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[2021] ZALAC 5
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Securitas Specialised Services (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JA 06/2019) [2021] ZALAC 5; [2021] 5 BLLR 475 (LAC); (2021) 42 ILJ 1071 (LAC) (22 January 2021)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA 06/2019
In the matter between:
SECURITAS SPECIALISED
SERVICES
(PTY)
LTD
Appellant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
First Respondent
KHUMALO, MDUZI
N.O Second
Respondent
KUNGIWE AMALGAMATED
WORKERS UNION obo
PEHEME
EDWARD Third
Respondent
Heard:
06 November 2020
Delivered:
22 January 2021
Summary:
CCMA arbitration proceedings---Decisions and awards of
commissioners---Test for review---Restatement of test set out in
Sidumo and Another v Rustenburg
Platinum Mines Ltd and Others
(2007)
28 ILJ 2405 (CC
)---
Commissioner
misdirection on procedural fairness of dismissal immaterial for the
determination of substantive fairness of dismissal----Award
standing
scrutiny if despite procedural misdirection by commission award
falling within ban of reasonableness.
CCMA arbitration
proceedings---Decisions and awards of commissioners---Test for
review--- Review test distincts from that of appeal---Review
test
focusing on whether outcome reasonable and appeal whether decision
right or wrong.
Coram: Davis JA,
Murphy AJA and Kathree-Setiloane AJA
JUDGMENT
KATHREE-SETILOANE AJA
[1]
This is an appeal against the judgment and
order of the Labour Court (Mahosi J) reviewing and setting aside the
arbitration award
of the second respondent (“arbitrator”)
made under the auspices of the first respondent, the Commission for
Conciliation,
Mediation and Arbitration (“CCMA”) in which
he found that the employee’s dismissal was procedurally and
substantively
unfair. The appeal lies with leave of this Court.
Background
[2]
The appellant is a private security
company. Prior to his dismissal, Mr Edward Pheme (“employee”)
was employed as a
Contracts Manager by the appellant for a period of
sixteen years. His duties comprised providing security services to
the appellant’s
clients and managing a team of security
officers who reported directly to him.
[3]
Arising from allegations of misconduct
against him that included (a) violence and threats of violence; (b)
bringing the appellant’s
name into disrepute; (c) gross
negligence in the performance of his duties; (d) unauthorised
absenteeism from the workplace; and
(e) failure to follow a lawful
and reasonable instruction, the employee was charged and given notice
to attend a disciplinary hearing.
[4]
The disciplinary hearing took place on 21 July
2011. The employee sought a postponement as he was unrepresented and
needed time
to prepare. Ms. Fritz, the chairperson of the inquiry
postponed the hearing to 26 July 2011. On resumption of the hearing,
the
employee arrived with his representative, Mr James Hlatswayo (a
union official). Since Mr Hltaswayo was neither a shop-steward or
co-worker of the employee, he was not permitted to represent him. The
employee, therefore, represented himself at the disciplinary
inquiry.
[5]
The appellant called three witnesses to prove the charges of
misconduct
against the employee. The employee cross-examined these
witnesses but refused to testify. Having considered the evidence
before
her, the chairperson found the employee guilty of misconduct
and recommended his dismissal.
[6]
The employee did not appeal the decision and was dismissed by the
appellant on 12 August 2011.
The
Arbitration Award
[7]
The employee referred an unfair dismissal dispute to the CCMA.
He challenged both the substantive and procedural fairness of his
dismissal.
[8]
In relation to the procedural fairness of the dismissal, the
arbitrator found that the appellant’s refusal to allow Mr
Hlatswayo
to represent the employee prejudiced him in his ability to
present his case. He, accordingly, found the employee’s
dismissal
to be procedurally unfair.
