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[2006] ZASCA 175
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Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation, Mediation and Arbitration and Others (598/05) [2006] ZASCA 175; [2007] 1 All SA 164 (SCA); 2007 (1) SA 576 (SCA); [2006] 11 BLLR 1021 (SCA); (2006) 27 ILJ 2076 (SCA) (26 September 2006)
Links to summary
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case no: 598/05
REPORTABLE
In the appeal between:
RUSTENBURG PLATINUM MINES LTD
(RUSTENBURG SECTION)
Appellant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION
First Respondent
T J MOROPA NO
Second Respondent
Z SIDUMO
Third Respondent
Before: Harms JA, Cameron JA, Cloete
JA, Lewis JA, Maya JA
Heard: Monday 11 September 2006
Judgment: Tuesday 26 September 2006
Labour Relations Act 66 of 1995
–
Commission for Conciliation, Mediation and Arbitration – powers
of arbitrators regarding dismissals – decision
on workplace
remedy lies primarily with employer – arbitrators must exercise
caution before interfering – Labour Appeal
Court – proper
test for review of CCMA arbitrators’ decisions restated
Neutral citation: Rustenburg Platinum
Mines Ltd v CCMA [2006] SCA 115 (RSA)
JUDGMENT
_______________________________________________________
CAMERON JA:
Introduction
In June 2000 the appellant (the
mine) dismissed the third respondent, Mr Zingisile Sidumo, from his
job as a grade II patrolman
in its protection services department.
Sidumo successfully challenged his dismissal under the compulsory
arbitration provisions
of the Labour Relations Act 66 of 1995 (the
LRA) administered by the first respondent, the Commission for
Conciliation, Mediation
and Arbitration (the CCMA). The second
respondent, Mr T Moropa, a CCMA commissioner, found the dismissal
procedurally fair, but
substantively unfair. He reinstated Sidumo
with three months’ compensation, subject to a written warning
valid for six
months. The Labour Court and the Labour Appeal Court
declined to intervene on review. With special leave granted by this
court,
the mine now appeals.
Internal disciplinary hearing and appeal
Sidumo started with the mine in December 1985. At the time of his
dismissal he had served for more than fourteen years without
disciplinary infraction. He was employed at the Waterval redressing
section, a high security facility that provided benefaction
services, separating high grade precious metals from lower grade
concentrate. His main duty was access control and to protect
the
mine’s precious metal product. Because of a high theft
problem, which was causing significant daily losses, the mine
instituted detailed search procedures for all persons leaving the
Waterval plant. This entailed an individual private search
of each
person in a cubicle, with close physical inspection, plus a metal
detector scan. The compulsory procedures were distributed
and made
known to all, including Sidumo, who in August 1999 signed an
acknowledgement that they had been read and explained to
him.
Losses continued. In response, the mine mounted video surveillance
of employee performance at various points, including that
of Sidumo
over three separate days while he was on duty in April 2000. This
revealed that, of 24 searches in the three-day period,
he conducted
only one properly in accordance with obligatory search procedures,
which required him ‘to search everyone
leaving the redressing
section according to the search procedure which is displayed’.
1
On eight persons he conducted no search at all. On fifteen the
search was ‘improper’ (ie, not in accordance with
the
works instruction). The video revealed that Sidumo allowed some
persons to sign the search register without conducting any
search at
all.
Sidumo was charged with ‘offences’ at an internal
disciplinary inquiry. A senior superintendent, Mr Page, found him
guilty of misconduct in the form of negligence and failure to follow
established search procedures. He found that Sidumo was
an
experienced patrolman who had been placed in a high risk area to
safeguard the company’s most valuable product at the
redressing section. The misconduct had ‘created potential
production losses / theft’ at the redressing section. In
mitigation, Page accepted that ‘nothing went out during your
shift, as far as you know’, and took into account that
Sidumo
had a clean disciplinary record and nearly 15 years’ service.
Despite this, he found that the misconduct went to
the heart of
Sidumo’s capacity as a protection services member, and that
‘the trustworthy position between [him]
and the company has
been broken, which made [a] future relationship intolerable’.
Sidumo appealed. The supervisor presiding over the internal appeal,
Mr Denner, emphasised that since Sidumo had not been charged
with
dishonesty, the fact that no actual losses were proved was
irrelevant: the charge was negligently failing to follow established
procedures. ‘An absolute fact is [that] through your
wrongdoings, the company could or may have sustained losses by means
of theft (of the prime product)’, ‘which we know impacts
financially on the viability of the company’. It was
because
of his seniority that Sidumo had been employed in a position of
trust, ‘which you abused through your negligence
and
non-adherence to work instructions’. ‘I have considered
alternatives to the dismissal’, the supervisor
concluded, ‘but
found none to be appropriate’.
In view of the later proceedings, the findings of both internal
tribunals that (a) Sidumo was guilty of negligence and (b) that
though no actual losses had been proved, potential losses or theft
may have occurred on his shifts, are significant.
CCMA hearing and determination
Sidumo then referred his dismissal to the CCMA, applying for
reinstatement or compensation. Under the LRA,
2
a commissioner is empowered to arbitrate a dismissal dispute in
which the employee has alleged that the reason for the dismissal
is
related to his or her conduct or capacity (s 191(5)(a)). The
employee bears the burden of proving that he or she was dismissed
(s
192(1)). Once that is proved, the employer bears the burden of
proving that the dismissal was fair (s 192(2)). A dismissal
is
unfair if the employer fails to prove, on balance, that the reason
for the dismissal is a fair reason relating to the employee’s
conduct or capacity (s 188(1)(a)(i)). A commissioner, in considering
whether or not the reason is a fair reason, must take into
account
any relevant code of good practice issued under the LRA (s 138(6)
and s 188(2)). The ‘Code of Good Practice: Dismissal’
is
such a code (set out in the footnote to para 17 below). A dismissal
is unfair if it is not effected for ‘a fair reason’.
