration that where similar fact evidence exists it must be considered and, where appropriate, given weight, it cannot of itself be taken as dispositive of the truth. The commissioner, as the trier of fact, was of the view that, on the probabilities, the onus resting on the respondent was not discharged, and reasoned that the similarities in the tales of grievance were explained by the dislike of the staff for their strict and exacting manager. The fact that a rival view can exist does not mean the commissioner's view was unreasonable.

A third questionable criticism of the award, by the Labour Court, is the notion that the commissioner examined the evidence piecemeal and failed to weigh it holistically. The award traversed the high points of the evidence in a cursory vein, but nevertheless, the commissioner articulated his conclusion as being dictated by his assessment of the probabilities. The contention is advanced that the commissioner focused on technicalities and adopted a piecemeal approach. The Review Court's traverse of the scope of the evidence differed little from that of the commissioner and reached the opposite conclusion. A fair reading of the award does not bear out the criticism that the commissioner did not evaluate the body of evidence appropriately. Self-evidently, the testimony of each witness was remarked upon, but the whole also enjoyed attention.

A fourth aspect is the question of why the witnesses did not complain at the time the incidents occurred. This notable omission was treated quite differently by the commissioner and by the Labour Court. The excuse given by the witnesses was that they were too scared to come forward, being intimidated by the appellant. The commissioner rejected that as unconvincing. In this regard, the commissioner took into account, inter alia, the example of the appellant calling Ncedi Sithebe 'stupid' because her team member committed a serious and embarrassing error about a client's overdraft where Sithebe did, indeed, complain to Steven Blom, the regional manager. Moreover, having complained to him and he stating he would take it up with the appellant, Sithebe asked him not to. The appellant thereafter also apologised for the jibe. Blom testified that when he followed up with Sithebe, she told him the issue had been resolved. In addition, in regard to another incident, Sithebe testified that when a co-employee, Yashna (who did not testify), wanted to complain about the appellant upsetting her by asking her to pay for a replacement nametag, Sithebe went to great lengths to stop her from doing so. Both these examples tend to contradict the notion that there was no space to lodge a grievance. Moreover, of considerable importance, the formal grievance process in a business of the size and sophistication of the respondent was at all times available to be used, but was not.

On the other hand, the Labour Court was heavily impressed by this excuse. No refutation of the commissioner's reasoning is offered in the judgment. This clash of perspectives is simply an example of two rival interpretations, but the preference of the Labour Court does not displace that of the commissioner, unless the award falls foul of the threshold of the review test. It is not apparent how, on these facts, a conclusion could be reached that the commissioner's award was unreasonable.

Fifth, it was argued in the appeal that the commissioner exhibited a bias by interfering in the presentation of the case. This is an unjustified perspective of the commissioner's conduct. Commissioners are expected to assist an unrepresented litigant. He did no more than that. The employer’s representative was singularly defensive of the witnesses he called and came close to being contemptuous towards the commissioner on occasion. The efforts by the commissioner to assist in the articulation of the appellant's case and to exact details from the witnesses deserved no criticism.

The main findings in the award: was there a demonstration of unreasonableness? 

Are the commissioner's credibility and probability findings egregious? The references by the commissioner to credibility and probability elide reliability under that rubric, a not uncommon feature of the judgments of the courts, no less than in awards. The critical issue is what the commissioner found acceptable evidence upon which he could safely rely. The high points are addressed below.

Did the appellant call Mojau Maleke a 'bum' in isiXhosa, supposedly a grave insult? The commissioner believed the appellant that this did not happen. The review court held she did say it. The episode itself is bizarre. Maleke had made no reference to this insult in his pre-hearing statement. He does not speak isiXhosa. He claimed that only later, but before the CCMA hearing, by chance, he was told what the word meant, many months after it was allegedly used. He then testified about it at the CCMA hearing. The appellant denies using it at all and questions how Maleke could not have learnt from the isiXhosa speakers on the staff of its meaning straight away. Certain obvious questions arise: Is the allegation a fabrication or is the evidence a sincere recollection of a word he thinks he accurately recalls from many months ago? Was the word explained to him by an isiXhosa-speaking person really the word he heard much earlier? Even assuming sincerity, the probabilities are fraught with the risk of error. Assuming sincerity, at best, why would the commissioner's rejection of the allegation in the face of a denial be unreasonable?

