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[2024] ZALCJHB 182
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South African Container Depots (Pty) Ltd t/a Bidvest SACD v Commission for Conciliation, Mediation and Arbitration and Others (JR 2987/2019) [2024] ZALCJHB 182 (3 May 2024)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JR 2987/2019
In
the matter between:
SOUTH AFRICAN
CONTAINER DEPOTS (PTY) LT
Applicant
t/a
BIDVEST SACD
and
THE
COMMISSION for CONCILIATION,
First Respondent
MEDIATION
AND ARBITRATION
BELLA
GOLDMAN
N.O
Second Respondent
SATAWU
obo NDWANDWE & OTHERS
Third Respondent
Heard
:
13
March 2024
Delivered
:
03 May 2024
Summary:
The commissioner’s award, finding the dismissal of four SATAWU
members substantively unfair, is reasonable and confirmed
–
commissioner’s award finding that the members be reinstated
retrospectively with backpay is an irregularity and unreasonable,
thus reviewed and set aside – All relevant parts of the record
to be availed to a reviewing Court.
REASONS FOR ORDER
SHABA, AJ
Introduction
[1]
This is a review application that was heard unopposed on 13 March
2024.
[2]
The Court reserved its order on 13 March 2024 and handed it down on
14
March 2024 instead. Notwithstanding the date of the order having
been stated as the former date, it has to be deemed to be on the
latter date.
[3]
The order relevant herein, is quoted and referred to in paragraph 20
hereunder.
[4]
Subsequent to the aforementioned order, the Applicant requested
reasons
for such order, which reasons follow, after outlining the
brief and relevant background.
Background
[5]
SATAWU’s (Second Respondent) members embarked on a protected
strike
on 1, 2 and 3 November 2017.
[6]
There were no picketing rules agreed to at the commencement of the
protected
strike on 1 and 2 November 2017. Such rules were agreed to
and became operational only on 3 November 2017.
[7]
Several employees of the South African Container Depots (Pty) Ltd t/a
Bidvest SACD (Applicant) were charged
inter alia
with the
common charge of unlawful blockage (blocking) of the main gate of the
Applicant’s premises during the protected
strike
aforementioned.
[8]
In the event that any of the Applicant’s employees was found
guilty
of only the common charge, such employee would be dismissed if
they had previously received a final warning as a result of
participation
in an unprotected go-slow in August 2017.
[9]
12 of the Applicant’s employees were charged with misconduct
relating
to the protected strike of 1 to 3 November 2017 and
subjected to an internal disciplinary hearing. These employees
included: Eric
Mostert; Alfred Mukheli; Lucas Malope; Thokozane
Ndwandwe; David Ndwandwe; Elias Ravele; Henry Moshato Simphiwe
Masinga, Paulos
Koboka, Dan Shabangu, Bheki Msimango and Nkosinathi
Cele.
[10]
Three of the twelve employees, Elias Ravele, Henry Moshato and
Simphiwe Masinga were found
guilty in the disciplinary hearing of the
common charge of blocking and dismissed as they already had a final
written warning for
embarking on an unprotected go-slow during August
2017. Employees who were found guilty of only blocking, were given a
final written
warning during the disciplinary hearing.
[11]
Four other employees, Eric Mostert, Lucas Malope, Thokozane Ndwandwe
and David Ndwandwe,
were found guilty of the common charge of
blocking and the charge of intimidation and were dismissed.
[12]
The remaining four other employees, the subject matter of these
review proceedings, were
subjected to a disciplinary hearing as
hereunder and dismissed.
12.1
Paulos Koboka (Koboka) was charged with blocking the main gate and
for gross insubordination
in that he disrespected an instruction of a
senior manager of the Applicant’s management. He was found
guilty in the disciplinary
hearing and dismissed.
12.2
Nkosinathi Cele (Cele) was charged with blocking the main gate,
intimidation and attempting to
block a fellow colleague from entering
the Applicant’s workplace. He was found guilty in the
disciplinary hearing and dismissed.
12.3
Bheki Msimango (Msimango) was charged with blocking the main gate,
intimidation and attempting
to block a fellow colleague from entering
the Applicant’s workplace. He was found guilty in the
disciplinary hearing and
dismissed.
12.4
Dan Shabangu (Shabangu) was charged with blocking the main gate,
intimidation and attempting
to block a fellow colleague from entering
the Applicant’s workplace. He was found guilty in the
disciplinary hearing and
dismissed.
[13]
The Third Respondent referred an unfair dismissal dispute to the
First Respondent (CCMA)
on behalf of its twelve members for
conciliation.
[14]
Failing conciliation, the unfair dismissal dispute was referred to
the CCMA for arbitration,
which commenced in July 2018 and concluded
in November 2019.
