AWARD

1. The arbitration hearing in this matter took place on 11, 14,15, 16 and 18 August 2000 at the arbitrator’s offices in Johannesburg. It is an expedited and urgent arbitration, as will appear more fully below. At the commencement of the arbitration, both parties informed me that the proceedings had to be concluded and an award made before Sunday, 20 August 2000, as the grievant will stand for election at the union’s congress which begins on 20 August 2000, should he be reinstated. The proceedings were concluded at about 18h30 on 18 August 2000 and I have had to prepare this award and hand it down before Sunday 20 August 2000, as already indicated. Consequently, it has not been possible to prepare as thorough an award as I would have liked to, particularly given the novel and important issues that require determination. Nonetheless, I have done my best to prepare a reasoned award within the confines of the time limits imposed upon me by the parties.
2. In terms of the arbitration agreement between the parties, my terms of reference are set out in clause 2 thereof as follows:

"2.2 the Arbitrator’s terms of reference shall be to determine whether the dismissal of the Applicant by the respondent in June 2000 was unfair and if so, whether in all the circumstances the applicant is entitled to any relief;

2.3 the arbitrator shall exercise the same jurisdiction and have the same powers as a Judge of the Labour Court and may make any award he deems reasonable, including but not limited to an award of reinstatement and/or compensation, or dismissal of applicant’s claim."

3. The union was represented by union officials and the employee was also represented by a union official. The arbitration agreement specifically excludes legal representation.
4. The disciplinary charges against the employee are set out in full in a charge sheet annexed to a letter dated 17 May 2000 and are set out hereunder as they appear from the charge sheet:

1. It is alleged that cde Dinga Sikwebu published an internal document headed "The Volkswagen Debacle- the need for a postmortem" during or around the 10^th February 2000 and thereafter circulated the said document to various other persons, including fellow officials and or members of the union.
2. The contents of the said document contains information and/or statements which suggests that the union is guilty of an unfair conduct, alternatively and acted (sic) in an improper manner as a result of which the good name, reputation and image of the union could be prejudiced thereby.
3. The union is charging/alleging that the following acts of misconduct were committed by cde Dinga Sikwebu: -

Count 1 Cde Dinga failed to adhere to the required standard relating to the way in which he is expected to carry out his duties thereby prejudicing alternatively, potentially prejudicing the policies and/or interest of the union. (sic)

Count 2 Cde Dinga acted in a manner, which is detrimental to the administration, discipline and effectiveness of the union.

Count 3 Cde Dinga acted in a manner unbecoming of a person in his position.

 

Count 4 Cde Dinga acted in a manner displaying contempt towards the union and or its leadership and office bearers.

Count 5 Cde Dinga acted in a manner which undermined the interest (sic) of the union and its leadership."

 

4. The material facts which gave rise to the charges against the grievant and his subsequent dismissal are largely common cause and are set out immediately hereunder. These common cause facts are based on admissions made by the parties when the issues were narrowed, documents whose contents were not placed in dispute by either party during the arbitration hearing and concessions made by the witnesses:

1. The grievant was employed by the union as the National Education Co-ordinator, based at its head office in Johannesburg.
2. The grievant wrote an article entitled: "The Volkswagen Debacle-the need for a postmortem". The document is marked "Internal Document" at the top of the first page and is not on a union letterhead. I do not reproduce the article herein, in view of its length, but I annex it to this award as Annexure "A" and forms part of the award.
3. The article raises a series of questions about the strike which took place in January 2000 by union members and other employees employed by Volkswagen at Uitenhage, the issues which led to the strike and the union’s responses to and handling of the strike.
4. The grievant gave copies of the article to Mthuthuzeli Tom, the union’s President, Vincent Mabuyakhulu, its Vice President and Omar Gire, its National Treasurer. The three are collectively referred to as the National Office Bearers ("NOBS), although they do not constitute the full compliment of the NOBS, as these would normally include the union’s General Secretary and Deputy General Secretary. The grievant gave them the article on 9 February 2000 and said to them that it contained his views on the Volkswagen strike.
5. The grievant circulated the article to certain specified union officials and office bearers via e-mail on 10 February 2000. A list of the intended recipients includes three administrators and the Regional Secretary of the union’s Eastern Cape region.
6. On 16 February 2000, the Eastern Cape’s Regional Secretary addressed a letter to the union’s Head Office Secretariat, responding to the content of the article written by the grievant. The letter, inter alia, calls for the union’s National Executive Committee, ("NEC"), which was due to meet on 18 and 19 February 2000, to debate grievant’s "conduct" and take appropriate steps in terms of its constitution.
7. The NEC meeting of 18-19 February 2000 debated the issue and resolved that the NOBS should investigate the matter and take appropriate disciplinary action if required.
8. Sometime in February 2000, the exact date is not available, Mabuyakhulu sent the grievant a letter containing some seven questions, which he stated to constitute the terms of reference of the investigation ordered by the NEC.
9. The grievant responded to the letter referred to in paragraph 5.8 above on 8 March 2000. The grievant heard nothing afterwards.
10. On 17 May 2000, the union charged the grievant with alleged misconduct as set out in paragraph 4 above.
11. A disciplinary hearing took place on 22 May 2000, presided over by Mr Peter Shiburu, a member of the union’s National Finance Committee. Mr Shiburu is also a member of the NEC and attended the NEC meeting of 18-19 February 2000.
12. In a written decision, the chairperson of the hearing found the grievant guilty of all the charges and dismissed him from the union’s employ with effect from 12 June 2000.
13. The grievant appealed against his dismissal by notice dated 26 June 2000. An appeal hearing never took place but the reasons therefore are in dispute.
14. Prior to the distribution of grievant’s article on 9 February 2000, and prior to his dismissal, Osborne Galeni, a union official employed as sector co-ordinator, wrote and distributed an article entitled: "Who will be next to be sent to Golgotta?" This article also deals with issues surrounding the Volkswagen strike, and contains harsh and strong words and opinions about the union’s handling of the strike. Osborne Galeni gave the union President a copy of the article and also gave copies to other union officials at its head office.
15. As at the conclusion of this arbitration, no disciplinary action has been taken against Galeni.
16. The same Osborne Galeni wrote and distributed an article entitled: "Let us not stoop so low". This article was distributed by e-mail on 9 February 2000, and its named recipients are exactly the same as those to whom grievant’s article was addressed. Galeni gave this article to Mthuthuzeli Tom before he distributed it. The article addresses alleged problems within the union regarding political debates and jockeying for positions. Galeni has not yet been disciplined for writing and circulating this document.

1. At the arbitration hearing, the union called two witnesses. The first was Mthuthuzeli Tom, ("Tom"), its President. The thrust of his evidence was that officials and members of the union may only raise issues for debate through the formal constitutional structures of the union such as the NOBS, NEC, Central Committee meetings and Regional Executive Committee and other formal constitutional structures of the union. Such issues as they may wish to raise and debate with other employees of the union or members must be screened by the NOBS, or in the case of someone at a regional office, by the Regional Office Bearers ("ROBS"). These office bearers have the right to reject the circulation of a document for debate within the union if in their opinion, the opinions expressed therein are in conflict with their interpretation of union policies. According to Tom, the distribution per se of a document or article without the prior approval of the NOBS or ROBS or other formal structures of the union constitutes misconduct and makes the author liable for disciplinary action. This is because such conduct is in breach of a provision in a union’s policy document called "Numsa Meetings/Structures/Policy. Clause 4.1 of this policy provides as follows:

"Communication between Head Office and the regions will be through the General Secretary and Regional Secretary’s offices. Correspondence will flow through the administration department in both offices."

2. Tom further testified that the contents of the grievant’s article made him angry and upset. This was because the article allegedly referred to him as a collaborator when all his efforts and those of other union office bearers and officials were aimed at resolving the strike and avoiding the dismissal of the striking employees and the threatened relocation of a Golf IV project by Volkswagen which had created 1000 jobs. In his opinion, the article divided the union, created hatred towards its leaders and did not offer any solutions to the problems which the union was experiencing at Volkswagen.
3. Further, according to Tom, the article had strengthened the arm of the union’s competitor in the region, who was using the same terminology as used by the grievant in his article to entice union members to resign from the union.
4. Tom also testified that the grievant had, in January 2000 and prior to writing and circulating the article, telephoned him and asked him about the suspension of the thirteen shop stewards. He testified that he had given the grievant the reasons for the suspensions and therefore found it mischievous for the grievant to raise the same question in his article. Further, the union’s regional and national leadership had not called for debate on the Volkswagen strike, the grievant had no political authority to initiate such a debate and could only act in respect of political issues when authorized to do so. The grievant had not been requested to write an article on the Volkswagen strike, writing the article did not fall within his job functions and by writing it he had violated the union’s policies. Further, the union’s national and regional leadership was not accountable to the grievant and he therefore, had no right to ask questions of such leadership and expect answers thereto.
5. In conclusion, Tom denied that the grievant had been dismissed to scuttle his chances of standing for election for the General Secretary position at the union’s national congress to be held from 20 August 2000. He testified that nominations for positions had not yet been received, both at the time of grievant’s dismissal and as at the date of arbitration. He also testified that the relationship between the grievant and its leadership was not good, and was characterized by anger, disappointment and demoralization.
6. Cross-examined by the grievant, Tom denied that union officials had asked for a briefing on the strike at Volkswagen, notwithstanding the fact that a union official called as a witness at the disciplinary hearing by the union had said such a call had been made. He also denied that there were tensions at the union’s head office that the grievant had played a positive role to reduce it, again in spite of evidence to that effect given by a union witness at the disciplinary hearing.
7. Tom also denied that the Volkswagen strike had generated public interest, stating that the only interest was from "external forces" intended on destroying the union. He also denied that he had said that the union would not defend the Volkswagen employees dismissed for striking, that the quotation in an article in the Business Day newspaper of 24 January 2000 to that effect was wrong, as were remarks attributed to Dumisa Ntuli, the union’s Information Officer, by Business Day on 25 January and the Sowetan newspaper on 26 January.
8. Taken through the questions raised in the grievant’s article in the light of his answers to questions posed, Tom initially agreed that some of the questions posed were, such as the one about who the crisis committee was, when objectively assessed in the light of the information available at the time the article was written, legitimate questions. However, after the lunch break on the same when the grievant continued with his cross-examination, he completely changed his tack and said all the questions raised in grievant’s article were illegitimate because they were contained in an illegitimate document.
9. Tom also said he was not aware of an interdict obtained by the union against the thirteen shop stewards at Volkswagen who had been suspended and that he had never been required to authorize the institution of proceedings to obtain one. Referred to a minute of a meeting at which Tom referred to vultures within the union and the need to get rid of them, the witness stated that he had indeed referred to vultures, that these were individuals who were making life unbearable for the union leaders, that they would be gotten rid of through union structures. He stated, however, that the grievant was not one of them.