[9]
The primary charge concerned the allegation that the employee,
at a counselling session with his Manager, Mr Joel Skosana (“Mr
Skosana”), informed him that he (the employee) had entered the
workplace with his personal firearm. According to the appellant,
this
remark was directed at his Divisional Manager, Mr Johan Myburgh (“Mr
Myburgh) with whom he had a bad relationship and
“could result
in a life-threatening situation”. In relation to this charge,
the arbitrator held as follows:
‘
There
are two mutually destructive versions on this point. The concern I
have with the [appellant’s] version is that Mr Skosana
did not
see the firearm, and relies on the word of the [employee], who denies
ever making such utterances. This is a serious contention
and Mr
Skosana as a Senior Manager had the responsibility to investigate the
[employee’s] word to establish the truthfulness
of the
statement. It would be unreasonable to draw adverse inferences from
the allegation or the manner in which Mr Skosana claimed
to have
reacted to the information. The claims he makes in his affidavit that
the mention of a gun was a threat directed at Myburgh
because of
their strange relationship is farfetched in my view . The employee
made no threat in my reading of the affidavit. If
anything he sought
to be transferred away from Myburgh and surely that cannot be
construed as a threat. The [appellant] has failed
to substantiate
this claim in my view. ‘
[10]
As concerning the charge which related to the employee
“bringing the company’s name into disrepute” by
rendering
poor services to a client which resulted in a negative
perception of the standard of services which the appellant delivered,
the
arbitrator found that
the employee was
expected to visit the clients that he was in charge of once a month,
but there were clients whom he
had not visited for a
period exceeding six months. The arbitrator found the employee’s
conduct to be unacceptable because
he was aware of the service level
agreement which required him to host at least one meeting per month
with each client, yet he
failed to do for a period exceeding six
months.
[11]
The employee was also charged with
unauthorised absence from the work for failing to: (a) provide the
appellant with a sicknote
(as per company policy and procedures) for
his absence from work on 4, 5, and 11 to 15 July 2011; and (b)
follow the instructions
of Mr Skosana who directed him to provide a
sick note for the days on which he was absent from work. The
arbitrator found in relation
to the employee’s purported
failure to produce a sick note for his absence from work on 4 and 5
July 2011, that the appellant
had failed to establish this. However,
in relation to the employee’s alleged failure to provide Mr
Skosana with a sick note
for his absence from work on 11 to 15 July
2011, the arbitrator found that the employee had transgressed Mr
Skosana’s instruction
to provide him with a sick note. He,
nonetheless, found that the reason that the employee advanced for not
doing so was reasonable,
as he had informed Mr Skosana that he would
hand in the sick note on his return to work which he did, but neither
Mr Skosana nor
Mr Myburgh was prepared to accept it.
[12]
In relation to the charge that the employee
was grossly negligent for failing to process internal and external
company documents
handed to him by his subordinates relating to
leave, sick notes, pay queries, loan forms etc, the arbitrator found
that the appellant
failed to prove that these documents were handed
to the employee.
[13]
In relation to the employee’s
purported failure to communicate his daily operational and
administrative duties to Mr Skosana
whilst on sick leave, the
arbitrator found that this charge was unsustainable because Mr
Skosana was in constant contact with the
employee during his sick
leave to demand sick notes, and would have discussed the employee’s
operational and administrative
activities with him at the same time.
[14]
On the charge of failing to report to the
workplace on 20 July 2011 at 0900, as instructed by Mr Skosana, the
arbitrator found that
the employee’s failure to obey the
instruction constituted an act of misconduct. Although he found the
employee guilty of
this charge, he considered it to be not
sufficiently serious to warrant dismissal.
[15]
The penultimate charge related to the
employee’s purported failure to carry out standing instructions
by failing to: (a) communicate
his daily operational and
administrative duties to Mr Skosana while absent from work; and (b)
entering the company premises with
a gun. In relation to the latter,
the arbitrator confirmed his earlier finding that there was no
evidence to establish that the
employee had brought a gun onto the
company premises.
[16]
In relation to the last charge which
concerned the employee’s failure to contact Mr Skosana at 08h00
every day while on suspension,
the arbitrator found that the
appellant had confiscated the employee’s starter pack which he
had used to communicate with
the appellant, thereby leaving him
without the means to contact Mr Skosana.
[17]
On the question of the appropriateness
of sanction relating to the finding that the employee failed to visit
clients regularly,
the arbitrator held that the employee was not the
only one to transgress this rule. He held that because the “appellant
had
adopted progressive discipline in relation to other
transgressors, it should do the same in respect of the employee”.
