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[2024] ZALCJHB 196
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Motshwaiwa v Pioneer Foods (Pty) Ltd ta Sasko Qwaqwa and Others (JR1832/20) [2024] ZALCJHB 196 (7 May 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
No: JR 1832/20
In
the matter between:
TSHEPO
MOTSHWAIWA
Applicant
and
PIONEER
FOODS (PTY) LTD T/A SASKO QWAQWA First
Respondent
CCMA
Second Respondent
MTHUMZI
NDULAMA
N.O
Third Respondent
Heard:
23 April 2024
Delivered:
07 May 2024
JUDGMENT
NTSOANE,
AJ
Introduction
[1]
This is an
application for review in terms of section 145 and/or section
158(1)(g) of the Labour Relations Act
[1]
(LRA) brought on 10 December 2020. In this application, the Applicant
seeks to review and set aside the arbitration award issued
on 2
November 2020, which was handed down by the Third Respondent
(Commissioner) under the auspices of the Second Respondent, under
case number FSBF 1752/20.
[2]
In terms of the said award, the Commissioner found the dismissal of
the Applicant to be both procedurally and substantively
fair and
accordingly dismissed the Applicant’s claim.
[3]
At arbitration level, the simple nub of the dispute that had to be
determined by the Commissioner was whether the dismissal
sanction
endured by the Applicant, occasioned by reporting for duty under the
influence of alcohol justified his dismissal, both
procedurally and
substantively.
Synopsis
of the case
[4]
The Applicant was employed by the First Respondent on 1 October 2018
and at the time of his dismissal, he occupied a position
of a Depot
Manager at a salary of R42,358.33 per month. The Third Respondent, on
the other hand, as its name symbolizes, is in
the retail business of
a bakery.
[5]
The First Respondent has an alcohol testing policy whereby every
employee entering the company premises must be subjected
to a
mandatory breathalyser test each time without exception. Those
employees who test positive are not permitted onto the company
premises instead are sent home for the day and will be subjected to
disciplinary action in accordance with the company’s
disciplinary code. Evidence was led through the First Respondent’s
witness Lebohang Letsoho that the Applicant was aware
of this policy
and this pertinent piece of evidence was not challenged. In any case,
the Applicant occupied a position of a senior
role and he was
reasonably expected to be aware of the policy. It appears that on 2
March 2020, the Applicant reported for work
however, he did not enter
through the main gate but rather via the dispatch gate. The First
Respondent has only one breathalysing
device which is located at the
main gate and there is none at the dispatch gate. This meant that the
Applicant was not subjected
to the breathalysing test when he entered
on 2 March 2020.
[6]
This incident came to the attention of the shop stewards Mr Pule
(Pule) and Mr Tapore Johnny Motaung (Motaung) that the
Applicant had
entered the premises through the dispatch gate and that it was
suspected that he was under the influence of alcohol.
It was at that
stage that Motaung contacted Lucy Mofokeng (Mofokeng) of the
company’s security to enquire if the Applicant
had been
subjected to the breathalyser test, and on discovering that, in fact,
the Applicant had not been breathalysed, Motaung
requested the
Applicant to immediately attend to the main gate so that a
breathalyser could be administered on him. The Applicant
test came
out as 0,085% positive results to the test and the second test which
was done twenty minutes later, also reflected a
positive result. The
Applicant was immediately sent home.
[7]
This incident was reported to company managers Mr Johan Booysen
(Booysen) and Mr Nelson Dlamini (Dlamini) as well as the
Safety
Health and Environment Specialist, Mr Weyland Niemach (Niemach). The
Applicant had, at the time of the incident, held a
final written
warning which was issued to him on 5 August 2019 valid for 12 months
for “
Not taking the breathalyser test each time when
entering the company premises at numerous instances as per his own
admittance
”.
[8]
The Applicant was ultimately charged and subjected to a disciplinary
hearing. The following charges were proffered against
him:
‘
1. Reporting
for duty or being under the influence of alcohol when reporting for
duty and testing positive for alcohol on
the 2
nd
March
2020
2. Not entering the
breathalyser test upon entering the company premises on the 2
nd
March 2020 after being progressively disciplined on the issue.’