10. Tom also testified that although the grievant had given him the article, he did not read it until days later when he got calls from people complaining about the contents. He said that when the grievant gave him the article, the grievant mentioned that it contained his personal views about the Volkswagen strike, but he did not read it then or shortly thereafter because he was too busy with some Germans regarding the strike dismissals themselves. None of the other NOBS to whom the article had been given raised the content thereof with him, prior to him receiving calls from these other people.
11. Tom also testified that after the grievant had circulated the article and the NEC had authorized an investigation, the NOBS entrusted the grievant with the responsibility for preparations for the union’s national congress to be held in August 2000, including the drafting of policies to be debated at the congress and developing resolutions to be table at the congress. He also conceded that the grievant had continued to interact with the NOBS after the circulation of the article, that the grievant had organized the national and regional workshops in preparation for the union’s congress, in the period after the NEC meeting of 18 and 19 February 2000. Further, that he had personally requested the grievant to represent the union at a government workshop regarding the armaments industry which fell outside grievant’s responsibility and that the grievant had performed all his functions diligently, reporting to the NOBS, until his dismissal.

12. The union’s second witness was Mr. Irvin Jim, ("Jim"), the union’s chairperson for the Eastern Cape region. In his evidence in chief, he dealt largely with the circumstances that led to the initial expulsion and subsequent suspension of thirteen shop stewards at Volkswagen, the efforts made by the union to resolve the problems there, the strike, efforts to resolve it and the subsequent dismissal of some 1300 workers, including a large number of union members. He explained that the thirteen shop stewards did not attend the union’s local shop stewards council meetings or COSATU’s shop stewards meeting, did not report back to all members but only to a clique and generally disregarded the procedures and policies of the union as enshrined in the union’s constitution.
13. Jim also testified that the Eastern Cape did not receive the grievant’s article from the grievant himself, although he conceded that at the disciplinary hearing, the grievant had demonstrated that he had indeed sent it to their region. He testified that at the time they received the article, it was not the time for debates or discussion on the Volkswagen strike. In his opinion, the article challenged the union’s leadership and was opportunistic, as was the grievant who had written it.
14. According to Jim, the article poses questions, the union’s Eastern Cape region was not accountable to the grievant, the article was critical of and challenged the union’s Eastern Cape and national leadership. Further, he said that while union and staff members have the right to express political views, it would be wrong for one of them to circulate an article stating a view which is against a union position.
15. Under cross-examination, Jim was asked what damage the grievant’s article had caused to the union. His response was that the article was for public consumption and had undermined the union’s position, that the article had added fuel to those attacking the union but that the main issue was not whether the article had caused damage, but the principle that the grievant had chosen a route that cast doubt on the leadership of the union. Asked whether there were resignation or threatened resignations by union members due to the article, he answered in the negative, stating that the point was that the article had fallen into the hands of opportunists who had an agenda of their own. He also conceded that the strike was a national issue and there was a need to assess it, but through the structures of the union. Asked whether the Eastern cape region had issued a briefing to other regions about the strike, Jim said that when there was an inquiry from a region, they supplied information but he did not see a report going out to all the regions. He conceded that the Volkswagen strike was open for debate within the union, but said only for defending the union and not by circulating a document as the grievant had done.
16. Jim also stated that he is not aware of anybody from the union having been dismissed before for writing an article. He also said that the provision relating to communication and correspondence between the union’s regions and head office referred to above is the one that prescribes that issues for discussion and debate within the union can only be raised through the union’s formal structures. When challenged to point where in the clause such a provision appears, he said that it did not appear anywhere but was a culture within the union. He also said that members and officials of the union could only raise debates through the NOBS, and that this has been established by culture, custom and practice within the union.
17. The union closed its case after the conclusion of Jim’s evidence.
18. The grievant testified that he wrote his article at a time when Volkswagen had already dismissed 1300 workers, including members of the union. He was on holiday in Cape Town when the strike started and learnt about it from the media. He telephoned Tom to find out what was happening, in the light of media reports that the strike was over an internal dispute in the union. He suggested to Tom the need for an internal briefing within the union. He went back to work on 1 February 2000, where he found that there was tension amongst staff members arising out of the Volkswagen strike, in particular, between Mr Dumisa Ntuli, the Information Officer, and Osborne Galeni, one of the sector co-ordinators. He also found out that staff members at Head Office had different versions of the events that were unfolding at Volkswagen. Galeni had already distributed an article on the matter (referred to in paragraph 5 above). He was informed by colleagues that they had approached Tom for an internal union briefing on the matter but none had been forthcoming as at the time. The union’s General Secretary at the time, Mr Peter Dantjie, was not in the office, was on leave but had also tendered his resignation. There were enquiries from the union’s fraternal international organizations but they could not be given an appropriate response in the light of lack of clarity on what was happening. Sector co-ordinators were also being asked by employers and union members as to what was happening at Volkswagen and were offering different explanations.
19. The grievant testified that in the light of all of these factors as sketched out above, he decided to write the article that led to his dismissal. In writing the article, his primary objective was to look at how the union as a collective could execute the immediate task of securing the reinstatement of the 1300 dismissed workers. The grievant referred to the opening and closing paragraphs of the article, which read as follows:

"While the most immediate task facing the union in relation to the Volkswagen strike is to win back the jobs of the dismissed workers, a post-mortem of what happened must begin…

Clear answers to these questions will allow us to draw the necessary lessons from the dispute. They will also help us to deal with what is now pressing-the immediate reinstatement of the dismissed workers."

20. The grievant testified that in his view, in order to achieve the objective as set out in the article, there was a need to establish the facts of what had happened and to interrogate the strategies which had been applied to deal with the issue. He testified that his primary objective has been ignored by the union, which concentrated on the request for information in the form of questions posed in the article.
21. The grievant testified that he was approached by Mabuyakhulu after the NEC meeting of 18 and 19 February 2000, and told of the investigation ordered by the NEC into his conduct regarding the article and its distribution. At his request, he was furnished with the terms of reference in the form of seven questions during February, and he responded thereto on 8 March 2000, setting more or less what is captured in his evidence herein. He heard nothing from the union until some two and a half months later, when he was given the charge sheet on 17 May 2000, for a hearing which was to take place on 24 May 2000. He was surprised by this, both because he had received no feedback and such a long time had lapsed since his response.
22. The grievant testified that after the distribution of the article, the NEC of 18 and 19 February and the institution of the investigation, he continued to work with the NOBS, including Tom, and did not notice any tension. He did briefly meet with the NOBS and expressed his dissatisfaction with the investigation but all agreed to await its outcome. He was, in this period, entrusted by the NOBS with the responsibility of taking charge of preparations for the union’s national congress, which included developing themes for policy and resolutions to be tabled at the forthcoming congress. As part of these preparations, he organized the national and regional workshops for the congress, where the material he had prepared was used to formulate policies and resolutions to be tabled at congress. During all this time, he interacted with the union’s regional leaders, including those from the Eastern Cape. He was also requested to take charge of the membership department but declined due to the heavy workload that he was already carrying.
23. The grievant further testified that he had previously and on many occasions written articles in his personal capacity for publication in the union’s newsletter, the Labour Bulletin and newspapers. On all these occasions, he would give the secretariat a copy, out of what he calls "political courtesy", so that they should not learn of these from the media after publication. He is adamant that he never asked for permission nor was he ever told that he could not write and publish such articles. Some of these articles were critical of the union’s position. He was never disciplined for publishing these articles. He disputed the union’s interpretation of clause 4.1 of the policy on meetings and structures. He explained that the reason for the policy, including 4.1, was that after the formation of the union as a result of the merger of some seven unions in 1987, there were effectively three head offices, with three national secretaries, based at three different cities. This resulted in unco-ordinated administration and different approaches, which led to the adoption of the policy to structure formal communication within the union. This had nothing to do with the expression of views on topical matters or the circulation of documents. The only policy with regard to the expression of views was in respect of an editorial code for articles to be published in the union’s newsletter and journal.
24. Finally, the grievant testified that he believed that the NEC had pre-judged him, as appears from the minutes of its meeting of 18 and 19 February, where it is stated that he had shown disrespect for the work of the union and had undermined its political authority, that the chairperson of the disciplinary hearing was a member of the NEC and had also prejudged him in that capacity and that the union was applying discipline inconsistently as it has not disciplined Galeni, who had also written and distributed an article on the Volkswagen strike and which was also highly critical of the union and how it had handled the strike.
25. Under cross-examination, the grievant stated that although he gathered from reading the letter from the Eastern Cape region responding to his article that there was anger over the article, he did not apologise because he did not believe that he had done something wrong. He stated that if his article was critical of the union’s Eastern Cape leadership, this in itself did not mean he should apologise. He also conceded that having heard from Jim at the arbitration the precise details about the reason for the suspension of the thirteen shop stewards at Volkswagen, he accepted that the union had no option but to suspend them.
26. The grievant further said he believed that his article was good for the union as its stated intention was to address the issue of the reinstatement of the dismissed workers. Asked who was guilty of political witch-hunting as claimed in a quotation attributed to him by the Mail and Guardian newspaper of 28 July 2000, the grievant said that it was people who had initiated disciplinary action against him but had turned a blind eye to other documents being circulated in the union at the time. The grievant stated that he was not questioning the right of the NEC and NOBS to take disciplinary action against him but was demanding that he must be afforded a fair hearing.
27. It was put to the grievant that his article had divided the union’s regions and membership, had damaged its image and undermined discipline and the effectiveness of the union. He denied this assertions, and stated that what had divided the regions was his dismissal, and not the article. It was also put to him that his article had strengthened organizations opposed to the union in the Eastern Cape. The grievant’s response was that he had not circulated the article to anybody outside the union, the article was marked for internal discussion and he could not be held responsible for whoever leaked the document to the union’s adversaries. With reference to an article issued by the Workers International Vanguard League, which it was alleged, contained views similar to those expressed by the grievant in his article, the grievant denied that there was a link between the two articles or that he was somehow responsible for the circulation of the other article. He also stated that it was because of his alleged link with the Workers International Vanguard League that he had been disciplined and dismissed, and that this amounted to victimization, as the League was not acceptable within the union, it being perceived as a fringe extreme leftist party. In this regard, he stated that in the letter from the Eastern Cape, at the NEC, in the terms of reference, at his disciplinary hearing and the arbitration, (through the evidence of Tom and Jim to that effect) there was a consistent attempt to find and establish commonality between his views and those of the League, which was being used to justify the view that his article was not acceptable and he deserved to be disciplined for writing and distributing it.
28. Asked whether anybody had the right to agitate against and flout the union’s policies, the grievant replied not, but said there was a right to influence union structures to adopt different policies.
29. When asked why he did not seek the information he required directly from the Eastern Cape region, the grievant pointed out that both Tom and Jim had said that the union leadership was not accountable to the grievant and therefore, had no obligation to respond to queries from him. He stated that the questions he asked in his article were not conclusions, but sought answers from which conclusions could be drawn. He also stated that even given the information that he had now obtained, he was still of the view that the union could have handled some of the issues differently.
30. Asked how he thought he could work with the NOBS after all that has happened, the grievant replied that disagreements should not be equated with divisions and that he had in any event worked with them even after the article was distributed.
31. The grievant then called Mr Omar Gire, the union’s national treasurer, as his first witness. Gire had only attended the arbitration after he was subpoenaed to attend. Prior to giving evidence, he requested me to record that he had only come to the arbitration in response to a subpoena, that it is his understanding that there is an NEC decision requiring him to support its decisions, that both the grievant and Tom were his friends and that for these reasons, he did not wish to give evidence. I explained to him that he was only required to give evidence about facts within his personal knowledge, that the decision to dismiss the grievant was made by Mr Shiburi and not the NEC and he could therefore, give evidence without breaching the NEC decision. I also informed him that he could decline to answer any specific question that he felt would compromise him. He then, subject to what I have recorded, agreed to give evidence.
32. Gire testified that he had known the grievant since 1995, had a good relationship with him and that while the grievant worked as regional education co-ordinator, he had never been disciplined. He also testified that he had learnt of the strike from the news media, that he went to Uitenhage with other NOBS for a meeting to discuss the strike and that any strike against the union was not good for the union.
33. Gire further testified that the grievant had given him the article together with the other NOBS on 9 February, that he read it some time later in the plane, probably on 10 February when he went back to Cape Town. He remembers that he later commented to the grievant that he found some of the questions raised in the article interesting but did not really read the article in detail to refer to all the questions raised therein.