The
arbitrator, accordingly, concluded that retrospective
reinstatement of the employee was the appropriate order and that a
written
warning for his transgression would suffice.
The
Judgment of the Labour Court
[18]
The Labour Court dismissed the review application. In doing so it
reasoned as follows:
‘
It
is apparent that the arbitrator dealt exhaustively with the evidence
before him and considered all the factors prior to coming
to the
conclusion that the employee’s dismissal was procedurally and
substantively unfair. Taking into consideration the
depth of his
treatment of the evidence, it cannot be said that he committed
misconduct in relation to his duties as an arbitrator,
a gross
irregularity in the conduct of the arbitration proceedings, or that
he exceeded his powers. As such, it is my view that
the decision of
the arbitrator, in this case, is not a decision that a reasonable
decision-maker could not reach. It is a reasonable
decision that is
justified by the evidence that was placed before him. There is,
therefore, no reason for this court to interfere
with the award.’
Test
for review
[19]
The test
for review is this:
“Is
the decision reached by the arbitrator one that a reasonable
decision-maker could not reach?”
[1]
To
maintain the distinction between review and appeal, an award of an
arbitrator will only be set aside if both the reasons
and the result
are unreasonable. In determining whether the result of an
arbitrator’s award is unreasonable, the Labour Court
must
broadly evaluate the merits of the dispute and consider whether, if
the arbitrator’s reasoning is found to be unreasonable,
the
result is, nevertheless, capable of justification for reasons other
than those given by the arbitrator. The result will be
unreasonable
if it is entirely disconnected with the evidence, unsupported by any
evidence and involves speculation by the arbitrator.
[2]
[20]
This
Court has eschewed a piecemeal approach to a review application by
the Labour Court. The proper approach is for the Labour
Court to
consider the totality of the evidence in deciding “whether the
decision made by the arbitrator is one that a reasonable
decision-maker could make.’
[3]
Analysis
[21]
The appellant raised numerous grounds of review against the award
which included
that the arbitrator: (a) improperly interrupted the
evidence presented by the appellant’s witnesses and in
particular that
of Ms. Fritz, by rushing their evidence and cutting
them short; (b) failed to apply his mind to, and misconstrued, the
evidence
led at the arbitration hearing; (c) was swayed by evidence
unrelated to the matter; (d) failed to appreciate or attach any
weight
to the inconsistencies, contradictions and wholly improbable
versions placed before him by the employee; and (e) in finding that
the dismissal was procedurally unfair, ignored certain evidence led
at the arbitration hearing.
[22]
In relation to the first ground of review, the appellant argues that
it is evident
from the conduct of the arbitrator towards Ms. Fritz
(the chairperson of the disciplinary inquiry) that the arbitrator was
biased
towards her as well as to other witnesses of the appellant. I
set out below the exchange between the arbitrator and Ms. Fritz which
the appellant contends illustrates that the arbitrator was biased
towards Ms. Fritz (and other witnesses of the appellant) who
testified on behalf of the employee:
‘
COMMISSIONER:
Ms. Lancaster, … Yes.
I
want you to speak to your witness as to answer questions
and…(intervenes) --- I am answering questions (indistinct)
appropriately.
--- I am sorry, but … (intervenes)
and
COMMISSIONER:
Let us answer questions that are put to you. If you do not know, say
you do not know and … (intervenes) ---
Which
is what I said …(intervenes) ---
Ma’am,
… (intervenes) --- I have not examined …(intervenes)
I
have no intention of entering into a dialogue with you. I am just
trying to reprimand you, that please your performance in this
hearing
is not appropriate. Continue. ‘
[23]
I consider the appellant’s complaint to be completely
unsustainable. Although
the use of the word “reprimand”
by the arbitrator is regrettable, it is clear when read, in context,
that the arbitrator
merely cautioned Ms. Fritz for not answering the
questions put to her directly and for talking back at him. There is
absolutely
no indication in this quoted passage nor in the record as
a whole which indicates that the arbitrator was biased toward Ms.
