Toyota South Africa Motors (Pty) Ltd v Radebe and Others (DA2/99) [1999] ZALAC 42 (3 December 1999)

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[1999] ZALAC 42
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Toyota South Africa Motors (Pty) Ltd v Radebe and Others (DA2/99) [1999] ZALAC 42; [2000] 3 BLLR 243 (LAC); (2000) 21 ILJ 340 (LAC) (3 December 1999)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
No: DA2/99
In
the matter between
TOYOTA
SOUTH AFRICA MOTORS (Pty)Ltd Appellant
and
DOUGLAS
RADEBE First Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
Second
Respondent
P.
STONE N.O Third Respondent
___________________________________________________________________________
JUDGEMENT
___________________________________________________________________________
ZONDO
AJP
Introduction
[1] This
is an appeal against a judgement of the Labour Court dismissing an
application brought by the appellant to review and set
aside an
arbitration award by the third respondent in a dispute between the
appellant and the first respondent. I do not intend setting
out the
facts which gave rise to the dispute as those have been set out very
well in the judgement of my Colleague, Nicholson JA,
which appears
after this judgement.
[2] I
have had the pleasure of reading my Colleague’s judgement. I agree
with both his conclusion as well his reasons for that conclusion.
However, I consider it appropriate to add to his reasons. My addition
deals with the reasoning of the commissioner which led him
to the
implied conclusion that the dismissal was unfair.
[3] It
appears to be necessary to make the addition that I wish to make in
order to demonstrate that the commissioner ‘s reasoning
in this
case reveals what Schreiner J, as he then was, would regard as latent
gross irregularities. As Schreiner J pointed out, correctly
in my
view, that is the category of gross irregularities which are only
ascertainable from the reasons given by the decision- maker
for his
decision.
Analysis
of the Commissioner’s reasoning
[4] A
proper analysis of the commissioner’s award in this case reveals,
in my view, that the main, if not the only, reason why the
commissioner made (by implication) the finding that the dismissal was
unfair was the commissioner’s belief that dismissal was not
the
only sanction available to the appellant. The questions which arise
out of this approach of the commissioner are : What does
it mean to
say dismissal was not the only sanction available to the appellant?
Can it ever be said that dismissal is the only sanction
available to
an employer in any given case? If yes, when can this be said to be
the case?
[5] It
must be borne in mind that the commissioner did not qualify what he
said in any way by reference to, for example, reasonableness.
In
other words, the commissioner did not say that he believed that
dismissal was not the only sanction reasonably available to the
appellant. The commissioner’s reasoning needs to be tested.
[6] If
an employee is guilty of the most serious misconduct and he has been
in the employment of his employer for a short while, would
the
commissioner find the dismissal of such employee in such a case
unfair on the basis that dismissal was not the only sanction
available to the employer or would he find the dismissal unfair
because the misconduct is the most serious one can think of? If the
same employee had a long service such as thirteen years of service,
but he had committed the most serious misconduct imaginable,
and the
employer dismissed such employee, would the commissioner have found
the dismissal unfair on the basis that dismissal was
not the only
sanction available to the employer or would he say the length of
service renders the dismissal unfair even if the misconduct
was the
most serious one could think of? Here below I consider specific
examples.
[7] Let
us imagine a case where an employee rapes a female co-employee on the
employer’s premisses (during a night shift) and the
employer
dismisses the culprit. Would the commissioner find the dismissal
unfair because dismissal was not the only sanction available
to the
employer? To take this one step further, let us imagine that the
female employee who is the victim of such a rape happens
to be the
daughter of the managing director of the employer company. The
employee has 13 years of service and has a clean record.
If the
employer dismissed that employee, would the commissioner find the
dismissal unfair because dismissal was not the only sanction
available to the employer?
[8] Another
example may still be warranted. An employee commits fraud involving
an amount of R50 000,00 against his employer. The
employee has 13
years of service and has a clean record. Would the commissioner find
the dismissal of that employee unfair on the
basis that dismissal is
not the only sanction available to the employer? Let us take a case
where an employee is guilty of murdering
one of the managers in a
company in circumstances where he has service of 13 years with a
clean record but in this case he murdered
the manager for absolutely
no reason. He has no defence or acceptable explanation for his
misconduct. Would the commissioner find
his dismissal unfair because
dismissal was not the only sanction available to the employer?
[9] I
am well aware that the examples I have given are extreme cases.
However, I have done this deliberately because not only do I
regard
the case which the commissioner in this case had to deal with as an
extreme one but the commissioner also regarded it as
an extreme one.
I say this because, in his award, he also said the first respondent’s
dishonesty was gross, wilful and premeditated.
[10] In
my view, gross dishonesty must rank as one of the extreme cases of
serious misconduct which an employee may make himself guilty
of, and,
which an employer may have to deal with, in a workplace. It seems to
me that the effect of the commissioner’s reasoning
is that no
matter how serious the misconduct committed by an employee is, an
employer cannot dismiss such employee if dismissal is
not the only
sanction available. In my judgement that is absurd.
[11] Quite
apart from the fact that it is not clear when, on the commissioner’s
reasoning, it can be said that dismissal is the
only sanction
available in any given case, it is not our law and has never been our
law that, if an employer dismisses an employee,
he must demonstrate
that dismissal was the only sanction available to him if the
dismissal is to be regarded as fair. This must
not be equated with
the principle that dismissal must be a sanction of last resort. That
is usually said in the context of the corrective
nature of
progressive discipline and it has never been suggested that that
approach precludes the dismissal of an employee for a
first offence
where such offence is of a serious nature.