34. Under cross-examination, he stated that he could not really comment on the grievant’s relationship with the NOBS after the article was distributed as unlike Tom and Mabuyakhulu, he is not based at Head Office and only goes there for meetings.
35. Osborne Galeni was called as the second and last witness for the grievant. He testified that he is the sector co-ordinator for Energy, Basic Metal, Heavy and Light Engineering and Defense. He has been with the union since 1987 and with the union’s predecessor since 1985. He has been based at the union’s head office since 1994.
36. Galeni testified that he wad written his article, "Who will be next to be sent to Golgotta?" after the dismissal of the 1300 workers but before the grievant had distributed his. He gave Tom a copy of his paper and also gave copies to other staff members at head office who asked for a copy. Tom never said anything to him regarding the paper and its contents. He also wrote another article, "Let us not stoop so low". He once more gave Tom a copy thereof but he never heard from him again. He also distributed his article on 9 February 2000, with the assistance of a colleague, by e-mail to the same people to whom the grievant had sent his article. As at 18 August 2000 when he was giving evidence in the arbitration, nobody within the union had approached him to say that an investigation has been launched into his authorship and distribution of the articles or that any disciplinary action is going to be taken against him in respect thereof.
37. Under cross-examination, Galeni said that he had approached Tom and asked for information on the Volkswagen strike but Tom never reverted back to him. He also said that he did not sent his first article to the Eastern Cape because he was engaging people at head office where there was already tension between himself and Dumisa Ntuli. He further said that when he gave his second article to Tom he told the latter that he was going to circulate it and wanted debate on the issue raised therein. Asked whether he knew of the rule that communication should go through the General Secretary or Regional Secretary, he said he did but did not understand it to mean censorship by these individuals. He also corroborated grievant’s evidence with regard to the circumstances under which the provision relating to the flow of correspondence and communication through the General or Regional Secretaries was introduced.

Was the grievant fairly dismissed?