Fritz
or any other witnesses of the appellant. In fact, the record
shows that where the arbitrator believed that the appellant’s
witnesses (including Ms. Fritz) were being asked unfair questions, he
intervened to protect them. Accordingly, the arbitrator was
not
biased toward Ms. Fritz or any of the other witnesses of the
appellant. Nor did his conduct toward them create the perception
of
bias. The Labour Court, therefore, correctly dismissed the
appellant’s first ground of review on the basis that there
is
no indication on the record that there was undue interference by the
arbitrator in the arbitration proceedings or in the testimony
of Ms.
Fritz.
[24]
There is also no merit in the appellant’s
second ground of review. That the arbitrator inaccurately recorded
the evidence
of Ms. Fritz, in relation to the question of whether
there was a policy which did not permit employees to be represented
by officials
of the union, is not material to the outcome of the
arbitrator’s award which is a decision that a reasonable
decision-maker
would have come to on the totality of the evidence
before him or her. Nor for that matter is it material to the
outcome of
the award that the arbitrator may have erroneously
recorded, in the award, that Ms. Shirindi made the decision to
exclude Mr Hlatshwayo
from representing the employee at the
disciplinary hearing, when in fact it was Ms. Fritz who made that
decision. Absent the appellant
demonstrating that these errors in the
recordal of the evidence were material to the outcome of the award,
in the sense of rendering
the decision unreasonable, the Labour Court
was correct in attaching no weight to this ground of review.
[25]
Furthermore, and to the extent that this ground
of review related to the appellant’s contention that the
employee’s
dismissal was not procedurally unfair as found by
the arbitrator, a finding to that effect, by the Labour Court, would
have had
no impact on the overall outcome of the arbitration award
that the employee’s dismissal is substantively unfair. In other
words, even if the arbitrator was wrong on this aspect, it would have
made no difference to the outcome of the award which is one
that a
reasonable arbitrator would have arrived at on the evidence before
him or her.
[26]
Related to this ground of review, was the
further ground raised in the Labour Court, that in arriving at the
conclusion that the
dismissal of the employee was procedurally
unfair, the arbitrator ignored the evidence of the appellant’s
witnesses, including
Ms.Shirindi that:
(a)
the appellant allowed one of its
employees, namely Prince, outside representation as he had deceived
the appellant as to the true
identity of his representative;
(b)
the charge sheet stated that “in terms of
the Group Disciplinary Procedure you (the employee) are entitled to
be represented
or assisted by a Trade Union Representative (Shop
Steward) or by a co-worker of your choice;
(c)
The concession by the employee that he had read
the charge sheet;
(d)
Ms. Shirindi’s testimony that she
objected to Mr Hlatswayo representing the employee as he was not a
shop steward.
[27]
I reiterate, that even if the arbitrator, on
the evidence, arrived at a completely wrong conclusion on the
question of the procedural
fairness of the dismissal, this would make
no difference to the outcome of the arbitration award which is that
the employee’s
dismissal was substantively unfair.
[28]
The third ground of review advanced by the
appellant is that the arbitrator was swayed by evidence unrelated to
the matter at hand
that the employee’s former manager (Mr
Myburgh) referred to him as a “kaffir”. Although
the arbitrator
summarised the employee’s evidence at the
arbitration hearing which was that “charge 1 related to his
relationship
with one Myburgh who had previously called him a kaffir
and that the [appellant] had failed to address this issue….”,
there is no suggestion in the award that the arbitrator placed any
weight on this evidence in arriving at the decision that the
employee’s dismissal is substantively unfair. Even if the
arbitrator did so, it has no impact of the outcome of the award.
The
Labour Court was accordingly correct in dismissing this ground of
review out of hand.
[29]
There is also no substance in the contention that
the Labour Court erred in confirming the finding of the arbitrator
that there
was no evidence to support the charge that the employee
had told Mr Skosana (at a counselling session) that he had brought a
firearm
to the workplace which he intended to to use on Mr Myburgh.
Except for the allegation to this effect which was contained in an
affidavit made by Mr Skosana, which the employee had categorically
denied, the appellant led no evidence to support it. As held
by the
arbitrator, this is a serious allegation the truthfulness of which
the appellant bore the responsibility to investigate.
