Nehawu obo Lerumo v PM Venter NO (C183/12) [2015] ZALCCT 66 (17 November 2015) per Steenkamp J.

The Labour Court reviewed and upheld proceedings relating to a pre-dismissal ruling (treated as an award) in terms of s188A of the LRA and the ruling that the employee’s services be terminated and the recommendation that the Department pursue criminal charges against him and that his conduct be reported to the General Bar Council of South Africa and the Association of Advocates for the Northern Cape. 

Excerpts

[17]     The arbitrator noted the Department’s argument that the trust relationship had broken down irretrievably.  The employee’s conduct brought the name of the Department into disrepute.  He noted that racial harmony in the workplace must be of paramount importance to employer and employees alike.  Just as racist behaviour needs to be rooted out, allowing employees to willingly accuse fellow employees of being racist must be addressed if those allegations are baseless and made without reasonable cause.  The arbitrator referred to SACWU v NCP Chlorchem (Pty) Ltd [2007] 7 BLLR 6633; (2007) 28 ILJ 1308 (LC) where the Labour Court held that a black employee who, without justification, accused a white colleague of being racist was found to have been no less guilty of racism than a person using a racist expression.  He also took into account that the employee did not show any remorse despite the evidence against him.

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[26]    There is nothing unreasonable about the arbitrator’s award.  He carefully considered the evidence before him. He reasonably considered the evidence of Mr Mase, albeit on affidavit. He gave the employee and his representative the opportunity to cross-examine Mase and the Department’s other witnesses. There was a fair trial of the issues.  He understood the enquiry before him.  He reasonably concluded that the employee had committed gross misconduct of a dishonest nature.  He took into account the relevant mitigating and aggravating circumstances before deciding on sanction. His conclusion was entirely reasonable.  The award is not open to review.