38. In finding the grievant guilty of charge 1, Shiburi concluded that the grievant had admitted that a document to be circulated at the union’s head office had to be approved by the General Secretary and that the grievant had failed "to display the quality of skills that is expected of any national education co-ordinator of any union." There simply is no basis for this conclusion in the evidence given by the grievant at the disciplinary hearing. The verbatim transcript of the disciplinary hearing contains no admission by the grievant that he required the approval of the union’s General Secretary prior to circulating a document. On the contrary, even then, as now, the grievant said that he would consider any comments, favourable or not, from the General Secretary but not his approval. The conclusion that the grievant had failed to display the skills of a national co-ordinator seems to be a thumb-suck because nobody ever questioned the grievant’s competency as a co-ordinator.
39. In this arbitration, it was common cause that the grievant was more than competent and his performance was not at issue. It was also common cause that he wrote the disputed article in his personal capacity, as appears from the covering letter accompanying the article, which states that it is a personal piece. Tom also stated in his evidence that writing an article of this nature was not part of the grievant’s job function.
40. The question is whether it is then competent to charge and find the grievant guilty of failure to adhere to the required standard relating to the performance of his duties in respect of an article written and distributed in his personal capacity. In my view, such a conclusion is untenable. The union, having maintained that it was not part of the grievant’s job to write the article, cannot then raise issues relating to adherence of standards in relation to his job as a basis for disciplining him.
41. In this arbitration, the union adopted a slightly different view, namely, that failure to adhere to standards refers to non-compliance with clause 4.1 of the union’s policy on structures and meetings referred to elsewhere in this award. The union’s argument that that clause means that an article such as the one written by the grievant must be approved by the NOBS first and be distributed through the General Secretary’s office does not make much sense. Clause 4.1 is part of a broader resolution whose stated objective is "the effective co-ordination and supervision of staff at all levels" of the union. As conceded by Tom, even correspondence and communication between sector co-ordinators and staff in the regions is not processed in terms of 4.1. The union also did not contest the grievant’s explanation of why 4.1 and the other provisions in the policy were introduced, namely, to merge the administration of a union born out of a merger of seven unions which had their own administration and communication structures. The clause is clearly aimed at formal correspondence and communication within the union to ensure efficiency. It simply does not discover articles such as those written by the grievant and Galeni.
42. In my view, clause 4.1 is of no application and cannot assist the union to prove the first charge. It is even worse to suggest, as the union does, that this clause also means that a staff member or union member must obtain permission from either NOBS or ROBS prior to writing and circulating an article. Tom rightly conceded that the clause contains no such provision.
43. There was debate between the grievant and the union’s witnesses, and in particular, Tom, around the question of whether or not clause 4.1, if given the interpretation contended for by the union, amounts to an unlawful interference with the grievant’s constitutionally guaranteed freedom of expression. In view of the conclusion that I have arrived at as to the meaning of this clause, I do not find it necessary to express an opinion on the matter.
44. It follows that the union has failed to prove that the grievant is guilty of misconduct in respect of charge 1.
45. Count 2 is predicated upon an argument by the union that there is a link between the grievant’s article and the one distributed by the League, as well as the formation of a rival union which was recruiting employees from among union members at Volkswagen. Shiburi found the grievant guilty on this charge but for reasons which are slightly different from those advanced by the union in this arbitration. Shiburi concluded that he could not understand why the grievant wanted information and at the same time, the article was an input towards the February NEC. He also concludes that he does not think that the grievant should have contributed to the solution of the problem in the manner he did, i.e. by writing and circulating the article.
46. In my view, both Shiburi’s conclusions and the union’s argument are entirely without merit. It is astonishing that Shiburi believes that seeking information and making a contribution towards resolving a problem are incompatible and mutually exclusive. As the grievant’s article suggests, the union’s immediate task was to resolve the impasse over the dismissal of the 1300 workers. However, for staff members such as himself, additional information and clarity was required to be able to meaningfully contribute to the debate towards a solution. Shiburi also does not say in what other manner should the grievant have sought to make his contribution.
47. As for the union’s submissions in the arbitration, there is simply no evidence to support the contentions being advanced. None of the union’s witnesses suggested that the grievant had circulated his article to anybody outside the union or that the grievant intended the article to reach people outside the union. Nor could the union produce any shred of evidence that the grievant had anything to do with the article that the League produced and distributed. No other evidence has been tendered to suggest in what way the article has been detrimental to the administration, discipline and effectiveness of the union.
48. I accordingly conclude that the grievant is not guilty on this count and should not have been found guilty by the union either.
49. In respect of Count 3, that of acting in a manner unbecoming of a person in his position, Shiburi found the grievant guilty because the grievant was "expected to as speedily as possible collect all the information and provide answers and also advice the structures of the union about the best way to resolve the problem, but cde. Dinga did not do that instead he asked questions."