[9]
Dlamini investigated the matter and also represented the First
Respondent at the disciplinary hearing whilst Niemach served
as the
chairperson of the disciplinary hearing. Following the ventilation of
the charges, the chairperson imposed the sanction
of a dismissal. The
Applicant’s final written warning also played a major role in
arriving at the said dismissal decision.
[10]
The Applicant simply argued that he did nothing wrong.
[11]
Aggrieved by the dismissal imposed on him, the Applicant then
referred an unfair dismissal dispute to the Second Respondent
claiming the dismissal to be both substantively and procedurally
unfair. At the arbitration proceedings and in support of its case,
the First Respondent called numerous witnesses, five to be precise,
including the chairperson of the disciplinary hearing, to support
its
own case. The Applicant on the other hand testified for himself and
did not call any witness to corroborate his version.
[12]
The Applicant averred that his dismissal was procedurally unfair as
the chairperson, who was his junior, was also an
investigator in his
case. He also submitted that the company policy prohibited a junior
employee from chairing a disciplinary hearing
against a senior. The
Applicant also contended that he observed the chairperson travelling
to the hearing, in the same vehicle
with the initiator, therefore his
impartiality was compromised. The Applicant claimed that he had taken
headache medication hence
he tested positive and that the employer
did not provide him with any reason for his dismissal. He also argued
inconsistency as
this was his first offence and that the company had
failed to offer him the necessary support.
Determination
and grounds for review
[13]
Section
145(1) of the LRA deals with the review of arbitration awards and
prescribes that:
‘
Any
party to a dispute who alleges a defect in any arbitration
proceedings under the auspices of the Commission may apply to the
Labour Court for an order setting aside the arbitration award –
(a) within six
weeks of the date that the award was served on the applicant…’
Subsection
(2) states that:
‘
A defect referred
to in subsection (1), 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
.’
Section
158 (1)(g) states that:
‘
The
Labour Court may –
(g)
subject to section 145, review the performance or purported
performance of any function provided for in this Act on any
grounds
that are permissible in law.’
[14]
In
assessing whether an arbitration award may be reviewed, it is
important to note the
precedent
that
set out the test herein. In the case of
Sidumo
and Another v Rustenburg Platinum Mines Ltd and others
[2]
,
the
Constitutional Court made the following determination on review
applications and these were the key issues they had to determine
in
making a finding on the review applications:
‘
[1]
In deciding dismissal disputes in terms of the compulsory arbitration
provisions of the Labour Relations Act 66 of 1995
(LRA),
commissioners acting under the auspices of the Commission for
Conciliation, Mediation and Arbitration (CCMA), should approach
a
dismissal with “a measure of deference” because “it
is primarily the function of the employer” to decide
on a
proper sanction. In deciding whether a dismissal is fair a
commissioner need not be persuaded that dismissal is the only fair
sanction - it is sufficient that the employer establishes that it is
a fair sanction.
[2]
Compulsory statutory arbitration in terms of the LRA undertaken by
the second respondent, the CCMA, constitutes “administrative
action” as defined in s 1 of the Promotion of Administrative
Justice Act 3 of 2000 (PAJA) and is therefore subject to the
standard
of review set under that Act rather than that provided for in the LRA
- the review criterion is whether the decision is
rationally
connected with the information before the commissioner and the
reasons for it.’
[15]
In making its determination, the Constitutional Court found the
following:
‘
[75]
It is a practical reality that in the first place it is the employer
who hires and fires. The act of dismissal
forms the jurisdictional
basis for a commissioner, in the event of an unresolved dismissal
dispute, to conduct an arbitration in
terms of the LRA. The
commissioner determines whether the dismissal is fair. There are
therefore no competing 'discretions'. Employer
and commissioner each
play a different part. The CCMA correctly submitted that the decision
to dismiss belongs to the employer
but the determination of its
fairness does not. Ultimately, the commissioner's sense of fairness
is what must prevail and not the
employer's view. An impartial third
party determination on whether or not a dismissal was fair is likely
to promote labour peace.