[15]
The Second Respondent issued an award dated 4 December 2019, which is
a subject matter
of these review proceedings.
[16]
The Second Respondent found the dismissal of Thokozane Ndwandwe,
David Ndwandwe, Eric Mostert
and Lucas Malope to be substantively
fair. Nothing turns on this finding as these persons do not form the
subject matter of these
review proceedings.
[17]
The Second Respondent further found that the dismissal of the four
employees (i.e. Koboka,
Cele, Msimango and Shabangu), who form the
subject matter of these review proceedings, was substantively unfair.
[18]
Although the Third Respondent filed its notice of the intention to
oppose this review application,
no answering affidavit to the
Applicant’s review application was filed in this Court up to 13
March 2024, when this matter
was heard unopposed.
[19]
Given the aforementioned unopposed phenomenon, nothing turns on the
change of both parties’
legal representatives before the
unopposed hearing of this review application on 13 March 2024.
[20]
It was against the above relevant and brief background that the
Court, after having reserved
its order on 13 March 2024, delivered
such order on 14 March 2024 with an errata date of the order being 13
March 2024, which is
quoted and referred to hereunder, and for which
reasons have since been requested by the Applicant:
‘
1.
The findings by commissioner Bella Goldman in the matter between
SATAWU obo Ndwandwe
Thokozane and 7 others v Bidvest SACD (Pty) Ltd
issued on 4 December 2019 under case no GAJB 3887-18 that the
dismissals of Dan
Shabangu, Nkosinathi Cele, Bheki Msimango and
Paulos Koboka are substantively unfair, are confirmed, but
commissioner’s orders
in respect of the retrospective
reinstatement and the payment of backpay from the dates of the
dismissal of these persons are reviewed
and set aside and substituted
with the following order:
“
Dan Shabangu,
Nkosinathi Cele, Bheki Msimango and Paulos Koboka are reinstated in
their former positions held with Bidvest SACD
(Pty) Ltd (“Bidvest”)
from the date of court order without backpay and must report for duty
with Bidvest within (7)
days from the date of this court order.”
2.
No order as to costs’
[21]
I now turn to the reasons for the aforementioned order as further
hereunder.
Reasons for upholding
the finding that the dismissal is substantively unfair
[22]
During the unopposed review proceedings of 13 March 2024, the
Applicant handed over a draft
order, which contained
inter alia
,
an alternative to paragraph 1 contained therein, with a minor typo of
the word “fair” which was amended by the Court
to
“unfair” contained therein, and which has since been made
the Court order, relevant herein.
[23]
With or without the Applicant’s draft order aforementioned, my
order remains the
same for reasons advanced further hereunder.
[24]
The
guidelines for the determination of substantive fairness by
Commissioners/arbitrators who deal with arbitrations in terms of
the
Labour Relations Act
[1]
(LRA)
are clearly outlined in the Code of Good Practice contained in
schedule 8 of the LRA. Which states that:
‘
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 with (sic) an appropriate sanction for the contravention of
the rule or standard.’
[25]
There is a rational connection between the evidence that was before
the Second Respondent
and her finding that the dismissal of Cele,
Shabangu, Msimango and Koboka was substantively unfair, as such
reasonable finding,
is anchored in the guidelines set out in the Code
of Good Practice aforementioned.
[26]
That the above is the case, is
inter alia
bore, by paragraph
62 of the Second Respondent’s award, wherein it is stated that:
‘
In order for
dismissal for misconduct to be substantively fair the respondent must
prove that: there was a rule; the rule was reasonable:
the rule was
known to the applicant or should have been known. The rule was broken
by the applicant and that dismissal was appropriate
sanction for the
breach of the rule.’
[27]
Based on the above, the Second Respondent did not misconceive the
nature of the enquiry
that was before her, as she dealt with the
determination of the substantive fairness of the four employees
aforementioned, within
the four corners of the substantive fairness
guidelines.
[28]
In line with these guidelines, the Second Respondent made a
reasonable finding
inter alia
that the Applicant’s had a
rule in place, that the employees that appeared before her were aware
of the rule or could have
reasonably been expected to have been aware
of the rule and that such fact was not in dispute.
[29]
The Second Respondent’s finding, relating to the need to attach
weight to the fact
that at the time of the commencement of the
protected strike, on 1 and 2 November 2017 there were no picketing
rules agreed to,
that the employees were aware of or ought to have
been aware of as such picketing rules were only in place on 3
November 2017,
is reasonable, in line with the guidelines in the Code
of Good Practice. Moreover, that the Second Respondent’s
further finding
in this regard is that there were no further acts of
misconduct after 3 November 2017 by the employees that were before
her.
[30]
The Second Respondent’s finding that all the employees that
appeared before her,
including the four that are the subject matter
of these review proceedings, were guilty of blocking as charged,
based on the video
footage that she had seen (and had described as
clear) and the total evidence before her, is one that any reasonable
decision maker
would have arrived at.