This is determined by the facts of the case and the appropriateness
of dismissal as a penalty. The LRA permits the commissioner
to
conduct the arbitration in a manner the commissioner considers
appropriate in order to determine the dispute fairly and quickly,
but he must deal with the substantial merits of the dispute with the
minimum of legal formalities (s 138(1)). The commissioner
may make
any appropriate award in terms of the LRA, including an award that
gives effect to the provisions and primary objects
of the statute (s
138(9)). The express purpose of the LRA, as set out in s 1, is to
advance economic development, social justice,
labour peace and
democratisation of the workplace by fulfilling the statute’s
primary objects. These include promoting
‘the effective
resolution of labour disputes’ (s 1(d)(iv)).
At the CCMA hearing the mine’s assistant chief chemist, Mr
Williams, explained why the redressing station, where ore was
extracted from platinum group metals (platinum, vanadium, rhodium,
iridium, ruthenium), was a ‘high risk area’. The
mine’s
losses could not be attributed to ore quality or equipment problems
and therefore had to be due to theft. Surveillance
equipment was
accordingly installed, which resulted in disciplinary action. This
restored production from September 2000.
One of Sidumo’s superiors in protection services, Mr Botes,
who conducted the surveillance, and laid the charge against
him,
explained that the prevention of theft was Sidumo’s main
responsibility: because of the high value of the product,
everyone
leaving the redressing section had to be searched. During the
surveillance period (though not on Sidumo’s watch)
one thief
had for instance been caught with product worth R44 000. Sidumo was
in what Botes called a ‘high integrity position
of high
trust’. He insisted that Sidumo was well aware of how to
conduct searches – this was his main duty, which
he was
required to perform all the time. The surveillance revealed that in
cases where he performed no search at all, ‘the
person just
walked out’. Although the work should normally have been
performed by a senior patrolman, Sidumo had been posted
there
because of his experience. Botes conceded that the mine’s
disciplinary code entailed that ‘discipline and corrective
measures are put in place to put [the employee] on the right track
again’, but pointed out that the decision regarding
dismissal
was not his to make.
Testifying before the commissioner, Sidumo denied that he had
received training, and claimed to have objected to being posted
to
the security point. The commissioner’s findings implicitly
rejected both these defences, since he held that Sidumo was
‘clearly’ guilty of misconduct. Because of inaudible
passages, the transcript is not wholly clear, but Sidumo appears
to
have admitted that he knew that compulsory searching was required at
the redressing plant.
The commissioner found the procedure the mine followed in dismissing
Sidumo to be fair, but held that dismissal was inappropriate.
His
reasons were: (a) the mine had suffered no losses; (b) the violation
of the rule was ‘unintentional or “a mistake”
as
argued by the employee’; (c) the ‘level of honesty of
the employee is something to consider’; and (d) ‘the
type of offence committed by the employee does not go into the heart
of [the] relationship, which is trust’.
Review proceedings: Labour Court and Labour Appeal Court
The mine applied to the labour court to review the commissioner’s
award on the basis that there was direct and largely
unchallenged
evidence that the mine’s yield had been low since May 1998;
that over the surveillance period February to
May 2000, the metallic
yield created a revenue loss of R500 000 per day; that precious
metals were discovered on persons during
the surveillance; that the
mine had experienced theft over the previous 3 to 4 years; that
Sidumo was employed to prevent theft
and had conducted only a single
proper search while under surveillance. The mine therefore contended
that the award was not justifiable
in relation to the reasons given
for it, in that no rational link existed between the evidence before
the commissioner and the
factual conclusions that were crucial to
his award. The finding that the misconduct did not go to the heart
of the relationship
was irrational. The commissioner had therefore
been so grossly careless as to have committed misconduct; his
failure to apply
his mind meant that no fair hearing had occurred
and that a gross irregularity had been committed, while the absence
of rational
connection entailed that he had exceeded his powers.
In his affidavit opposing the mine’s application, Sidumo
elaborated the defences the commissioner had rejected. He claimed
that as a grade 2 patrolman he was ‘expected to search
randomly not to search as it is alleged’, that he had ‘no
knowledge of how a search was done at the said redressing station’
and that ‘according to the rules of the [mine]
I was not
supposed to have been posted there at all’. He also claimed
‘that search according to my grade was not
compulsory hence I
did not conduct it in the manner expected at Redressing Station’.
These claims are at variance with the commissioner’s findings
that it was undisputed that Sidumo ‘knew how to conduct
a
search and he agreed to have signed a document to affirm his
knowledge of the procedure to be followed in terms of the company
policy’; that Sidumo had ‘contravened the rule or
standard regulating conduct in or of relevance to the workplace’
and that by his ‘own admission’ while on duty during the
surveillance period he ‘was fully responsible [for]
access
control’; and that his failure ‘to perform a full
search’ constituted misconduct.
The Labour Court declined the mine’s review application.
Revelas J considered it a case of poor performance rather than
misconduct. She found that the employee had a clean service record
of almost 15 years, did not commit a violent crime or assault,
did
not steal, and did not commit an offence that ‘unequivocally
demanded dismissal as opposed to any other sanction’.
She
asked whether the commissioner’s preference for ‘corrective
or progressive discipline’ for Sidumo induced
‘a sense
of shock’, and concluded No. At best for the mine, she held,
there was poor performance or laziness, which
was ‘not the
type of misconduct which justifies dismissal without prior warning
for a first offence after 15 years of service’.
There was not
‘an iota of evidence’ that theft had occurred during
Sidumo’s shifts. That Sidumo was doing work
a more senior
employee usually performed was also ‘very significant’.
In the absence of dishonesty, employees who
do not perform their
duties properly ‘should not automatically incur the harsh
sanction of dismissal on the basis of strict
liability, even if they
work in a gold mine’.
The LAC (Zondo JP, Mogoeng JA and Comrie AJA concurring) was more
critical of the commissioner’s approach. It expressly
rejected
three of his findings. (a) The finding that the mine suffered no
losses as a result of Sidumo’s malperformance
had no basis and
was ‘indeed wholly unjustifiable’. (b) It was unclear
what the commissioner meant by saying that
Sidumo’s conduct
was a ‘mistake’ or ‘unintentional’: this
might have referred to the fact that
the charge related to
negligence, not intentional conduct – but even in that case,
this was not decisive but ‘would
have had to be taken into
account in the light of all the circumstances’. (c) Lastly,
Zondo JP remarked, ‘Quite frankly,
how the third factor,
namely dishonesty, came into the picture at all, is baffling. No
dishonesty by [Sidumo] was alleged.’