[158]
In my view, then, the key to the present case is to interpret and
apply section 145 in a manner that is compatible
with the values of
reasonableness and fair dealing that an open and democratic society
demands. What is largely implicit in the
judgments of my colleagues
should, I believe, be the centrepiece of the analysis. I agree with
what appear to be the underlying
premises of the two judgments: in an
open and democratic society based on human dignity, equality and
freedom, it would be inappropriate
to restrict review of the
commissioner's decision to the very narrow grounds of procedural
misconduct that a first reading of section
145(2) would suggest; at
the same time, the labour law setting, requiring a speedy resolution
of the dispute with the outcome basically
limited to dismissal or
reinstatement, makes it inappropriate to apply the full PAJA type
administrative review on substantive
as well as procedural grounds;
and to the extent that the right to just administrative action is
involved, the values of fair dealing
that underlie section 33 of the
Constitution must be respected. I accept that inasmuch as the right
to a fair labour practice is
at the centre of the analysis, the
outcome of the arbitration process must not fall outside the bounds
of reason; to accept it
doing so would hardly represent a fair
outcome. Finally, acknowledging the adjudicatory element that
implicates the right to a
fair hearing under section 34, I would hold
that a fair hearing demands that at the very least there be some
reasonably sustainable
fit between the evidence and the outcome.
[159]
To my mind, acknowledging hybridity and permeability leads to direct
and unstrained engagement with the particular
constitutional
interests and values at stake. I weigh the facts in the same way
according to the same basic criteria, and arrive
at the same
conclusion as they do…
[164]
The ultimate question in determining whether to interfere with a
commissioner's award in an arbitral proceeding
is whether the conduct
of the commissioner falls into any of the grounds of review set forth
in section 145(2) of the LRA, namely,
misconduct in relation to his
or her duties, gross irregularity in the conduct of the arbitration
proceedings, or acting in excess
of his or her powers. These grounds
of review must be interpreted in the light of the constitutional
constraints referred to above
and the primary objective of the LRA.
This is the interpretive injunction contained both in section 39(2)
of the Constitution and
section 174 in the LRA.
[165]
Thus construed, the commissioners are required to act fairly in the
determination of unfair dismissal disputes.
If a commissioner fails
to do so he or she commits a gross irregularity in the conduct of the
arbitration proceedings and the ensuing
arbitral award falls to be
reviewed and set aside. Similarly, if a commissioner makes an award
which is inconsistent with his or
her obligations under the LRA, he
or she acts in excess of the powers conferred by the LRA and the
award falls to be reviewed and
set aside.
[266]
The requirement of fairness in the conduct of arbitration proceedings
is consistent with the LRA and the Constitution.
First, a CCMA
commissioner is required by section 138(1) of the LRA 'to determine
the dispute fairly and quickly'. Second, in terms
of section 34 of
the Constitution, everyone has the right to have any dispute that can
be resolved by the application of the law
decided in a fair public
hearing before a court of law or an independent and impartial
tribunal. The CCMA and Labour Courts were
established to resolve
labour disputes. CCMA arbitrations provide independent and impartial
tribunals contemplated in section 34
of the Constitution. The right
to a fair hearing before a tribunal lies at the heart of the rule of
law. And a fair hearing before
a tribunal is a prerequisite for an
order against an individual and this is fundamental to a just and
credible legal order. A tribunal
like the CCMA is obliged to ensure
that the proceedings before it are always fair. And finally, section
23 of the Constitution
guarantees to everyone the right to fair
labour practices.
[267]
It is plain from these constitutional and statutory provisions that
CCMA arbitration proceedings should be conducted
in a fair manner.
The parties to a CCMA arbitration must be afforded a fair trial.
Parties to the CCMA arbitrations have a right
to have their cases
fully and fairly determined. Fairness in the conduct of the
proceedings requires a commissioner to apply his
or her mind to the
issues that are material to the determination of the dispute. One of
the duties of a commissioner in conducting
an arbitration is to
determine the material facts and then to apply the provisions of the
LRA to those facts in answering the question
whether the dismissal
was for a fair reason. In my judgment where a commissioner fails to
apply his or her mind to a matter which
is material to the
determination of the fairness of the sanction, it can hardly be said
that there was a fair trial of issues.
[268]
It follows therefore that where a commissioner fails to have regard
to material facts, the arbitration proceedings
cannot in principle be
said to be fair because the commissioner fails to perform his or her
mandate. In so doing, in the words
of
Ellis
, the
commissioner's action prevents the aggrieved party from having its
case fully and fairly determined. This constitutes a gross
irregularity in the conduct of the arbitration proceedings as
contemplated in s 145(2) (a) (ii) of the LRA. And the ensuing award
falls to be set aside not because the result is wrong but because the
commissioner has committed a gross irregularity in the conduct
of the
arbitration proceedings.’