There was,
however, no evidence led of such an investigation having been carried
out. Nor, for that matter, did the appellant consider
the purported
transgression sufficiently serious to provide the employee with a
written warning.
[30]
A further ground of review related to the
arbitrator’s finding that the sanction of dismissal was too
harsh in light of the
fact that the appellant adopted progressive
discipline in respect of all other transgressors who failed to attend
regular meetings
with clients. The Labour Court found as follows on
this aspect:
‘
In this regard, the
arbitrator found that the employee failed to visit clients as
required in terms of his contract. However, the
arbitrator assessed
the appropriateness of the sanction and found dismissal to be too
harsh in light of the fact that the [appellant]
adopted progressive
discipline in respect to all transgressors. As a result, he concluded
that a written warning for the employee’s
transgression
would be appropriate. It is evident that the arbitrator considered
the evidence led by the appellant’s
witnesses.’
[31]
The appellant contends that the Labour Court
erred in finding that the arbitrator considered the evidence led by
the appellant’s
witnesses in concluding that the appellant
adopted progressive discipline in respect of other transgressors, as
the appellant had
already followed progressive discipline in relation
to the employee by counselling him. It is correct that the appellant
had counselled
the employee. On this aspect, the “Work
Performance Counselling Report”, dated 24 July 2011, records
that the employee
was counselled on time management, absenteeism, and
client service evaluation meetings. The work performance standard
required
was: plan and manage time effectively, reduce rate of
absenteeism, and meet all your customers on a monthly basis (with a
few exceptions
listed in the report). Under “Action to be
taken: By whom: By when”, Mr Skosana was required to carry out
a review
on a monthly basis. Lastly under “possible
consequences of continued lack of improvement” the employee was
to receive
a final written warning. Mr Skosana confirmed this under
cross-examination.
[32]
This notwithstanding, there is no evidence on
the record which indicates that after the employee was counselled on
his failure to
meet the appellant’s clients regularly, that he
continued to underperform and, as a consequence, of his “continued
lack of improvement”, he received a final written warning. When
pertinently asked, in cross-examination, whether the employee
received a final written warning for his “continued lack of
improvement”, Mr Joubert’s silence was telling. This
is
not surprising, given the testimony of the employee that he only
received one warning. The Labour Court was therefore correct
in
endorsing the decision of the arbitrator that the sanction of
dismissal was too harsh and that a final written warning for the
employee’s transgression was appropriate, albeit that Mr
Gantsho and Mr Joubert (for the appellant) testified that
the
failure to visit clients for a period exceeding six months
constituted serious misconduct.
[33]
The appellant’s grounds of review against the arbitration award
of the arbitrator
contradict the very essence of what the
Constitutional Court in
Sidumo
and this Court in
Gold
Fields
sought to ensure in a review against an arbitration award.
The grounds of review raised by the appellant in the review
application
seek, in this respect, to blur the lines between an
appeal and review. Not a single ground of review raised by the
appellant implicates
the reasonableness of the arbitrator’s
award. They seek instead, on a piecemeal basis, to challenge the
correctness of the
arbitrator’s award. This is impermissible.
Accordingly, the Labour Court’s dismissal of the appellant’s
review
application, on the basis that “
the
decision of the arbitrator…is not a decision that a reasonable
decision-maker could not reach” on the totality
of the
evidence, was justified.
[34]
For all these reasons, the appeal falls to be
dismissed.
Costs
[35]
I see no reason why costs should not follow the result.
Order
[36]
In the result, I make the following order:
1.
The appeal is dismissed with costs.
_____________________
F
Kathree-Setiloane AJA
DM Davis JA and JR Murphy
concur.
APPEARANCES
FOR THE APPELLANT :
Adv. MA Lennox
Instructed
by Evershed’s Sutherland
FOR THE RESPONDENTS:
Goldberg Attorneys
Instructed
by Goldberg Attorneys
[1]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008
(2) SA 24
(CC) para 110.
[2]
Herholdt
v Nedbank Ltd (COSATU as amicus curiae)
[2012] BLLR 1074
(SCA) paras 12 and 13.
[3]
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at paras 17 and 18.