The LAC made mention of
the commissioner’s fourth finding, namely (d) that the offence
‘does not go into the heart
of [the] relationship, which is
trust’, but made no express finding regarding the
commissioner’s reliance on it (although
the LAC’s
observation that the misconduct was ‘indeed serious’ may
mean it rejected this ground).
Despite finding at least three of the commissioner’s grounds
for reinstating Sidumo wanting, the LAC declined to intervene.
It
held that had the three bad reasons been the sole basis of the
award, it would have been unjustifiable. But there were other
reasons – the commissioner also relied on the Code of Good
Practice (Schedule 8 to the LRA),
3
which provides that it is not appropriate to dismiss an employee for
a first offence unless the misconduct is serious and of
such gravity
as to make a continued employment relationship intolerable. The
commissioner had further relied on Sidumo’s
clean record over
14 years and suggested that ‘graduated disciplinary measures
such as counselling and warning’ would
be appropriate. The LAC
considered that the mine’s review papers had failed to
challenge the commissioner’s reliance
on these factors. For
the mine to contend for the first time in argument that long service
was irrelevant to the breach of a
core function was impermissible.
The LAC concluded:
‘
That
[Sidumo] had a clean record and a long service period is capable of
sustaining the finding by the commissioner that the sanction
of
dismissal was too harsh. Whether or not it would have been enough to
sustain the finding had it been challenged in the founding
affidavit
is another matter. However, I must say that, although the misconduct
of [Sidumo] is indeed serious, I am not sure that
I would not have
been in doubt about whether I should interfere with the finding of
the [commissioner]. And in case of doubt, the
court should not
interfere.’
The test for review of CCMA arbitrations
Section 145(1) of the LRA provides for ‘review of arbitration
awards’ by the labour court on ground of ‘a defect’.
Subject to the court’s power to grant condonation (s145(1A)),
the application must be brought within six weeks of the award
(or,
in cases of corruption, six weeks from discovery of the offence). In
terms of s 145(2), ‘defect’ means –
‘
(a)
that the commissioner –
(i) committed misconduct in relation to
the duties of the commissioner as an arbitrator;
(ii) committed a gross irregularity in
the conduct of the arbitration proceedings; or
(iii) exceeded the commissioner’s
powers; or
(b) that an award has been
improperly obtained’
.
Until 2002, s 158(1)(g) empowered the labour court, ‘despite s
145’, to review the performance of any function provided
for in
the LRA ‘on any grounds that are permissible in law’.
4
In 2002, ‘despite’ was replaced with ‘subject to’.
The LRA received assent on 29 November 1995 and came into operation
on 11 November 1996. On both those dates, the interim Constitution
(Act 200 of 1993) was in force, which provided that the fundamental
right to administrative justice (s 24) entitled every person
to –
‘
(d)
administrative action which is justifiable in relation to the reasons
given for it where any of his or her rights is affected
or
threatened’.
In
Carephone (Pty) Ltd v Marcus NO
,
5
the LAC reconciled the provisions of s 145(2) and s 158(1)(g) with
each other, and with the administrative justice provisions
of the
interim Constitution, by holding that the test for review of a CCMA
arbitrator’s decision went beyond mere questions
of procedural
impropriety, or irrationality only as evidence of procedural
impropriety: the question was whether there was ‘a
rational
objective basis justifying the connection’ the commissioner
made between the material properly available and the
decision (paras
31 and 37).
Despite some initial dissent,
6
the LAC accepted after the decision of the Constitutional Court in
Pharmaceutical Manufacturers of SA: In re Ex parte President of
the Republic of South Africa
,
7
and after the enactment of the Promotion of Administrative Justice
Act 3 of 2000 (PAJA), that the
Carephone
test was applicable
to the review of CCMA decisions. PAJA, which enacted grounds of
review considerably more extensive than those
set out in s 145(2) of
the LRA,
8
came into force on 30 November 2000. Of present moment is s
6(2)(f)(ii), which empowers a court to review an administrative
action if the action itself is ‘not rationally connected to’
–
‘
(cc)
the information before the administrator; or
(dd) the reasons given for it by the
administrator’.
In
Shoprite Checkers (Pty) Ltd v Ramdaw NO
9
the LAC considered the possible effect of PAJA’s enactment on
s 145(2). The LAC accepted ‘the possibility that the
PAJA may
well be applicable to arbitration awards issued by the CCMA’
(
para 33)
, but found it unnecessary to
decide the issue.
In my view, PAJA by necessary implication extended the grounds of
review available to parties to CCMA arbitrations. In interpreting
the LRA, and the impact on it of the later enactment of PAJA, the
Constitution obliges us to promote the spirit, purport and
objects
of the Bill of Rights.
10
This means that, without losing sight of the specific constitutional
objectives of the LRA, and the constitutional values it
embodies, we
must in interpreting it give appropriate recognition to the right to
administrative justice under the final Constitution
and the
legislation that gives effect to it.
It follows that the overriding factor in determining the impact of
PAJA on the LRA is the constitutional setting in which PAJA
was
enacted. Parliament enacted PAJA because of a constitutional
obligation to give legislative effect to the right to just
administrative action embodied in the final Constitution.
11
That obligation did not exempt from its ambit previous parliamentary
enactments that conferred rights of administrative review.
It
extended to all of them. This is so even though the LRA is a
specialised statute. According to its preamble, it was enacted
to
give effect to s 27 of the interim Constitution (though unlike PAJA
it is not the product of an express imperative obliging
Parliament
to legislate). It did so by regulating various matters within the
labour relations field. Both the Constitution, which
required
Parliament to give general legislative effect to the right to
administrative justice, and the legislation so enacted,
superseded
the LRA’s specialised enactment within the field.
As the Constitutional Court has stated,
12
the provisions of s 6 reveal a clear purpose to codify the grounds
of review of administrative action as defined in PAJA. The
Constitution required PAJA to cover the field, and it purports to do
so.
13
Notable in this respect is that ‘court’ in terms of s 1
of PAJA includes ‘a High Court or another court of
similar
status’ – which plainly encompasses the labour courts.