[16]
In
Shoprite
Checkers (Pty) Ltd v Ramdaw NO & Others
[3]
,
it was held as follows:
‘
In
considering whether or not the first respondent's award falls to be
set aside on the ground that it is not justifiable in relation
to the
reasons given for it, I consider that one must have regard to the
material that was properly available to the first respondent,
the
decision he took and the reasons that he gave for such decision. As
one does this, one must bear in mind what Chaskalson P
said in the
Pharmaceutical
Manufacturers
’
[4]
case,
namely that a decision that is objectively irrational is likely to be
made only rarely. Of course, I am saying this insofar
as it seems
that there is much commonality between justifiability and
rationality. One must also bear in mind the importance of
maintaining
the distinction between appeals and reviews. It must also be borne in
mind that the Act contemplates that the disputes
that it requires to
be referred to arbitration are meant to be put to an end by way of
arbitration and that the dispute-resolution
dispensation of the Act –
which is meant to be expeditious – would collapse if every
arbitration award could be taken
on review and set aside.’
And:
‘
In
the light of what has been said above in regard to
Carephone
[5]
and
the
Pharmaceutical
Manufacturers
'
case and what was said by the Constitutional Court in the latter
case, and in the light of the possibility that the PAJA may well
be
applicable to arbitration awards issued by the CCMA, I am of the view
that it would not serve much purpose for this court to
consider
whether or not its decision in
Carephone
was correct and whether or not such decision should be departed from.
In those circumstances
Carephone
stays. This appeal can, therefore, be considered on the basis that,
as was decided by this court in Carephone, CCMA awards can
be
reviewed and set aside if they are not justifiable in relation to the
reasons given for them…’
[17]
The
Applicant raised several grounds of review. These challenge the
findings of the Commissioner regarding both the substantive
fairness
and the procedural fairness. The test on review is well established,
and it is whether the decision under review is one
that a reasonable
decision-maker could not reach on the evidential material available.
In
South
African Breweries (Pty) Ltd v Hansen and others
[6]
,
the review test was summarised as follows:
‘
[10]
The test that the Labour Court is required to apply in a review of an
arbitrator’s award was settled by the Constitutional
Court in
Sidumo and Another v Rustenburg Platinum Mines Ltd and Others
(
Sidumo
). It is that an arbitration award is reviewable if
the decision reached by the arbitrator was one that a reasonable
decision maker
could not reach. Essentially, this test requires the
Labour Court, sitting as a court of review, to enquire whether the
decision
under review is one that a reasonable decision maker could
not reach on the evidential material available. On this test, an
arbitration
award based on defective reasoning by an arbitrator may
still pass the muster required in reviews, provided that the result
is
one that a reasonable decision maker could have reached. This was
clarified by the Supreme Court of Appeal in
Herholdt v Nedbank
Limited (Congress of South African Trade Unions as amicus curiae)
as follows:
“
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 enquiry 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, 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.”
[11]
In
Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v
Commission for Conciliation, Mediation and Arbitration and Others
(Gold Fields),
this court refined the Sidumo test by introducing
a two-stage enquiry. In short, this requires the Labour Court to
consider two
issues: The first is whether the applicant has
established an irregularity. This irregularity could be a material
error of fact
or law, the failure to apply one’s mind to
relevant evidence, or misconceiving of the enquiry or assessing
factual disputes
in an arbitrary fashion. The second is whether the
applicant has established that the irregularity is material to the
outcome by
demonstrating that the outcome would have been different
having regard to the evidence before the arbitrator. An arbitration
award
will, therefore, be considered to be reasonable when there is a
material connection between the evidence and the result.’