[31]
The Second Respondent’s finding that the dismissal of the
Applicant’s employees,
Simphiwe Masinga, Elias Ravele and Henry
Moshato for blocking only, was substantively fair because, they had a
prior final written
warning for partaking in a go-slow in August
2017, is also that of a reasonable decision maker.
[32]
The Second Respondent’s finding that the employees, Thokozane
Ndwandwe, David Ndwandwe,
Eric Mostert and Lucas Malope, were guilty
of intimidation in addition to blocking and that their dismissal was
substantively fair,
is equally that of a reasonable decision maker.
[33]
The Second Respondent’s findings, that the three employees
Shabangu, Msimango and
Cele contravened the Applicant’s rule
for blocking only and not the rule in respect of intimidation, is in
line with the
guidelines as it was based on the video footage that
she saw and the evidence before her, and that their dismissal is
substantively
unfair because, they ought not to have been dismissed
for intimidation, is one that a reasonable decision maker could have
reached.
[34]
As set out
supra
, the Second Respondent found that the
dismissal of Shabangu was substantively unfair. There is a rational
connection between the
above finding and the fact that Shabangu, who
was alleged to have intimidated Victor Mapongo, could not be found
guilty of any
such intimidation as the latter did not refer in his
evidence to being intimidated by the former in the arbitration
proceedings.
Curiously, such aspect was not even addressed in closing
arguments.
[35]
The Second Respondent’s further finding that, notwithstanding
the fact that arbitration
proceedings are a hearing
de novo
,
and that the new evidence that the Applicant adduced against Shabangu
at arbitration proceedings about intimidation was not the
reason why
such employee was dismissed, and could therefore not be taken into
account at such arbitration proceedings, is one that
a reasonable
decision maker would have reached as it is in line with section
188(1) of the LRA, which is dealt with infra
[36]
In arriving at the finding that the new evidence against Shabangu was
not the reasons why
the employee was dismissed, so much so that the
procedural and substantive fairness of such dismissal, could be
determined at the
arbitration stage, this finding is in line with
section 1881 of the LRA which states that:
‘
188.
Other unfair dismissals
(1)
A dismissal that is not automatically unfair, is unfair if the
employer fails to prove –
(a)
that the reason for dismissal is a fair reason –
(i)
related to the employee's conduct or capacity; or
(ii)
based on the employer's operational requirements; and
(b)
that the dismissal was effected in accordance with a fair procedure.’
[37]
In keeping with the principle that arbitration proceedings are
hearings
de novo,
the Second Respondent permitted the
Applicant to adduce new evidence about the alleged intimidation
despite same not being adduced
at the internal disciplinary hearing
against Shabangu. The Second Respondent’s decision, after
listening to the new evidence
was that such evidence “
would
be new charges
”, instead of stopping at having stated that
“
the Applicant was not, as stated above, dismissed for
intimidating those employees
”, such decision may well be an
error. However, such error does not vitiate the award if the full
conspectus of the total
evidence, that was before her, is taken into
account.
[38]
In
NUM
and another v Samancor Ltd (Tubatse Ferrochrome) and others
[2]
,
it was held that an error by an arbitrator, is not in itself, a
proper basis for reconsidering an award.
[39]
In
Francis
Baard Municipality v Rex and others
[3]
,
It was held that:
‘
[24]
The grounds of review are,
inter alia
, that the factual
findings of the Commissioner did not correspond with the evidence and
documents placed before the Commissioner,
and that he did not apply
his mind properly and rationally to the fact and the law.
[25]
The court should ideally see all the material that was before the
decision-maker so that it can
fully and fairly deal with the grounds
of review especially when the grounds of review are dependant [sic]
on the factual findings
of the Commissioner. It goes without saying
that there can, in some cases, be no full and fair review if all the
evidence is not
before the court.’
[40]
Shabangu’s disciplinary notice (or charge sheet) is not
attached to the record to
enable this Court on review to determine
what precisely Shabangu was charged with. Further, the handwritten
notes of the Second
Respondent, which are not that much legible and
helpful, have not been transcribed. Needless to say that this Court
is not privy
to the video footage, that the Second Respondent saw and
relied on as part of the evidence for her findings.