There can be no doubt that a CCMA commissioner’s
arbitral
decision constitutes administrative action. In my view, s 6’s
codificatory purpose subsumed the grounds of review
in s 145(2), and
PAJA’s constitutional purpose must be taken to override that
provision’s preceding, more constricted,
formulation.
A slightly different path leads to the same conclusion. At the time
the LRA was enacted, the interim Constitution required that
administrative action be ‘justifiable in relation to the
reasons given for it’. For the reasons set out in
Carephone
,
this right suffused the interpretation of s 145(2). When the
administrative justice provisions of the Constitution, as embodied
in PAJA, superseded those of the interim Constitution, it could not
have been intended that parties to CCMA arbitrations should
enjoy a
lesser right of administrative review than that afforded under the
interim Constitution. The repeal of the interim Constitution
and its
replacement by the Constitution in other words did not diminish the
review entitlement under s 145(2). Section 6(2) of
PAJA is the
legislative embodiment of the grounds of review to which arbitration
parties became entitled under the Constitution.
The extension of the grounds of review does not impinge on the time
periods in s 145(1). PAJA requires that proceedings for judicial
review be instituted without unreasonable delay and in any event not
later than 180 days after exhaustion of internal remedies
or after
the person concerned became aware of the action challenged and the
reasons for it (s 7(1)). That is a longer period
than the six weeks
s 145(1) affords. However, as both the CC
14
and this court
15
have emphasised, labour disputes require speedy resolution, and the
legislature gave clear effect to this special imperative
in s 145(1)
by requiring a labour disputant to act quickly. The Constitution
does not require that the legislation enacted to
give effect to the
right to administrative justice must embody any particular time
periods. This is therefore a question on which
the legislature may
be expected to legislate differently in different fields, taking
into account particular needs.
16
The LAC’s approach to the test for review
It will be recalled that the LAC faulted the mine for not
challenging the commissioner’s reliance on the Code of Good
Practice and on Sidumo’s clean record and long service in its
founding affidavit, but only in argument. This was incorrect.
The
mine considered from the outset that Sidumo’s clean record and
long service were indeed relevant: both internal decisions
carefully
note their significance. The mine’s case was that despite
these factors the continued employment relationship
was intolerable
under the Code. The mine’s complaint was therefore not that
the commissioner took relevant factors into
account, but that his
decision was tainted by reliance on misconceived considerations. As
Mr Gauntlett pointed out in argument,
the mine could hardly be
criticised for not complaining about reliance on factors that it
considered legitimate itself. The mine’s
true complaint –
which in the nature of things its founding papers could not foresee,
but which could be raised only in
argument – was that the
labour court and the LAC held that those factors insulated the
commissioner’s decision from
their intervention.
For what both
Carephone
and PAJA required the LAC to do was
to consider whether the commissioner’s decision to reinstate
Sidumo was ‘rationally
connected’ to the information
before him and
to the reasons he gave for it
. ‘Rational
connection’ requires, as Froneman DJP explained in
Carephone
(para 37), in a passage this court approved and applied in the light
of PAJA,
17
that there must be a rational objective basis justifying the
connection the commissioner made between the material before him
and
the conclusion he reached.
The LAC did not apply this test. Nor did it refer to
Carephone
,
or indeed to PAJA. Instead, it asked whether considerations existed,
which the commissioner had taken into account, that were
‘capable
of sustaining’ his finding. In effect, the LAC asked whether
there was material on record that could support
the view that,
despite his errors, the commissioner had nevertheless ‘got it
right’. In so approaching the matter,
the LAC treated the
mine’s challenge to the decision as an appeal. In my
respectful view, this was incorrect. The question
on review is not
whether the record reveals relevant considerations that are capable
of justifying the outcome. That test applies
when a court hears an
appeal: then the inquiry is whether the record contains material
showing that the decision – notwithstanding
any errors of
reasoning – was correct. This is because in an appeal, the
only determination is whether the decision is
right or wrong.
18
In a review, the question is not whether the decision is capable of
being justified (or, as the LAC thought, whether it is not
so
incorrect as to make intervention doubtful), but whether the
decision-maker properly exercised the powers entrusted to him
or
her. The focus is on the process, and on the way in which the
decision-maker came to the challenged conclusion. This is not
to
lose sight of the fact that the line between review and appeal is
notoriously difficult to draw. This is partly because
process-related scrutiny can never blind itself to the substantive
merits of the outcome. Indeed, under PAJA the merits to some
extent
always intrude, since the court must examine the connection between
the decision and the reasons the decision-maker gives
for it, and
determine whether the connection is rational. That task can never be
performed without taking some account of the
substantive merits of
the decision.
But this does not mean that PAJA obliterates the distinction between
review and appeal. As this Court has observed:
‘
In
requiring reasonable administrative action, the Constitution does not
… intend that such action must, in review proceedings,
be
tested against the reasonableness of the merits of the action in the
same way as an appeal. In other words, it is not required
that the
action must be substantively reasonable, in that sense, in order to
withstand review. Apart from that being too high a
threshold, it
would mean that all administrative action would be liable to
correction on review if objectively assessed as substantively
unreasonable
…’
19
In
Carephone
, Froneman DJP explained that in determining
whether administrative action is justifiable in terms of the reasons
given for it (or,
in PAJA’s formulation, whether the connection
made is ‘rational’) –
‘
value
judgments will have to be made which will, almost inevitably, involve
the consideration of the ‘merits’ of the
matter in some
way or another. As long as the Judge determining this issue is aware
that he or she enters the merits not in order
to substitute his or
her own opinion on the correctness thereof, but to determine whether
the outcome is rationally justifiable,
the process will be in
order.’
20
Application of process-review under PAJA
In my respectful view, the LAC lost from sight that it was required
to subject the commissioner’s decision to process-related
scrutiny, and not to inquire whether his decision was capable of
being sustained by recourse to other factors emerging from the
record. Turning to that task, it is evident that apart from the
employee’s clean record and long service, the commissioner
took four considerations into account. Three of these (absence of
loss; ‘mistake’; no dishonesty) the LAC rightly
rejected
as bad. The fourth – that the misconduct did not go to the
heart of the relationship, ‘which is trust’
– was
in my view also incorrect. This is for two reasons. First, the
failure to search represented not a peripheral malperformance,
but a
profound failure at the very core of the employee’s job
functions. Second, the employer trusted him to carry out
searches
unsupervised while he was on watch: his failure to do so necessarily
violated that trust.