Procedural
fairness
[18]
The first
point of departure in this matter is the issue of procedural
fairness. In terms of Item 4(1) of the Code of Good Practice
[7]
,
an employer should normally conduct an investigation to determine
whether grounds for the dismissal exist. On the evidence presented
on
an unchallenged basis, this was done by Dlamini. The Code recognises
that it need not be a formal enquiry but the employee needs
to be
notified and should be permitted to state their case in response to
the allegation. This too was done. The Code stipulates
that the
employee must be given a reasonable time to prepare his or her
response and must be allowed the assistance of a trade
union
representative or fellow employee. This does not seem to be one of
the issues raised by the Applicant. The Court in
Avril
Elizabeth Home for the Mentally Handicapped v CCMA and others
[8]
confirmed this by holding that the employer was merely required to
conduct an investigation, give the employee or his/her representative
an opportunity to respond to allegations after a reasonable period
and thereafter to take a decision and give the employee notice
thereof.
[19]
The Applicant argues that his dismissal was procedurally unfair as
the chairperson of the disciplinary hearing, Niemach
was tainted with
biasness and that Niemach had investigated the incident when he
testified that Motaung called him on the day of
the incident to
furnish him (Niemach) with the statements and reports thereof. The
Commissioner dismissed this aspect of the argument
and found that:
‘
The
testimony submitted in these proceedings does not seem to support the
Applicant’s claims. The Respondent’s first
witness
testified that he was the one who investigated the case and none of
his testimony was disputed. He also failed to dispute
the version of
the HR Manager, who testified why he sent an email explaining why the
Chairperson should not chair disciplinary
hearing. The Applicant went
to great lengths in explaining how incompetent and bias the
Chairperson was but strangely enough, indicated
that he had no
problem with him at the commencement of the hearing. This behaviour
does not seem to suggest of someone who had
an issue with the
chairperson and his issue only came after he was dismissed. Therefore
I could not support his version that the
Chairperson was biased.’
[20]
I must state in rather unequivocal terms that I am not persuaded by
the Applicant’s argument. The Applicant simply
raises the issue
of procedural unfairness purely on the basis that Niemach was an
investigator in the matter and as a result Niemach
was biased. The
Commissioner was persuaded and found that Dlamini had testified that
he was the one who had investigated the matter
and this was not
challenged. I fully concur with this determination. There is simply
nowhere in the transcript where this version
is opposed by the
Applicant; it remains unchallenged and any reasonable presiding
officer in the shoes of the Third Respondent
was inclined to accept
and determine as he correctly did. Niemach also stated during the
arbitration when asked if he had investigated
the matter by stating
that “
no, investigations are left to the HODs and Line
Managers
”. If the Applicant’s ground for review is
premised on the alleged bias of the chairperson for having
investigated the
matter, then this stands to fail.
[21]
The result
of this is that the evidence of the First Respondent is left
uncontradicted, and the Commissioner was thus inclined to
accept it
on its unopposed basis. There are a few judgements which settle this
issue of failing to call a direct and crucial witness
in the
proceedings. In
New
Way Motor and Diesel Engineering (Pty) Ltd v Marsland
[9]
,
the Court dealt with very similar circumstances and said the
following:
‘
That
conclusion is the following: the evidence of respondent constitutes
the uncontradicted factual matrix. Mr Freed or any other
member of
appellant could have testified and placed in issue the employment
conditions described by respondent as he had set them
out in his
evidence. This was never done and therefore the evidence of
respondent pertaining to his illness and the actions of
appellant's
employees and directors remains uncontradicted…’
[22]
In
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[10]
,
the Constitutional Court held that –
‘
If
a point in dispute is left unchallenged in cross-examination, the
party calling the witness is entitled to assume that the unchallenged
witness's testimony is accepted as correct. This rule was enunciated
by the House of Lords in
Browne v Dunn
and has been adopted
and consistently followed by our courts.’
[23]
It may be so that Niemach may have been furnished with the
breathalyser test results, calibration certificate and statements,
however, this does not in any way affect Niemach’s ability to
preside over the matter impartially, at least there is no evidence
to
suggest otherwise. The evidence is simply that Niemach had received
the information as part of his responsibilities as the SHE
Specialist
and nothing more. Following the submission of the information, the
investigation was done and such was solely executed
by Dlamini and
Niemach did not involve himself in the said investigation. I am thus
not persuaded that the Commissioner misconstrued
the evidence herein
in finding as he did. A pertinent question that should perhaps follow
in determining if Niemach was biased
or not is whether the
information, even at the disciplinary hearing and arbitration stage,
was disputed and that Niemach had concocted
such in order to reach
the guilty verdict. The answer is in the negative. The Applicant does
not dispute any of the evidence led,
none whatsoever. The Applicant
in fact accepts that he was tested on the day in question and that he
tested positive due to the
“headache medication” he had
taken. It is on this basis that the Applicant’s ground for
review stands to fail.