[41]
In
Liwambano
v Department of Land Affairs and others
[4]
,
the Labour Court had earlier held that:
‘
In the case of
JDG
Trading (Pty) Ltd t/a Russells v Whitcher NO & others
, the
Labour Appeal Court made it clear that an applicant who seeks relief
in a review on the basis of a defective record runs the
risk that it
will be unsuccessful on that ground alone. This must be based on the
simple principle that “evidence at the
heart of the attack on
the decision of a Commissioner must be ‘properly available’
to the reviewing Court.’ [Footnote
omitted]
[42]
The benefit
of a complete record is key to review proceedings as was further held
in
EBS
Security Admin Pty (Ltd) v Commission for Conciliation, Mediation and
Arbitration and Others
[5]
wherein
it was held
inter
alia
that:
‘
In sum, the
Applicant’s review application required a complete record. In
the absence of a complete record, a determination
on whether a gross
irregularity (that was material to the outcome) was committed and a
finding on whether the arbitrator produced
an unreasonable outcome
cannot be made.’
[43]
In
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and others
[6]
,
it
was held that:
‘
[18]
In a review conducted under section 145(2)(a)(c)(ii) of the LRA, the
reviewing court is not required
to take into account every factor
individually, consider how the arbitrator treated and dealt with each
of those factors and then
determine whether a failure by the
arbitrator to deal with one or some of the factors amounts to
process-related irregularity sufficient
to set aside the award. This
piecemeal approach of dealing with the arbitrator’s award is
improper as the reviewing court
must necessarily consider the
totality of the evidence and then decide whether the decision made by
the arbitrator is one that
a reasonable decision-maker could make.
[19]
To do it differently or to evaluate every factor individually and
independently is to defeat
the very requirement set out in section
138 of the LRA which requires the arbitrator to deal with the
substantial merits of the
dispute between the parties with the
minimum of legal formalities and do so expeditiously and fairly. This
is also confirmed in
the decision of
CUSA v Tao Ying Metal
Industries
.
[20]
An application of the piecemeal approach would mean that an award is
open to be set aside where
an arbitrator (i) fails to mention a
material fact in his or her award; or (ii) fails to deal in his/her
award in some way with
an issue which has some material bearing on
the issue in dispute; and/or (iii) commits an error in respect of the
evaluation or
considerations of facts presented at the arbitration.
The questions to ask are these: (i) In terms of his or her duty to
deal with
the matter with the minimum of legal formalities, did the
process that the arbitrator employed give the parties a full
opportunity
to have their say in respect of the dispute? (ii) Did the
arbitrator identify the dispute he or she was required to arbitrate?
(This may in certain cases only become clear after both parties have
led their evidence) (iii) Did the arbitrator understand the
nature of
the dispute he or she was required to arbitrate? (iv) Did he or she
deal with the substantial merits of the dispute?
(v) Is the
arbitrator’s decision one that another decision-maker could
reasonably have arrived at based on the evidence?’
[Footnotes
omitted]
[44]
In
Quest
Flexible Staffing Solutions (Pty) Ltd (a division of Adcorp
Fulfilment Services (Pty) Ltd) v Legobate
[7]
,
it was held
inter
alia
that:
‘
In
Gold Fields
,
this Court rejected the piecemeal or fragmented approach to reviews,
where each factor that the Commissioner failed to consider
is
analysed individually and independently, for principally two reasons.
The first is that it “assumes the form of an appeal”
and
not a review, and the second is that it is mandatory for the
reviewing Court to consider the totality of the evidence and then
decide whether the decision made by the arbitrator is one that a
reasonable decision-maker could make. To evaluate every factor
individually and independently, it observed, is to defeat the
requirements in section 138 of the LRA in terms of which the
arbitrator
is required to deal with the substantial merits of the
dispute between the parties with the minimum of legal formalities,
albeit
expeditiously and fairly. On this approach, therefore, the
failure of a Commissioner “to mention a material fact in his or
her award”, or “to deal in his/her award in some way with
an issue which has some material bearing on the issue in
dispute”,
or “commits an error in respect of the evaluation or
consideration of facts presented at the arbitration”
would not,
in itself, render the award reviewable.’
[45]
The Second Respondent’s finding that Shabangu, Msimango and
Cele, could not have
been found guilty of intimidation as the
evidence in support of such charge was based on the videotape that
she saw and mainly
on the evidence of Victor Mapongo which she found
to be incredible and for the reasons that she advanced, is that of a
reasonable
decision maker.
[46]
The Second Respondent found that, based on the video, it was in fact
Victor Mapongo who
intimidated Shabangu and Cele and that she did not
find Victor Mapongo’s evidence credible enough to prove
intimidation against
Msimango. This finding ought to be regarded as
reasonable in the absence of the video footage which this Court was
not privy to
on 13 March 2024.
[47]
Where this Court cannot make a decision based on the same missing and
relevant parts of
the record relied on, it may ordinarily strike the
matter off the roll or direct that the record be reconstructed. I did
not choose
either of these options on the hearing date as I held the
view that there are some parts of the record that enabled me to
arrive
at the order I made. The four employee’s dismissal dates
back to 2017 and it can only be in the interest of all parties that
this matter be speedily resolved.
