MH v Rhodes University (20 March 2017) [2017] 7 BALR 785; (2017) ILJ 2403 (CCMA)

Headnote

MH, a senior Rhodes University lecturer in computer science, posted a photo of a colleague on Facebook after a student posted a message to the effect that students were not safe when a lecturer pepper-sprayed them for going to a lecture.  The CCMA arbiter set aside a written warning imposed on MH and ordered the university to pay her compensation equal to three months basic pay.  MH relied on LRA 186(2)(b) and claimed that Rhodes had perpetrated an unfair labour practice by “charging” her and then issuing her with a written warning.  In other words the “disciplinary action short of dismissal” was unfair.  Based on the evidence at the disciplinary inquiry and her appeal, MH had not done what she was alleged to have done, namely “incitement”.  Rhodes unfairly gave “overt offensive behaviour” as the reason for imposing disciplinary action.  But MH was not provided with a proper chance to response to that allegation.  So the conduct of Rhodes in purporting to discipline MH was unfair and had to be set aside and warranted  Rhodes having to pay her compensation ito LRA s193(4).

Comment

This matter again shows the danger of senior management adopting the wrong approach.  Clearly MH should not have posted a photo of her colleague on Facebook.  So Rhodes had a valid reason to  take disciplinary action against her.  But surely her conduct  did not destroy or seriously damage the trust relationship with Rhodes?  So instead of adopting a criminal type approach and “charging” her and subjecting her to a formal inquiry Rhodes should have provided her with a written notice setting out the averments (factual allegations) and allowed her to respond to them.  After considering the responses MH should have been allowed to provide any other relevant information before Rhodes took a decision on whether or not to issue any warning.  What is very disturbing is the use in the award by the arbiter of language that justice Van Nierkerk in the Avril Elizabeth case has stated to be entirely inappropriate.

Legislation

Labour Relations Act, 1995 (LRA)

186   Meaning of dismissal and unfair labour practice

(2)  “Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving—

(a)          . . . . .

(b)          . . . . . any other unfair disciplinary action short of dismissal in respect of an employee;

193   Remedies for unfair dismissal and unfair labour practice

(4)  An arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation.

194   Limits on compensation

(4)  The compensation awarded to an employee in respect of an unfair labour practice must be just and equitable in all the circumstances, but not more than the equivalent of 12 months remuneration.

Selected quotations from arbitral award

Analysis of evidence and argument

[27]        In terms of section 186(2)(b) of the Act, unfair labour practice means any unfair act or omission that arise between an employer and an employee involving the unfair suspension of an employee or any other disciplinary action short of dismissal in respect of an employee.

[28]        It is common cause that the applicant was issued with a final written warning on 10 November 2016 and that final written warning was reduced after appeal to written warning issued to the applicant on 5 December 2016.

[29]        It is also common cause that the written warning was for the applicant’s alleged overt offensive behaviour.

[30]        The applicant was charged as follows (as per paragraph 15 above):

“Incitement-in particular, it is alleged that on or about Thursday, 29 September 2016, you posted statements on social media (Facebook) calculated to incite, harm and violence will promote or propagate hatred against another staff member of the University, Professor David Roux. Your alleged conduct is unlawful.”

[31]        The applicant was found not guilty on the allegation of incitement and instead, was found guilty of overt offensive behaviour.

[32]        The chairperson of the hearing never afforded the applicant any opportunity to respond to the new allegation of overt offensive behaviour. It was obvious that the chairperson simply made a competent verdict, something that he could not do.

[33]        I must emphasise that I concur with the verdict that the applicant was not guilty of incitement. The alleged victim of the transgression, Professor Roux, made it clear that the applicant was not guilty and should not have been charged for incitement.

[34]        During both the disciplinary hearing and appeal process, the applicant’s mitigating factors were not considered before the sanction was imposed.

[35]        Based on the balance of probabilities on evidence presented, the written warning issued to the applicant on 5 December 2016 was issued unfairly, both procedurally and substantively. Therefore, the respondent subjected the applicant to unfair labour practice. The written warning must be removed, although it is now academic as the applicant has left the respondent.

[36]        The applicant sought that I award her compensation if I find that she was issued with a written warning unfairly.  The respondent argued that I should not award the applicant the relief she seeks. The respondent also argued that the applicant did not suffer any loss and as such was not entitled to compensation.

[37]        According to section 193(4) of the Act:

“an arbitrator appointed in term of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation”.

[38]        Furthermore, section 194(4) states that “The compensation awarded to an employee in respect of an unfair labour practice must be just and equitable in all the circumstances, but not more than the equivalent of 12 months remuneration”.

[39]        In deciding the compensation for the applicant, certain factors were taken into consideration. The written warning issued to the applicant was substantively and procedurally unfair.

[40]        I have also taken into consideration the applicant’s employability chances were negatively affected by the warning after her resignation. I must find a way to soothe the pain and suffering of the applicant as a result of the warning.

[41]        Therefore, I believe that compensation equivalent to three months of the applicant’s basic monthly salary under the circumstances is just and equitable.

[42]        With regards to costs, I do not believe that the respondent’s case was frivolous and vexatious in any way. The conduct of the applicant was not in line with a conduct that would have been expected from a lecture. More especially taking into consideration the political climate at the time within the tertiary institutions arena. Students at the time were involved in extensive protest against fees. Most probably, if the issue of offensive behaviour was properly pursued by the respondent, the applicant could have been found guilty, in a fair manner. Therefore, I have no valid reasons to award costs against the respondent.