The question remains, what did Niemach do to
uphold the notion that he was biased in his chairing of the
Applicant’s case?
Niemach was met with straightforward and
undisputed issues and his ultimate role was to simply apply the
prescripts of the employer’s
policy.
Substantive
fairness
[24]
The Applicant was indeed issued with a final written warning which he
was aware of. The final written warning was current
and binding at
the time of the disciplinary proceedings that led to the Applicant’s
dismissal. In fact, the Applicant does
not deny this, instead, he
tried to distinguish the final written warning from the current
misconduct and argued that the misconduct
which gave rise to his
dismissal is for a different misconduct and not as presented by the
First Respondent. This argument is superficial
in my view. In fact,
in terms of the evidence led at the arbitration, the Applicant was
asked why he accepted the final written
warning of 5 August 2019
disclosing misconduct as “
not taking the breathalyser test
each time when entering company premises at numerous instances as per
your own admission
” and he inadvertently sought to be
evasive. This is in any case reflected in the Applicant’s
founding affidavit that
this is the basis for his final written
warning. The Applicant’s final written warning needs no
interpretation that it was
for a similar misconduct. I also fully
concur with the submission of the First Respondent that both charges
carry the assumption
that the Applicant was under the influence of
alcohol whilst on duty and this is, in any case, in line with the
First Respondent’s
policy.
[25]
On his own
terms, the Applicant is of the view that the final written warning
should be ignored and he should be issued with a further
final
written warning in line with the employer’s policy. The Code of
Good Practice holds as follows:
[11]
‘
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.’
[26]
The purpose
of the final written warning is, in essence, to place the employee on
final terms. As a matter of general principle,
a final written
warning is exactly what it says, being that a repeat of the
transgression in a specified period will result in
dismissal. It is a
last chance. In the circumstances, the Third Respondent simply cannot
be faulted for his reasoning that it was
not open for him to consider
the validity or fairness of the final written warning and in fact, he
was entitled to accept, and
then apply, which he duly did, the final
written warning as it stood, in deciding the issue of a fair
sanction. The Court in
Transnet
Freight Rail v Transnet Bargaining Council and Others
[12]
specifically dealt with the very issue of the consequences of a final
written warning and said:
‘
[42]
Usually, the presence of a valid final written warning at the time of
the commission of the same or similar
form of misconduct should be
properly interpreted as aggravating in nature. The principles of
progressive discipline require such
a re-offending employee usually
to be considered irredeemable.
[43]
….
“
I
accept that the purpose of a warning is to impress upon the employee
the seriousness of his actions as well as the possible future
consequences which might ensue if he misbehaves again, namely that a
repetition of misconduct could lead to his dismissal.”’
And
in
Gcwensha
v Commission for Conciliation, Mediation and Arbitration and
Others
[13]
,
the Court held:
‘
I
accept that the purpose of a warning is to impress upon the employee
the seriousness of his actions as well as the possible future
consequences which might ensue if he misbehaves again, namely that a
repetition of misconduct could lead to his dismissal…’
[27]
The
Applicant is a senior employee whose transgression should be viewed
in a serious light and repetition of similar misconduct
could result
in dismissal. Even if I were to accept that the final written warning
was issued for a different misconduct, which
I don’t, the
Courts have recognised that a final written warning for a different
form of misconduct may aggravate the misconduct
in question where it
demonstrates a propensity on the part of the accused employee to
behave in a certain manner. The Labour Appeal
Court in the case of
NUM and
another v Amcoal Colliery t/a Arnot Colliery and another
[14]
,
considered
the question of whether previous misconduct should be taken into
account in imposing a penalty on unrelated misconduct.
Specifically,
the Court held that:
‘
Even
on the assumption that the present offence is unrelated to the
previous misconduct, I still do not think the second appellant’s
disciplinary record should have been disregarded. The first
respondent’s disciplinary code provides for a progression of
penalties. The rationale behind it must have been that there would
come a stage beyond which the accumulated penalties cannot be
allowed
to progress further. Their cumulative effect would then provide clear
evidence of ill-discipline which would render a continued
employer-employee relationship intolerable.’