[48]
The Second Respondent had the opportunity in the arbitration
proceedings to observe the
demeanour of the witnesses and evaluate
their evidence against the video footage that she saw, especially,
that of Victor Mapongo,
on whose evidence the Applicant heavily
relied to prove the charges of intimidation against Shabangu, Cele
and Msimango. Her credibility
finding against Victor Mapongo was
based on the video footage that she had seen and it cannot be said
that her decision was that
of an unreasonable decision-maker in
concluding that the three employees did not contravene the
Applicant’s workplace rule
on intimidation.
[49]
In
Scopeful
21 (Pty) Ltd t/a Maluti bus Services v SATAWU obo Mosia and Others
[8]
(
Scopeful
21
)
,
it
was held
inter
alia
that:
‘
The arbitrator,
who was steeped in the atmosphere of hearing the witnesses in a
hearing de novo, made a credibility finding, having
observed and
listened to the witnesses. A review court should be very cautious
before it interferes with a finding of that nature.
Paramount in such
an evaluation is the reminder that a review court is not a court of
appeal. However, the distinction between
a review and an appeal may
have blurred over the years in which the Labour Court and Labour
Appeal Court have grappled over and
developed the test on review.’
[50]
Further, in
finding that the three employees did not contravene the Applicant’s
workplace rule in terms of clause 7(a) of
the Code of Good Practice
with regard to the charge of intimidation, the Second Respondent’s
decision was one of a reasonable
decision maker especially as it had
been guided by the credibility finding that she had made in the
circumstances.
Scopeful
21
cautions review courts from readily interfering with a credibility
assessment as the court did not have the benefit of sitting
in the
arbitration and observing the witnesses, hearing their evidence and
how they came across.
[9]
[51]
The Second Respondent’s finding that Shabangu, Msimango and
Cele have to be treated
the same way as all other employees who were
found guilty of blocking only and did not have a final written
warning relating to
any blocking before, is not only in line with
Clause 7(b)(iii) of the Code of Good Practice on consistency but, a
finding that
could equally be made by any reasonable decision maker.
[52]
The Court is not persuaded by the Applicant’s argument that
Shabangu, Cele and Msimango,
based on the Second Respondent’s
findings including the credibility finding against Victor Mapongo,
contravened the Applicant’s
workplace rule of intimidation.
[53]
To the extent that the Second Respondent may have committed some
errors in not having considered
certain factual evidence, such errors
are equally not sufficient, in my view, to vitiate the award and
render the Second Respondent’s
findings that the dismissal of
the three employees was substantively unfair and unreasonable as
borne by the authorities referred
to hereunder.
[54]
In
Department
of Health (Western Cape) v DENOSA obo Cloete and others
[10]
it
was
inter
alia
held that:
‘
It bears emphasis
that “errors of fact by an arbitrator, particularly in respect
of facts that he or she is empowered to determine
(such as findings
on the probabilities), will not usually give rise to a valid ground
of review”; and “the fact that
an arbitrator commits a
process related irregularity is not in itself a sufficient ground for
interference by the reviewing court.”’
[55]
In
Ethekwini
Municipality v Hadebe and others
[11]
(
Ethekwini
Municipality
)
it was held
inter
alia
that:
‘
After an initial
period of uncertainty as a result of the emergence of the
"process-related irregularities" jurisprudence,
the proper
application of the test was neatly summarised by the Supreme Court of
Appeal in the path-finding judgment of
Herholdt v Nedbank
("
Herholdt
") as follows:
"[A] review of a
CCMA award is permissible if the defect in the proceedings falls
within one of the grounds is s 145(2)(a)
of the LRA. For a defect in
the conduct of the proceedings to amount to a gross irregularity as
contemplated by s 145(2) (a)(ii),
the Arbitrator must have
misconceived the nature of the inquiry or arrived at an unreasonable
result. A result will only be unreasonable
if it is one that a
reasonable Arbitrator could not reach on all the material that was
before the Arbitrator. Material errors of
fact, as well as the weight
and relevance to be attached to particular facts, are not in and of
themselves sufficient for an award
to be set aside, but are only of
any consequence if their effect is to render the outcome
unreasonable.”’
[56]
With regard to the Second Respondent’s finding that Koboka,
although having been
found guilty of both blocking the entrance and
gross insubordination or gross disrespect as he did not obey Luvuyo’s
instruction
to allow the trucks to enter the Applicant’s
premises and refused to move, I find that her reasoning in finding
that such
employee’s dismissal was substantively unfair to be
reasonable and in line with Clause 7(b) of the Code of Good Practice
as she qualified such finding by stating
inter alia
that “
This
was a strike situation and all the Applicant were refusing to allow
the trucks in and should have been charged with gross
insubordination/gross disrespect. None of them were acting
respectfully towards management
”.