50. In this arbitration, both Tom and Jim were at pains to emphasize that the grievant had no right to seek answers from the Eastern Cape region or the NOBS and that it was not part of his responsibility to advise the union leadership on how to deal with the Volkswagen strike and that they were not accountable to him. That being the position of the union, it is incomprehensible that Shiburi could find the grievant guilty on this charge.
51. Similarly, I conclude that the grievant is not guilty of misconduct in respect of this charge. A national education co-ordinator who raises questions and invites debate on a matter of such importance as the Volkswagen strike and the dismissal of 1300 union members can hardly be accused of acting in a manner unbecoming of a person in his position.
52. Regarding count 4, Tom and Jim testified that in raising questions about the suspensions of the thirteen Volkswagen shop stewards, the interdict against them, the remarks attributed to Tom that the union would not defend the union members who failed to heed the company’s ultimatum and return to work, the grievant was being contemptuous towards the union and its leaders. Shiburi, in dealing with this charge, simply stated that "this becomes evident in the manner in which Cde. Dinga crafted his questions that relates to the roles of the leadership and also the union." His conclusions, brief as they are, seem to be consistent with the views of Tom and Jim.
53. There is no doubt the questions raised by the grievant regarding the role of the union leadership, both in the Eastern Cape and nationally, during the strike are phrased in a manner that is critical of the union leadership, subject to what the answers are to the questions posed. The article is clear that such criticism becomes real only if the answers confirm preliminary views held by the grievant. For example, if it were true that the union had sought an interdict against its own members, the grievant is obviously critical of such a decision and raises questions about its implications. The same can be said of the statement attributed to Tom in Business Day about whether or not the union would defend its members were they to be dismissed for failing to heed the ultimatum.
54. Having said that, I think criticism cannot always be equated to contempt. I do not share the view that the questions posed and the criticism inherent in them, always depending on the answers, come anywhere near showing contempt for the union and its leaders. The nature of the issues is such that they required critical evaluation. The strike was an unusual one, the suspension of constitutionally elected shop stewards a matter deserving debate, the use of courts to resolve an internal union dispute a novel one within the union. The manner in which the questions were posed, and the potential criticism arising out of possible answers to the questions, indicate concern from the grievant than contempt. Indeed, during his cross-examination, Tom initially agreed that some of these questions were legitimate until after the lunch break on the second day of his cross-examination, when he did a complete somersault and labeled all questions illegitimate because they were in an illegitimate document. I cannot help but believe that a discussion between Tom and some other person during the lunch break led to his dramatic about turn.
55. I conclude that count 4 cannot be sustained and the grievant is not guilty of misconduct in respect thereof.
56. Count 5 is in substance, not different from charge 2, as both go towards the effect that the article had on the union and its leadership. It is also indirectly linked to the same issues raised in count 4. There is no evidence that the article and circulation undermined the interests of the union and its leaders. The article clearly raised issues whose resolution is in the best interests of the union. It emerged in evidence that the January strike by Volkswagen workers was not the first one. They had also struck against the union in July 1999 when the thirteen shop stewards were initially expelled from the union by a meeting of the Uitenhage shop stewards local council. There had also been a similar strike at Daimler-Chrysler (then Mercedes-Benz of SA) some years back. It seems to me that a union official who raises the kind of issues that the grievant raised for internal debate is doing so for the benefit of the union rather than to its detriment or to undermine it.
57. The union sought to argue that the grievant could only raise these issues through the union’s constitutional structures such as NOBS, ROBS, NEC or Central Committee meetings. I have not been provided with any evidence of such a policy or provision in the constitution. On the contrary, the grievant testified to the countless occasions on which he had written articles and had them published, including one where although the then General Secretary of the union, who has since passed way, disagreed with some of the views therein, he still went ahead with publication and the General Secretary said he would write a rejoinder.
58. I therefore conclude that the grievant is not guilty on this charge either.
59. It follows that the grievant was not guilty of any misconduct. I accordingly conclude that grievant’s dismissal was unfair in that there was no valid reason for his dismissal.
60. The grievant also raised a number of alleged procedural issues. These center around whether the NEC prejudged him and the fact that Shiburi, who was a member of the NEC, should have disclosed this fact and recused himself.
61. In the NEC minutes, it is stated that there are individuals, (and it is not in dispute that the grievant was one of them) who had shown disrespect for the work of the union. The NEC then resolved, inter alia, that an investigation must be conducted and disciplinary action taken if found appropriate, that individuals, including the grievant, do as they please and undermine the political authority of the union and that failure to obtain the blessings of the NOBS before circulating a document amounts to undermining the political authority of the union.
62. Decisions of the NEC are binding on the union and its members. It seems to me that having pronounced that the grievant and other unnamed individuals were disrespectful of the political leadership of the union and that failure to obtain the blessings of the NOBS prior to circulating a document undermined the union leadership, the grievant’s guilt was determined by the NEC. Shiburi, as a member of the NEC, was bound by such a decision. The only issue that really remained for determination was the appropriate penalty. My view in this regard is supported by the simply unjustifiable and at times incomprehensible findings made by Shiburi.