[28]
This ground for review also stands to fail.
[29]
The Applicant’s third ground for review, factually and
lawfully, also stands to fail. In terms of the transcript
presented
to this Court, it is rather undeniable that the First Respondent had
the onus to prove that the Applicant’s dismissal
was fair and
in fact executed this responsibility exceptionally. There was
therefore no shift of burden as alleged by the Applicant.
When the
Commissioner made a determination in terms of the headache medication
excuse presented by the Applicant, he did so in
his quest to
determine the valueless and inadmissible explanation presented by the
Applicant that he tested positive due to his
headache medication. The
First Respondent had already levelled the playing field and the
Commissioner was satisfied. I too am satisfied
that enough evidence
was presented by the First Respondent to qualify the dismissal
imposed against the Applicant.
[30]
The
Applicant’s
submission that the Commissioner was persuaded by irrelevant evidence
and failed to consider relevant evidence
adduced by the Applicant, as
such the Commissioner has failed to apply his mind to the evidence
that was presented before his,
is a misplaced submission. The Third
Respondent was called to determine whether the decision of the First
Respondent to dismiss
the Applicant was based on the facts presented
before him and whether such dismissal was justifiable. The First
Respondent submitted
that the Commissioner executed his duties
properly as such no reviewable irregularity was committed. I fully
agree.
The
judgement in
S
v Civa
[15]
is particularly apposite. It was held as follows:
‘
The
evidence must be weighed as a whole, taking account of the
probabilities, the reliability and opportunity for observation of
the
respective witnesses, the absence of interest or bias, the intrinsic
merits or demerits of the testimony itself, any inconsistencies
or
contradictions, corroboration, and all other relevant factors. It is
in the context of this overall scrutiny of the evidence
that
demeanour, if there are sufficient indications thereof to be
significant, must be assessed.’
[31]
As
a general proposition, it is submitted that the Commissioner, in
declaring the Applicant’s dismissal procedurally and
substantively fair, properly determined the evidence before him, and
the finding which is fully supported by the evidence. There
is simply
no reason to interfere with his arbitration award.
Reference
is made to the following extract from
Crown
Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp & Others
[16]
:
‘
[19]
Arbitration awards issued by the CCMA may be reviewed on any of the
grounds set out in section 145 of the Act more especially
where the
commissioner had committed a gross irregularity in the conduct of the
arbitration proceedings. The decision of the arbitrator
can also be
set aside if it is not rationally related to the purpose for which
the power was given from an objective view (
Shoprite
Checkers (Pty) Ltd v Ramdaw NO & others
(2001) 22 ILJ 1603 (LAC) para [26],
Pharmaceutical
Manufacturers' Association of SA & others: in re Ex Parte
Application of the President of the RSA & others
[2000] ZACC 1
;
2000 (3) BCLR 241
(CC)) or if it is not justifiable as to the reasons
given. See
Carephone (Pty) Ltd v Marcus
NO & others
(1998) 19 ILJ 1425
(LAC);
(1998) 11 BLLR 1093
(LAC) at 1103C. By rational I understand
that the award of an arbitrator must not be arbitrary and must have
been arrived at by
a reasoning process as opposed to conjecture,
fantasy, guesswork or hallucination. Put differently the arbitrator
must have applied
his mind seriously to the issues at hand and
reasoned his way to the conclusion. Such conclusion must be
justifiable as to the
reasons given in the sense that it is
defensible, not necessarily in every respect, but as regards the
important logical steps
on the road to his order.
[20] A gross
irregularity can occur patently where for example the right to
cross-examination is denied or latently where
the reasoning is so
flawed that one must conclude that there has not been a fair trial of
the issues. See Toyota SA Motors (Pty)
Ltd v Radebe & others
(2000) 21 ILJ 340 (LAC).’
[32]
Perhaps for completeness sake, the fact that the Applicant sought to
evade the main gate and accessed the premises through
the back doors
says a lot about the Applicant and his mischievousness. I accept that
this issue was not vigorously dealt with at
arbitration but I am
seamlessly attracted to it in order to determine that the Applicant
knew that he was in fact under the influence
of alcohol and did
everything possible to evade being tested. The evasion on its own is
misconduct. As already indicated, the Applicant
is a senior employee
of the First Respondent who was at all material times aware and
appreciated the prescripts of the First Respondent’s
policy and
whom can be reasonably been regarded as a caretaker of such policy.