[57]
In arriving at the finding that dismissal was too harsh a sanction
for Koboka because he
had 30 years of service with the Applicant that
had not been taken into account at the internal disciplinary hearing,
I find the
Second Respondent’s finding in this regard, not to
be any substitution of the Applicant’s sanction for Koboka but,
to be a reasonable determination that such Respondent made in line
with Clause 7(iv) of the Code of Good Practice as, commissioners
are
empowered in terms of this Clause, to pronounce themselves on the
appropriateness of dismissal for misconduct, under the circumstances.
[58]
In
Ethekwini
Municipality
,
it was further held that:
[12]
‘
With regard to the
practical approach to be adopted by Commissioners and Arbitrators in
considering the sanction of dismissal, the
Court laid down the
following guidelines:
"In approaching the
dismissal dispute impartially a Commissioner will take into account
the totality of circumstances. He or
she will necessarily take into
account the importance of the rule that had been breached. The
Commissioner must of course consider
the reason the employer imposed
the sanction of dismissal, as he or she must take into account the
basis of the employee's challenge
to the dismissal. There are other
factors that will require consideration. For example, the harm caused
by the employee's conduct,
whether additional training and
instruction may result in the employee not repeating the misconduct,
the effect of dismissal on the employee and his or her
long-service record.
This is not an exhaustive list… To
sum up. In terms of the LRA, a Commissioner has to determine whether
a dismissal is fair
or not. A Commissioner is not given the power to
consider afresh what he or she would do, but simply to decide whether
what the
employer did was fair. In arriving at a decision a
Commissioner is not required to defer to the decision of the
employer. What
is required is that he or she must consider all
relevant circumstances." [Own emphasis]
[59]
Based on all the reasons above, the Court is persuaded by the
Applicant that in arriving
at the aforementioned finding, the Second
Respondent’s decision was irrational, that she committed gross
irregularities and
misconduct and that she exceeded her powers. The
Second Respondent arrived at a reasonable finding that the dismissal
of Shabangu,
Cele, Msimango and Koboka was substantively unfair under
the circumstances.
[60]
In the premise and for all the above reasons, this Court is not
persuaded that the Second
Respondent committed an irregularity that
vitiates her finding that the dismissal of Shabangu, Msimango, Cele
and Koboka was substantively
unfair and that her finding in this
regard, is unreasonable, to warrant interference, under the
circumstances.
[61]
I have dealt with some of the authorities on the test for review of
arbitration awards
above, which informs my reasons for my order
herein not to review the Second Respondent’s finding that the
dismissal of the
aforementioned four employees, was substantively
unfair. I will deal further with other authorities on the review
test, including
those about irregularities, under the next heading
hereafter.
Reasons
for upholding the finding of reinstatement but not with retrospective
backpay
[62]
In
Ethekwini
Municipality,
on
what the test for review, the Labour Appeal Court (LAC) held
that:
[13]
‘
The test for
review of arbitration awards finds jurisprudential expression in a
number of judgments, in particular the seminal judgment
of the
Constitutional Court in
Sidumo and another v Rustenburg Platinum
Mines and others
(Sidumo) in which, the court held that section
145 is now suffused by the constitutional standard of reasonableness.
The question
therefore is whether the decision reached by the
Commissioner is one that a reasonable decision-maker could not reach.
Applying
this test, the Court explained, will give effect not only to
the constitutional right to fair labour practices, but also to the
right to administrative action which is lawful, reasonable and
procedurally fair.’
[63]
Based on
the above authorities, there is a plethora of authorities on the test
for the review of arbitration awards by commissioners
in terms of the
LRA, which must be read together in order to review an award and to
determine whether the decision reached is one
that a reasonable
decision maker could have reached and whether such decision-maker
committed any irregularity.
[14]
[64]
This Court’s reasons for confirming the Second Respondent’s
finding that the
dismissal of Shabangu, Msimango and Koboka was
substantively unfair and reasonable is based on the aforementioned
jurisprudence
for the test for the review of arbitration awards in
terms of the LRA by commissioners like the Second Respondent.
[65]
It is further for the abovementioned reasons and authorities that the
Court is not persuaded
by the Applicant’s contention that the
Second Respondent’s finding, that the four aforementioned
employees be reinstated
with backpay, is an irregularity and not a
finding which a reasonable decision-maker could have arrived at, as
explained further
hereunder.
[66]
The Second Respondent has ordered the reinstatement of Shabangu,
Msimango, Cele and Koboka.
I find that the reasons for the Second
Respondent’s reinstatement of these employees because
inter
alia
, that they did not find alternative employment and that they
sought reinstatement at the time of the arbitration proceedings
relevant
herein, to be that which any reasonable decision maker would
make under the circumstances. I further find that there is no
irregularity
with such decision of reinstatement that vitiates the
award.