63. I need to mention that I also believe that, in addition to the reasons given above for finding that grievant’s dismissal was unfair, the union also applied discipline inconsistently. I refer to the uncontested evidence that Galeni wrote two, and not one, articles during the same period as the grievant and to date, has not been disciplined, let alone dismissed. I also believe that if one compares the strong and harsh language used by Galeni in his first article, it is incomprehensible how it could be said that the grievant’s article is unacceptable and yet do nothing about Galeni’s article.
64. In the result, I am of the view that grievant’s dismissal was also procedurally unfair.
65. The grievant seeks reinstatement. I cannot see any reason why he should not be reinstated. Tom testified that he cannot work with the grievant because of the contents of the article. The fact is Tom has worked with the grievant since the article was distributed on 10 February until grievant’s dismissal on 13 June 2000. As a member of the NOBS, he was party to a decision to entrust to the grievant the extremely important responsibility of taking charge of congress preparations, a responsibility normally performed by the General Secretary of the union. The grievant interacted with all the regions for four months after he wrote and distributed the article, including the Eastern Cape. Neither Mabuyakhulu nor Gire have said that they cannot work with the grievant. On the contrary, they worked with him until his dismissal. Mabuyakhulu assisted in presenting the union’s case during the arbitration and cross-examined the grievant as well. He did not once put it to the grievant that the relationship between the two had broken down. The evidence from Tom was that until his dismissal, the grievant carried out all his duties with due care and diligence. There is simply no evidence to suggest that the distribution of the article that the grievant wrote led to a breakdown in the relationship with the union leaders and staff members. Even if Tom believes he cannot work with the grievant, the fact is that as the union is the sum of its members and I do not believe that the views of only one person should be determinative of the issue.
66. In my view, the disciplinary action against him was completely unjustified and even more his dismissal. He was put through a needless enquiry, had to approach the courts and eventually this arbitration in circumstances where this should not have happened.
67. The grievant requested that I should order the union to pay his disbursements for the arbitration, given that he incurred expenses in securing the attendance of witnesses at the hearing. He also requested that I should order the union to pay his legal costs, arising from an urgent application that he brought in the Labour Court and which was settled by an agreement to refer grievant’s dispute to private arbitration.
68. My powers extend to making a costs order as I am given the same jurisdiction and powers as a judge of the Labour Court. I am of the view that the costs related to the Labour Court application fall outside my powers. Those should have been dealt with when that application was settled.

69. I accordingly make the following award:

1. The dismissal of the grievant is unfair as it was not effected for a valid reason nor in accordance with a fair procedure;
2. The union is ordered to reinstate the grievant into the position that he occupied at the time of his dismissal and on terms no less favourable than those that applied at the time of his dismissal;
3. Grievant’s reinstatement is retrospective to the date of his dismissal and he is to resume his duties on 19 August 2000;

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