Given that the commissioner took four bad reasons into account in
reinstating the employee, but that other legitimate reasons
existed
that were capable of sustaining the outcome, can it be said that the
employee’s reinstatement was ‘rationally
connected’
to the information before the commissioner, or the reasons given for
it, as PAJA requires? In my view, it can
not. It can certainly not
be said that the outcome was ‘rationally connected’ to
the commissioner’s reasons
as a whole, for those reasons were
preponderantly bad, and bad reasons cannot provide a rational
connection to a sustainable
outcome. Nor does PAJA oblige us to pick
and choose between the commissioner’s reasons to try to find
sustenance for the
decision despite the bad reasons. Once the bad
reasons played an appreciable or significant role in the outcome, it
is in my
view impossible to say that the reasons given provide a
rational connection to it. This dimension of rationality in
decision-making
predates its constitutional formulation. In
Patel
v Witbank Town Council
,
21
Tindall J set aside a decision which had been ‘substantially
influenced’ by a bad reason. He asked:
‘
[W]hat
is the effect upon the refusal of holding that, while it has not been
shown that grounds 1, 2, 4 and 5 are assailable, it
has been shown
that ground 3 is a bad ground for a refusal? Now it seems to me, if I
am correct in holding that ground 3 put forward
by the council is
bad, that the result is that the whole decision goes by the board;
for this is not a ground of no importance,
it is a ground which
substantially influenced the council in its decision. …
This ground having substantially
influenced the decision of the committee, it follows that the
committee allowed its decision to
be influenced by a consideration
which ought not to have weighed with it.’
The same applies where it is impossible to distinguish between the
reasons that substantially influenced the decision, and those
that
did not.
22
For these reasons, the commissioner’s determination should
have been set aside.
The LAC’s oversight over CCMA commissioners’
determinations
There is a further reason why the commissioner’s decision was
vulnerable to review. In my view, the commissioner failed
to
appreciate the ambit of his duties under the statute, and therefore
incorrectly approached the task entrusted to him of determining
whether the employee’s dismissal was fair. Because of the
general importance of this point, its relation to the LAC’s
oversight of the CCMA as evidenced in the judgment requires
emphasis.
As already observed (para 29 above), the test the LAC applied in
scrutinising the commissioner’s decision was more appropriate
to the hearing of an appeal than to the task of review. The effect
of this approach has been to give CCMA commissioners more
leeway
than the statute allows, since it insulates their decisions from
intervention unless the record is devoid of reasons that
are capable
of justifying the outcome. Other tests propounded in the LAC have
gone even further in this direction. One suggests
that intervention
is appropriate only where there is a ‘yawning chasm’
between the sanction the court would have
imposed and that of the
commissioner, or where the sanction ‘is so egregious that it
shocks and alarms the court’.
23
This narrows the ground for intervention even further, since it
likens the proceedings to an appeal against sentence: and the
scope
for intervention in such proceedings is notoriously narrow.
It is hard not to feel considerable appreciation for the LAC’s
dilemma in attempting to find a constrictive test for review.
The
LAC is a specialist tribunal with experience in and knowledge of the
labour field, and is particularly aware of the danger
that the
labour courts could be flooded with review applications from
importunate parties who resent CCMA determinations.
24
But it seems to me that the LAC sought to tackle the problem at the
wrong end. The answer to the spectre of a flood of disgruntled
litigants lies not in an unduly constricted or misfashioned standard
of review, but in directing CCMA commissioners more closely
to the
proper scope of their powers and duties under the LRA.
For the LRA embodied a historic compromise between labour and
employers, both being represented by experts on the drafting
committee that produced it. And the statute’s formulation of
the employer’s powers, and those of the CCMA in overseeing
their exercise, reflected the careful balance that compromise
entailed. It is therefore vital that the LRA’s wording should
be given proper effect.
With great respect to the LAC, I do not think the review tests it
sought to fashion are either statutorily warranted or
constitutionally
sound. A sentence in a criminal case is insulated
against intervention because its imposition involves the exercise of
a discretion
entrusted to the judicial officer, which is not readily
overturned. By contrast, a CCMA commissioner is not vested with a
discretion
to impose a sanction in the case of workplace incapacity
or misconduct. That discretion belongs in the first instance to the
employer. The commissioner enjoys no discretion in relation to
sanction, but bears the duty of determining whether the employer’s
sanction is fair. This was clearly explained by Ngcobo JA in the LAC
in
Nampak Corrugated Wadeville v Khoza
:
25
‘
The
determination of an appropriate sanction is a matter which is largely
within the discretion of the employer. However, this discretion
must
be exercised fairly. A court should, therefore, not lightly interfere
with the sanction imposed by the employer unless the
employer acted
unfairly in imposing the sanction. The question is not whether the
court would have imposed the sanction imposed
by the employer, but
whether in the circumstances of the case the sanction was
reasonable.’
This statement of the law elicited a spirited debate within the LAC,
after Ngcobo JA’s departure from it, which it is unnecessary
to review here,
26
about the applicability of the ‘reasonable employer’
test. It suffices to say that the key elements of Ngcobo JA’s
approach are: (a) the discretion to dismiss lies primarily with the
employer; (b) the discretion must be exercised
fairly
; and
(c) interference should not lightly be contemplated.
That is indeed what the statute requires, and in
County Fair
Foods (Pty) Ltd v CCMA
,
27
Ngcobo AJP returned to the fairness criterion and to the just ambit
of employer discretion. He now emphasised (d) that commissioners
should use their powers to intervene with ‘caution’, and
(e) that they must afford the sanction imposed by the employer
‘a
measure of deference’. The rationale is that the duty of
imposing the workplace sanction rests primarily with
the employer:
‘
Given
the finality of the awards and the limited power of the Labour Court
to interfere with the awards, commissioners must approach
their
functions with caution. They must bear in mind that their awards are
final – there is no appeal against their awards.