The 'stupid' remark made to Sithebe, alluded to earlier, was dredged up a year after it occurred when, at the time it occurred, it had been reported to the regional manager, Blom, and his intervention had been refused. Why would the commissioner's take on this episode that there was a trawl for dirt to blacken the appellant's name be inappropriate? Indeed, how could it be unreasonable, especially when Blom's unchallenged evidence was that Sithebe told him that the spat was resolved between them? Moreover, why would an inference of mala fides be inappropriate which, in turn, contaminates the reliability of other claims the appellant refutes?

No evidence was led about the respondent's managerial ethos. Other than the usual generalised motherhood-and-apple-pie expressions of good leadership and mentoring, the commissioner was presented with no useful standard to examine and consider whether the appellant's style of management was so incongruent with it that she was in breach of her contract of employment.

A curious and unfortunate omission in the evidence is information about what proportion of the staff at the branch held pejorative views about the appellant. Mr Phooko indicated in the course of the hearing that there were various staff members who refused to be part of the case. In her defence, the appellant called two senior managers. Admittedly, their day-to-day exposure to the staff must have been relatively limited. However, both expressed ignorance of any of the appellant's alleged patterns of bad behaviour. Thus, how overt could it have been?

The greater part of the evidence was that the staff were subjected to a barrage of rebukes about poor performance, said to be often made in the company of others, delivered rudely or shouted, which upset the witnesses. Included in this were allegations of jibes aimed at the person, criticism of the alleged breach of the dress code, not standing when serving a customer, late-coming and derision at what was said to be inadequate excuses, and many more. However, despite the fact that staff meetings were recorded, no tapes or transcripts were offered as objective corroboration of the rudeness alleged to have taken place at such times.

Offensive behaviour, allegedly in the presence of customers, supposedly an aggravating circumstance, was not corroborated by any customer taking the trouble to record the scene in the complaints book. An adverse inference was drawn by the commissioner from not adducing such objective corroboration as might have been available. Why would the decision of the commissioner to be unimpressed by such generalised evidence be unreasonable? Why would the acceptance of the appellant's denials, given the onus, be unreasonable? Moreover, when this evidence is considered together with the absence of grievances being lodged at the time of occurrence, why could the rejection of the version be criticised as unreasonable?

The unaddressed question 

An aspect of the case that warrants an elaborated obiter dictum is the question, nevertheless moot, of what would have been a proper sanction were the appellant to have been found to have conducted herself inappropriately in the manner in which she dealt with her staff. In the view of the judge, it is far from apparent that summary dismissal would have been appropriate. Two obvious considerations should have dominated the evaluation required. The first consideration is that an employee who has 23 years of unblemished service ought not to be discarded lightly. The appellant worked for the respondent from 1 February 1995. No serious weight was given to this elephant in the room.

The second consideration is a peculiar aspect of the case. The appellant was appointed to a branch that was in need of rehabilitation owing to it having been neglected and ill-discipline having set in. Under her leadership, the branch was recognised as the third best performing branch in the respondent's business. If her style of management was inconsistent with what the respondent wanted, the results certainly were what they wanted.

The appropriate response upon an incongruence in managerial style and respondent's ethos being revealed would have been to consider sending her for advanced management training. If one were to speculate that the appellant's interpersonal style was reformable, then the prospect of another post, where she was not over-seeing staff, ought to have been explored.

The degree of robustness which characterises the reality of CCMA arbitrations is exactly the rationale for subjecting them to a review and not an appeal. The courts must be cautious not to undermine the legislative intent. The review court's rationale for setting the award aside could not stand.

The following order was made:

1. The appeal against the order of the court a quo was upheld.
2. The award was confirmed.
3. The costs of the appellant in the Labour Court and in the Labour Appeal Court shall be borne by the respondent.
4. The appellant shall report for duty to resume her employment with the respondent upon receipt by her of a notice, in writing, of at least two calendar months.
5. The restoration of the appellant's entitlements in respect of the retrospective effects of the award shall be calculated and be paid or reinstated, as the case may be, in full, not later than 120 days calculated from the date that this judgment is handed down.

This article does not constitute legal advice. For an informed opinion and/or assistance with a labour-related matter, you are encouraged to arrange a formal consultation with the author.

Submitted by Labour Guide