He was in a better position to judge for himself
the unfortunate
consequence of reporting under the influence of alcohol especially
with a final written warning in place and did
everything in his power
to evade being subjected to the breathalyser test. This, in my
vehement opinion, works against the Applicant;
in fact, it portrays
someone who had unscrupulous intentions over and above the fact that
he was under the influence of alcohol.
[33]
The
Commissioner properly applied his mind to the evidence that was
presented before him. In this regard, it is respectfully submitted
that the Commissioner was persuaded by relevant evidence and properly
considered the relevant evidence adduced before him. There
are
therefore no acts of gross irregularity on the part of the
Commissioner rendering his award reviewable. The Third Respondent
committed no reviewable irregularity at all in his award. The Third
Respondent thoroughly interrogated the versions of the respective
parties and their witnesses and reached a reasonable conclusion that
any commissioner would have arrived at. The Third Respondent’s
primary duty was to resolve the factual controversy between the
parties, as the Third Respondent was faced with mutually destructive
versions tendered by the Applicant and the First Respondent. The
Commissioner properly assessed the credibility of both the First
Respondent’s witnesses and the Applicant himself in the
arbitration hearing. Evidently, the Third Respondent rejected
evidence
adduced by the Applicant on grounds that are comprehensible.
In the case of
Marapula
& Others v Consteen (Pty) Ltd
[17]
,
it was held as follows:
‘
The
credibility of witnesses and the probability or improbability of what
they say should not be regarded as separate enquiries
to be
considered piecemeal. They are part of a single investigation into
the acceptability or otherwise of the employer's version,
an
investigation where questions of demeanour and impression are
measured against the content of the witnesses' evidence, where
the
importance of any discrepancies or contradictions is assessed and
where a particular story is tested against facts which cannot
be
disputed and against the inherent probabilities, so that at the end
of the day one can say with conviction that one version
is more
probable and should be accepted, and that therefore the other version
is false and may be rejected with safety.’
[34]
In the premise I make the following order:
Order
1. The review
application is dismissed.
2. There is no
order as to costs.
M.M
Ntsoane
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Mr Mduduzi Junior Mngomezulu
Instructed
by:
Wright Rose
Innes Attorneys
For
the Respondent: Ms Laura
Macfarlane
Instructed
by:
Norton Rose
Fulbright
[1]
Act
66 of 1995, as amended.
[2]
[2007] ZACC 22
; 2007 (28) ILJ 2405 (CC) at para 1.
[3]
[2000] ZALAC 5
; (2001) 22 ILJ 1603 (LAC) at paras 82 and 33.
[4]
Pharmaceutical
Manufacturers Association of SA and another: In Re Ex Parte
President of the Republic of South Africa and others
[2000] ZACC 1; (2000) 3 BCLR 241 (CC).
[5]
Carephone
(Pty) Ltd v Marcus NO & others
[1998] ZALAC 11
; (1998) 19 ILJ 1425 (LAC) at 1103C.
[6]
[2017] ZALAC 29
; (2017) 38 ILJ 1766 (LAC)
[7]
Schedule 8 to the LRA – Code of Good Practice: Dismissal.
[8]
[2006] ZALC 44
;
(2006)
27 ILJ 1644 (LC).
[9]
[2009] ZALAC 27
; (2009) 30 ILJ 2875 (LAC) at para 23.
[10]
[1999] ZACC 11
;
2000 (1) SA 1
(CC) at para 61.
[11]
Item 3(5).
[12]
[2011] ZALCJHB 15; (2011) 32 ILJ 1766 (LC) at para 42 - 43. See also
Builders
Trade Depot v Commission for Conciliation, Mediation and Arbitration
and Others
[2011] ZALCD 8; (2012) 33 ILJ 1154 (LC) at paras 45 – 46.
[13]
(2006) 27 ILJ 927 (LAC) at para 32.
[14]
[2000] 8 BLLR 869
(LAC) at para 21.
[15]
(1974) 3 SA 844
(T) 846H – 847A.
[16]
(2002) 23 ILJ 863 (LAC) at paras 19 – 20.
[17]
(1999) 20 ILJ 1837 (LC) at para 33.