In particular,
commissioners must exercise greater caution when they consider the
fairness of the sanction imposed by the employer.
They should not
interfere with the sanction merely because they do not like it. There
must be a measure of deference to the sanction
imposed by the
employer subject to the requirement that the sanction imposed by the
employer must be fair. The rationale for this
is that it is primarily
the function of the employer to decide upon the proper sanction.
…
The mere fact that the commissioner may
have imposed a somewhat different sanction or a somewhat more severe
sanction than the employer
would have, is no justification for
interference by the commissioner.
…
…
In
my view, interference with the sanction imposed by the employer is
only justified where the sanction is unfair or where the employer
acted unfairly in imposing the sanction. This would be the case, for
example, where the sanction is so excessive as to shock one’s
sense of fairness. In such a case, the commissioner has a duty to
interfere.’
This analysis is firmly rooted in the prescripts of the statute, and
affords an approach to the duties of commissioners that
is not only
fair and practicable, but would also shield the labour courts from
the very flood of litigation the alternative tests
have mistakenly
been designed to avoid. It is in my view regrettable that the LAC
has not consistently affirmed and applied the
analysis. Although
some panels have affirmed Ngcobo AJP’s approach,
28
this case indicates how far the practice of the LAC has on occasion
strayed from it. Instead of insisting that under the LRA
the
discretion to impose the sanction lies primarily with the employer,
to be overturned only with caution, the approach evidenced
in the
present case appears to have upended the due order and conferred the
discretion instead on the commissioner. Instead of
exhorting
commissioners to exercise greater caution when intervening, and to
show a measure of deference to the employer’s
sanction, so
long as it is fair, it has insulated commissioners’ decisions
from intervention by importing unduly constrictive
criteria into the
review process.
In view of this, it is worth emphasising some of the reasons that
underlay the analysis of Ngcobo AJP. One is textual; another
conceptual; and a third institutional.
Textual
: Section 188(2) of the LRA requires any person
considering whether or not the reason for dismissal is ‘a fair
reason’
to take into account the Code of Good Practice on
dismissal (Schedule 8 to the LRA, set out in the footnote to para 16
above).
The Code is significant in locating the first-line
responsibility for workplace discipline and sanction with the
employer. I
say this for three reasons:
(i) Item 7(b)(iv) of the
Code requires the commissioner to consider whether dismissal was ‘an’
appropriate sanction
for the contravention. It does not require the
commissioner to consider whether it was ‘the’ appropriate
sanction.
The use of the indefinite, as opposed to the definite,
article is important.
29
It shows the legislature’s awareness that more than one
sanction could be considered ‘fair’ for the
contravention.
(ii) The benchmark the Code
repeatedly sets is whether the sanction is ‘appropriate’.
This requires the sanction to
be suitable or proper. As Myburgh and
van Niekerk observe, ‘The benchmark of appropriateness
necessarily implies a range
of responses.’
30
(iii) The Code states that
generally it is not appropriate to dismiss for a first offence unless
the misconduct is serious and of
such gravity that it makes a
continued employment relationship ‘intolerable’.
‘Intolerable’ means ‘unable
to be endured’
(Concise Oxford Dictionary). This necessarily imports a measure of
subjective perception and assessment, since
the capacity to endure a
continued employment relationship must exist on the part of the
employer. It follows that the primary
assessment of intolerability
unavoidably belongs to the employer. This is not to confer a
subjective say-so. Allowing some leeway
to the employer’s
primacy of response does not permit caprice or arbitrariness. A mere
assertion on implausible grounds that
a continued relationship is
intolerable will not be sufficient. The criterion remains whether the
dismissal was fair.
Conceptual
: The
text of the Code has its roots in the inherent malleability of the
criterion it enshrines, namely fairness, which is not
an absolute
concept. The criterion of fairness denotes a range of possible
responses, all of which could properly be described
as fair. The use
of ‘fairness’ in everyday language reflects this. We may
describe a decision as ‘very fair’
(when we mean that it
was generous to the offender); or ‘more than fair’ (when
we mean that it was lenient); or we
may say that it was ‘tough,
but fair’, or even ‘severe, but fair’ (meaning
that while one’s own
decisional response might have been
different, it is not possible to brand the actual response unfair).
It is in this latter
category, particularly, that CCMA commissioners
must exercise great caution in evaluating decisions to dismiss. The
mere fact
that a CCMA commissioner may have imposed a different
sanction does not justify concluding that the sanction was unfair.
Commissioners
must bear in mind that fairness is a relative concept,
and that employers should be permitted leeway in determining a fair
sanction.
As Myburgh and van Niekerk suggest:
‘
The
first step in the reasoning process of the commissioner should be to
recognise that, within limits, the employer is entitled
to set its
own standards of conduct in the workplace having regard to the
exigencies of the business. That much is trite. The employer
is
entitled to set the standard and to determine the sanction with which
non-compliance with the standard will be visited.’
31
Todd and Damant explain:
‘
The
court must necessarily recognise that there may be a range of
possible decisions that the employer may take, some of which may
be
fair and some of which may be unfair. The court’s duty is to
determine whether the decision that the employer took falls
within
the range of decisions that may properly be described as being
fair.’
32
This passage equally describes the duty of a commissioner. It follows
that in determining the fairness of a dismissal, a commissioner
need
not be persuaded that dismissal is
the only
fair sanction. The
statute requires only that the employer establish that it is
a
fair sanction. The fact that the commissioner may think that a
different sanction would also be fair, or fairer, or even more than
fair, does not justify setting aside the employer’s sanction.
Institutional
: As the approach of Ngcobo AJP implies, the
solution to the flood of cases the LAC understandably fears does not
lie in unduly
constricting the grounds of review to permit. It lies
in pointing commissioners firmly to the limits the statute places
upon
their power to intervene:
‘
If
commissioners could substitute their judgment and discretion for the
judgment and discretion fairly exercised by the employers,
then the
function of management would have been abdicated – employees
would take every case to the CCMA. This result would
not be fair to
employers.’
33
Summary
To summarise:
(a) PAJA applies in the
review of the decisions of CCMA commissioners.