[67]
I find no
trace of any misconduct, as contemplated in section 145(2)(a)(i) of
the LRA, committed by the Second Respondent in reinstating
the
employees Shabangu, Cele, Msimango and Koboka as misconduct by
commissioners/arbitrators, has since been qualified in
inter
alia
County
Fair Foods (Pty) Ltd v Theron NO & others
[15]
,
wherein
it was held that:
‘
For there to be
misconduct, it has been held that there must be some ‘wrongful
or improper conduct’ on the part of the
decision maker, in this
instance the Commissioner. (See Dickinson and Brown v Fisher’s
Executors
1915 AD 166
at 176.) Misconduct has also been described as
requiring some ‘personal turpitude’ on the part of the
decision maker.
(See
Reunert Industries (Pty) Ltd t/a Reutech
Defence Industries v Naicker and others
(1997) 18 ILJ 1393 (LC)
at 1395H–I.) The basic standards of proper conduct for an
arbitrator are to be found in the principles
of natural justice, and
in particular the obligation to afford the parties a fair and
unbiased hearing. (See Baxter Administrative
Law at 536.) These
principles have been reinforced by the constitutional imperatives
regarding fair administrative action. (See
Carephone (Pty) Ltd v
Marcus NO (1998) 19 ILJ 1425 (LAC) at 1431I–1432A.) The core
requirements of natural justice are the
need to hear both sides (audi
alteram partem) and the impartiality of the decision maker (
nemo
iudex in sua causa
). (See Baxter at 536.)’
[68]
It is well within the Second Respondent’s powers, in terms of
sections 145 and 193(1)
of the LRA, to have reinstated the four
employees.
[69]
The Court is not persuaded by the Applicant’s submission that
it was incompetent
for the Second Respondent to reinstate these
employees based on section 193(2)(a) to (d) of the LRA, as it will be
further explained
hereunder.
[70]
The three
employees, Shabangu, Msimango and Cele, have not been found guilty of
serious misconduct contemplated in the Code of Good
Practice
[16]
and
neither is there any trace, at least, in the arbitration proceedings,
that any such evidence on the irretrievable breakdown
of the
employment relationship of trust between these employees and
Applicant was tendered.
[71]
The above goes for Koboka, save for the fact that he was in addition
to being charged for
blocking, also found to have been insubordinate
and/or disrespectful. The Second Respondent’s finding that
Koboka committed
insubordination and/or disrespect in relation to a
single instruction, in the context of a strike for that matter, and
under circumstances
where the rest of the employees were not charged
for any such insubordination and/or disrespect, is that of a
reasonable decision-maker.
I am, accordingly, not even persuaded that
such a nature of insubordination and/or disrespect was gross.
[72]
The Court is not persuaded by the Applicant’s submissions and
the authority referred
to in the Second Respondent’s decision
to reinstate the Applicants is not reasonable because she did not
consider the “non-reinstatable
conditions” in respect of
any of the employees. I find the contrary to be the case instead.
[73]
The above notwithstanding, I am however persuaded by the Applicant’s
submissions
that a court or arbitrator has a discretion in
determining the extent of backpay and that backpay is a consequence
of retrospective
reinstatement. I further agree with the Applicant
that these four employees, are partly to blame for circumstances that
led to
their dismissal and accordingly, not entitled to full
retrospective reinstatement with backpay.
[74]
I further agree with the Applicant’s submissions that courts
and arbitrators must
take a number of factors into consideration when
determining the period for which reinstatement should be made
(because the LRA
is silent on this aspect). I am persuaded to agree
with these factors as listed in the Applicant’s submissions.
[75]
This Court is not persuaded however that, in having reinstated the
employees, the Second
Respondent had misdirected herself in respect
of all the relevant facts and principles and that she has not
exercised her discretion
judicially as submitted in the applicant’s
heads of argument. I have already found that the Second Respondent’s
decision
to reinstate these employees is that of a reasonable
decision-maker under the circumstances and that she exercised her
discretion
judicially in line with section 193 (1)(a) to (c) in
reinstating these four employees.
[76]
I have since made an order relevant herein dated 13 (read 14 March
2024) that the reinstatement
of these four employees must only be
with effect from the date of such order, without backpay and thereby
agree with the Applicant
that the retrospective reinstatement of
these four employees with backpay by the Second Respondent is
unreasonable and an irregularity,
as submitted in Applicant’s
heads, with respect to all four employees.
[77]
The order that these four applicants be reinstated from the date of
the order of 14 March
2024 and not retrospectively, with backpay, is
reason enough to concur with the Applicant’s submissions that
the Second Respondent
committed an irregularity and arrived at an
unreasonable conclusion in finding that they be reinstated
retrospectively with backpay.