(b) The review criterion
relevant to this case is whether the decision is rationally connected
with the information before the commissioner
and with the reasons
given for it.
(c) In applying this
criterion the question is whether there is a rational objective basis
justifying the connection the commissioner
made between the available
material and the conclusion.
(d) Commissioners must
exercise caution when determining whether a workplace sanction
imposed by an employer is fair. There must
be a measure of deference
to the employer’s sanction, because under the LRA it is
primarily the function of the employer
to decide on the proper
sanction.
(e) In determining whether
a dismissal is fair, a commissioner need not be persuaded that
dismissal is
the only
fair sanction. The statute requires only
that the employer establish that it is
a
fair sanction. The
fact that the commissioner may think that a different sanction would
also be fair does not justify setting aside
the employer’s
sanction.
Conclusion: substitution of commissioner’s determination
It follows that the commissioner’s determination cannot stand
and must be set aside. This conclusion makes it unnecessary
to
consider the mine’s further argument, that Sidumo’s
absence of remorse, and his conduct in untruthfully denying
the
ambit of his duties before the commissioner, and in persisting in
that defence in his affidavits in the review, itself rendered
his
continued employment intolerable. There is long-standing LAC
authority for this proposition,
34
but the present case does not require that it be considered.
The parties were agreed, should the commissioner’s
determination be set aside, because of the long time that has passed
since the dismissal (now more than six years), and the fact that
this court has before it all the necessary information, and
that the
issues have been fully traversed, that it would not be in the
interests of justice for the matter to be referred back
to the CCMA
for arbitration afresh. Both parties instead asked that in view of
the circumstances this court substitute its own
decision.
Addressing, then, the question the commissioner had before him, it
is necessary to consider the gravity of the misconduct (which
exposed the mine to the risk of serious loss) in the light of the
employee’s unblemished fourteen-year service record.
Here the
factors set out in para 33 above are relevant: the employee’s
misconduct went to the heart of the employment relationship
and
violated the trust the employer placed in him. What is more, the
failure to search unsupervised – which constituted
his core
duty – was sustained over three shifts. Though the sanction of
dismissal is undoubtedly severe, especially in
its effects on the
employee, it is in my view impossible to say that it is not a fair
sanction. It certainly seems to me to fall
within the range of
sanctions that the employer was fairly permitted to impose. The
employee should therefore have been refused
the relief he sought.
Costs
Given the broader dimensions of this litigation, and that leave to
appeal was sought, and granted, because this was a ‘test
case’, I am of the view that it would be unfair to burden the
employee with the costs in this court.
The order is as follows:
1. The appeal succeeds.
2. The order of the LAC is
set aside. In its place is substituted:
‘
(i)
The appeal succeeds with costs.
(ii) The decision of the
Labour Court is set aside. In its place is substituted:
“
(a)
The review succeeds with costs.
(b) The decision of the
second respondent, the CCMA commissioner, is set aside.
(c) In its place there is
substituted a determination that the dismissal of the employee was
fair.”’
E CAMERON
JUDGE OF APPEAL
CONCUR:
HARMS JA
CLOETE JA
LEWIS
JA
MAYA JA
1
The
search procedures which Sidumo signed required him to search all
persons leaving redressing, one at a time, in the search
cubicle; to
request completion of the search register and declaration of all
company property and production of a waybill/permit;
to inspect /
search hand luggage / company property, as well as watch, jewellery,
private property and hard hat; frontal and
rear body frisk –
search from hands to feet (female to be searched by female member);
metal detector scan of rear and front;
metal detector scan of shoes
as well as underneath both feet; and that the search register be
updated.
2
The
exposition in this paragraph derives heavily from John Myburgh SC
and André van Niekerk, ‘
Dismissal as
a Penalty for Misconduct: The Reasonable Employer and Other
Approaches’ (2000) 21
ILJ
2145 at 2152ff, to which I am indebted.
3
LRA,
Schedule 8, CODE OF GOOD PRACTICE: DISMISSAL
…
Item 2, ‘
Fair
reasons for dismissal
’
:
‘
(1) A dismissal is unfair if it is not
effected for a fair reason and in accordance with a fair procedure …
Whether or
not a dismissal is for a fair reason is determined by the
facts of the case, and the appropriateness of dismissal as a
penalty.
…
…’
…
Item 3, ‘
Disciplinary
measures short of dismissal
’
:
‘…
Dismissals for misconduct
(4) Generally, it is not appropriate to dismiss an employee for a
first offence, except if the misconduct is serious and of such
gravity that it makes a continued employment relationship
intolerable. Examples of serious misconduct, subject to the rule
that each case should be judged on its merits, are gross dishonesty,
or wilful damage to the property of the employer, wilful endangering
of the safety of others, physical assault on the employer, a fellow
employee, client or customer and gross insubordination. Whatever
the
merits of the case for dismissal might be, a dismissal will not be
fair if it does not meet the requirements of s 188.
(5) When deciding whether or not to impose the penalty of dismissal,
the employer should in addition to the gravity of the misconduct
consider factors such as the employee’s circumstances
(including length of service, previous disciplinary record and
personal circumstances), the nature of the job and the circumstances
of the infringement itself. …’
…
Item 7, ‘
Guidelines
in cases of dismissal for misconduct
’
:
‘
Any person who is determining whether a
dismissal for misconduct is unfair should consider –
(a) whether or not the employee contravened a rule or standard
regulating conduct in, or of relevance to, the workplace; and
(b) if a rule or standard was contravened, whether or not –
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have
been aware, of the rule or standard;
(iii) the rule or standard has been consistently applied by the
employer; and
(iv) dismissal was an appropriate sanction for the contravention of
the rule or standard.’
4
Section
36(b) of Act 12 of 2002 replaced ‘despite’ in s
158(1)(g) with ‘subject to’.
5
1999
(3) SA 304
(LAC), per Froneman DJP; Myburgh JP and Cameron JA
concurring.
6
See
Calvin William Sharpe ‘Reviewing CCMA Arbitration Awards:
Towards Clarity in the Labour Courts’ (2000) 21
ILJ
2060 at 2164ff.
7
[2000] ZACC 1
;
2000
(2) SA 674
(CC) (
holding that decisions in the exercise of
public power by the executive and other functionaries must capable
of being shown, objectively,
to be rationally related to the purpose
for which the power is given (para 85)).
8
Promotion
of Administrative Justice Act 3 of 2000
s 6(2):
(a) the administrator who took it –
(i) was not authorised to do so by the empowering provision;
(ii) acted under a delegation of power which was not authorised by
the empowering provision; or
(iii) was biased or reasonably suspected of bias;
(b) a mandatory and material procedure or condition prescribed by an
empowering provision was not complied with;
(c) the action was procedurally unfair;
(d) the action was materially influenced by an error of law;
(e) the action was taken –
(i) for a reason not authorised by the empowering provision;
(ii) for an ulterior purpose or motive;
(iii) because irrelevant considerations were taken into account or
relevant considerations were not considered;
(iv) because of the unauthorised or unwarranted dictates of another
person or body;
(v) in bad faith; or
(vi) arbitrarily or capriciously;
(f) the action itself –
(i) contravenes a law or is not authorised by the empowering
provision; or
(ii) is not rationally connected to –
(aa) the purpose for which it was taken;
(bb) the purpose of the empowering provision;
(cc) the information before the administrator; or
(dd) the reasons given for it by the administrator;
(g) the action concerned consists of a failure to take a decision;
(h) the exercise of the power or the performance of the function
authorised by the empowering provision, in pursuance of which
the
administrative action was purportedly taken, is so unreasonable that
no reasonable person could have so exercised the power
or performed
the function; or
(i) the action is otherwise unconstitutional or unlawful.
9
2001(4)
SA 1038 (LAC) (Zondo JP, Mogoeng JA and Joffe AJA concurring).
10
Constitution
s 39(2); cf Ngcobo J on behalf of the Court in
Bato Star
Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004 (4)
SA 490
(CC) para 72
.
11
Constitution
s 33(3): ‘National legislation must be enacted to give effect
to these rights …’
12
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004
(4) SA 490
(CC) para 25 (O’Regan J on behalf of the Court).
13
Minister
of Health v New Clicks SA (Pty) Ltd
2006
(2) SA 311
(CC) para 95, per Chaskalson CJ; paras 433-7 per Ngcobo
J.
14
National
Education, Health and Allied Workers Union v University of Cape Town
2003 (3) SA 1
(CC) para 31.
15
National
Union of Metalworkers of SA v Fry’s Metals (Pty) Ltd
2005
(5) SA 433
(SCA) para 41.
16
It
follows that I am unable to agree with the approach Willis J adopted
in the court a quo in
Sasol Oil (Pty)
Ltd v Metcalfe NO
2004 (5) SA 161
(W) para 7 that the
times PAJA stipulates in s 7 universally override previously
legislated shorter time periods. This court
overturned the decision
on grounds that made it unnecessary to consider the question of time
periods:
MEC for Agriculture, Conservation, Environment and Land
Affairs v Sasol Oil (Pty) Ltd
[2006] 2 All SA 17
(SCA) para 20.
17
Trinity
Broadcasting (Ciskei) v Independent Communications Authority of SA
2004 (3) SA 346
(SCA) para 21, per Howie P on
behalf of the court.
18
Tikly
v Johannes NO
1963 (2) SA 588
(T)
590H, per Trollip J.
19
Trinity
Broadcasting (Ciskei) v Independent Communications Authority of SA
2004 (3) SA 346
(SCA) para 20.
20
1999
(3) SA 304
(LAC) para 36. Professor Cora Hoexter says of the
merits/process distinction that ‘No one has ever summed this
up better
than Froneman DJP did in the
Carephone
case’ in the passage cited (‘Standards
of Review of Administrative Action – review for
reasonableness’,
Chapter 7 in Jonathan Klaaren (editor)
A
Delicate Balance: The Place of the Judiciary in Constitutional
Democracy – Proceedings of a Symposium to Mark the Retirement
of Arthur Chaskalson
(2006) pages
68-9).
21
1931
TPD 281
at 290.
22
See
Lawrence Baxter,
Administrative Law
(1984) page 521 and
Free
Press of Namibia (Pty) Ltd v Cabinet for the Interim Government of
South West Africa
1987 (1) SA 614
(SWA) 626.
23
Toyota
SA Motors (Pty) Ltd v Radebe
(2000) 21
ILJ
340
(LAC) para 53 (Nicholson JA, Mogoeng JA concurring).
24
‘
The
sheer volume of the CCMA caseload places a premium upon the final,
informal, efficient and cost-effective resolution of dismissal
disputes’:
Calvin William Sharpe
‘Reviewing CCMA Arbitration Awards: Towards Clarity in the
Labour Courts’ (2000) 21
ILJ
2060 at 2161.
25
(1999)
20
ILJ
578
(LAC) para 33.
26
See
the decisions and the literature reviewed in John Myburgh SC and
André van Niekerk, ‘
Dismissal as a
Penalty for Misconduct: The Reasonable Employer and Other
Approaches’ (2000) 21
ILJ
2145.
27
(1999)
20
ILJ
1701
(LAC) para 28.
28
Branford
v Metrorail Services (Durban)
(2003)
24
ILJ
2269
(LAC) para 20, per Jafta AJA (Nicholson JA concurring).
29
S
v Nkwanyana
[1990] ZASCA 95
;
1990 (4) SA 735
(A) 745
E-F, per Nestadt JA on behalf of the court, emphasising the
difference in a sentencing provision between ‘the proper
sentence’ (which means ‘the only proper sentence’)
and ‘a proper sentence’ (which entails a range
of
possible sentences).
30
(2000)
21
ILJ
2145
at 2159.
31
(2000)
21
ILJ
2145
at 2158.
32
Chris
Todd and Graham Damant ‘Unfair Dismissal – Operational
Requirements’ (2004) 25
ILJ
896 907.
33
County
Fair Foods (Pty) Ltd v CCMA
(1999) 20
ILJ
1701 (LAC) para 30.
34
De
Beers Consolidated Mines Ltd v CCMA
(2000)
12
ILJ
1051
(LAC) para 25, per Conradie JA.