[78]
I further agree with the Applicant that the calculations of
retrospective reinstatement
of Cele, Msimango and Koboka with backpay
are incorrect as submitted by the Applicant. In any event, nothing
turns on any of these
calculations, including those of Shabangu, as I
have already found that all four employees are not entitled to
retrospective reinstatement
with backpay, under the circumstances.
[79]
For all the above reasons, the Second Respondent’s finding that
Koboka, Shabangu,
Msimango and Cele must be retrospectively
reinstated with back pay is reviewed and set aside as per this
Court’s order of
14 March 2024 on the basis that such findings
are unreasonable and irregular.
[80]
The Second Respondent’s finding referred to in paragraph 79
above, has since been
substituted with the order that the four
employees are reinstated only from the date of the Court’s
order being 14 March
2024, issued and stamped by the Registrar on 20
March 2024 and that they must report for duty at the Applicant’s
workplace,
within seven days from the date of such Court order, being
14 March 2024.
Costs
[81]
There is no cost order as the matter served before me unanswered and
unopposed on 13 March
2024. The Applicant did not pursue any such
costs either.
Conclusion
[82]
In the premises, and after considering the Applicant’s papers
and submissions, it
is for aforesaid reasons that the order dated 14
March 2024 was issued.
SM Shaba
Acting
Judge of the Labour Court of South Africa
[1]
Act
66 of 1995, as amended.
[2]
(2011) 11 BLLR 1041
(SCA) at paras 9 – 12.
[3]
[2016]
ZALAC 33
;
[2016]
10 BLLR 1009
(LAC) at paras 24 – 25.
[4]
[2012] ZALCJHB 14;
[2012] 6 BLLR 571
(LC)
at
para 30.
[5]
(JR1314/13) [2015] ZALCJHB 347 (6 October 2015)
at
para 19.
[6]
[2013]
ZALAC 28
; [
2014
]
[2007] ZALC 66
;
1
BLLR 20
(LAC)
(
Gold
Fields
)
at
paras
18 – 20.
[7]
[2014]
ZALAC 55
;
(2015)
2 BLLR 105
(LAC) at
para
16.
[8]
[2005]
ZALC 61
; [
2005
]
11 BLLR 1138
(LC) at
para
14.
[9]
See:
Air
Liquide (Pty) Ltd v Nkgoeng NNO and others
[2022] 7 BLLR 636
(LAC) at para 15.
[10]
[2016]
ZALCCT 8;
(2016)
9 BLLR 923
(LC) at
para
33.
[11]
[2016]
ZALAC 14
;
(2016)
8 BLLR 745
LAC
at
para 23.
[12]
Ethekwini
Municipality
at
para 21.
[13]
Ibid
at para 20.
[14]
See:
Sidumo
and another v Rustenburg Platinum Mines Ltd and others
[2007]
ZACC 22
;
[2007]
12 BLLR 1097
(CC) at para 110
;
Super
Group Autoparts t/a AutoZone v Hlongwane NO and others
[2009]
ZALCJHB 68;
[2010]
4 BLLR 458
(LC) at 461 8E
;
Manana
v Department of Labour and others
[2010]
ZALAC 26
;
[2010]
6 BLLR 664
at 668 20F
;
NUM and
another v Samancor Ltd (Tubatse Ferrochrome) and others
supra
,
Afrox
Healthcare Ltd v Commission for Conciliation Mediation and
Arbitration and others
[2012]
ZALAC 2
;
[2012] 7 BLLR 649
(LAC) at 657 21D-I
;
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as “amicus
curiae”)
[2013]
ZASCA 97
;
[2013] 11 BLLR 1074
(SCA) at 1084 24C-D
;
Goldfields
supra
;
Derivco
(Pty) Ltd v Commission for Conciliation, Mediation and Arbitration
[2014]
ZALCJHB 257;
[2014] 10 BLLR 1000
(LC) at 1007 37B;
Shoprite
Checkers v CCMA
[2015]
10 BLLR 1052
(LC) at 1056E-H 9-10
;
Mbatha
v Safety and Security Sectoral Bargaining Council
JR372/13
[2015] ZALCJHB 332 (30 September 2015) at para 25
;
Head
of the Department of Education v Mofokeng and others
[2014] ZALAC 50
;
[2015] 1 BLLR 50
(LAC) at paras 60 – 61;
Kock
v Commission for Conciliation, Mediation and Arbitration and Others
(2019) 40 ILJ 1625 (LC) at para 27; and
Ethekwini
Municipality supra
.
[15]
(2000) 21 ILJ 2649 (LC)
at
para 7. See also:
BAUR
Research CC v Commission for Conciliation, Mediation and Arbitration
and others
[2013] ZALCJHB 338; (2014) 35 ILJ 1528 (LC
)
at para 35.
[16]
Clause 4 and 5 of the Code of Good Practice in Schedule 8 of the
LRA.