[12]
Even the Code of Good Practice on dismissal under the Act
contemplates dismissal for a first offence in the last-mentioned
situation.
The Code goes on to give examples of serious misconduct.
One of the examples it gives is that of gross dishonesty. In such a
case
the Code says dismissal for a first offence would not be
inappropriate.
[13] The
Commissioner did refer to the provisions of the code which say what I
have just said in the preceding paragraph. However,
soon after
quoting the Code, the commissioner said this was a case of willful
and premeditated gross dishonesty, which neither the
respondent nor
the CCMA should condone. When, later on, the commissioner found the
dismissal unfair, one would have expected that,
in the light of this
statement by him, he would explain how he reconciled such a finding
with his acceptance that this was misconduct
of a gross nature which
had been premeditated, was wilful and which neither the employer nor
the CCMA should condone. However, he
did not explain this. The result
of this is that his implied finding that the dismissal was unfair is
left completely unexplained
when viewed against that statement.
[14] After
carefully considering the commissioner’s reasoning and reading his
award over and over again, I still have no idea what
the commissioner
meant by saying dismissal was not the only sanction available to the
appellant. The closest I can think of is that
he meant that the
misconduct committed by the first respondent was not sufficiently
serious to justify his dismissal. If that is
what he meant, then, in
my view, it would contradict his earlier finding that this was a
case of gross dishonesty. As the commissioner
had described the first
respondent’s dishonesty as gross, he must have found the misconduct
extremely serious.
[15] Furthermore,
the commissioner said that the first respondent
“made one error in
thirteen
years of employment for which he was contrite.”
This statement suggests that the commissioner may have seen the
length of service of the first respondent as a mitigating factor
even
in the case of so serious an offence. Although a long period of
service of an employee will usually be a mitigating factor where
such
employee is guilty of misconduct, the point must be made that there
are certain acts of misconduct which are of such a serious
nature
that no length of service can save an employee who is guilty of them
from dismissal. To my mind one such clear act of misconduct
is gross
dishonesty. It appears to me that the commissioner did not appreciate
this fundamental point.
[16] I
hold that the first respondent’s length of service in the
circumstances of this case was of no relevance and could not provide,
and should not have provided, any mitigation for misconduct of such a
serious nature as gross dishonesty. I am not saying that there
can be
no sufficient mitigating factors in cases of dishonesty nor am I
saying dismissal is always an appropriate sanction for misconduct
involving dishonesty. In my judgement the moment dishonesty is
accepted in a particular case as being of such a serious degree as
to
be described as gross, then dismissal is an appropriate and fair
sanction.
[17] Another
factor which the commissioner seems to have found to be a mitigating
factor in addition to long
“clean”
service
is that, in the commissioner’s view the first respondent was
contrite about his misconduct. There was no basis for that
finding.
Whether or not the first respondent was contrite depends on whether
or not his version or that of the appellant should be
accepted as
true on whether, when the first respondent finally admitted that his
hi-jack story was a lie, it was because, as he has
suggested
throughout, his conscience got the better of him or whether, as the
appellant suggested, he had realised that his story
had been
discovered to be so highly improbable that he could not persist in
it.
[18] The
commissioner believed that the reason why the first respondent told
the truth when he did was that his conscience got the
better of him.
A court of appeal or a review court will not lightly overturn a
finding of fact made by a trier of fact who has had
the benefit of
hearing and seeing witnesses in the witness box except in certain
defined cases. One of such cases is where the probabilities
clearly
point the other way. In my view this is a case where the
probabilities in support of the appellant’s contention that the
reason why the first respondent told the truth was that he realised
that the game was up are so overwhelming that this court would
be
justified in interfering with the commissioner’s finding in this
regard.
[19] The
first respondent had had a lot of opportunity to come clean on his
own and tell the truth if his conscience was troubling
him. The
accident had occurred around 17h00 or so on Sunday the 29
th
June 1997. After a whole night’s sleep, he had an opportunity on
Monday morning of changing his mind. He did not. He had the whole
day
on Monday the 30
th
June 1997. Still he had not changed his mind. He had another night
sleep and an opportunity to reflect on his story and decide not
to
persist with the story. He did not decide to come clean. On Tuesday
the 1
st
July 1997 he had the whole day to come clean and yet he still did not
do so. He had another night’s sleep on Tuesday night so that
,
first thing on Wednesday morning, he could approach the appellant
and, of his own, come clean. He did not do so.
[20] By
the time Mr Muller took the first respondent to the spot where he had
abandoned the vehicle, the first respondent had not
come clean. The
first respondent did not on the way to the place where he had
abandoned the car tell Mr Muller the truth. It was
only when he was
confronted with the reality that the vehicle had been discovered and
it was standing in front of the two men with
the key in the ignition
and he was once again asked to give an explanation that he, for the
first time, told the truth. In the light
of the above the
probabilities overwhelmingly support the version that the first
respondent’s telling the truth had nothing to
do with him being
troubled by his conscience and had everything to do with him having
realised that his false story had been discovered.
[21] This
finding has certain implications for the first respondent. One of
these is that, notwithstanding his gross dishonesty and
his attempt
to defeat the ends of justice with his hi-jack story, the first
respondent still continued to be dishonest to the appellant
by
falsely maintaining that the reason why he told the truth was that
his conscience could not let him continue to lie and yet, by
saying
precisely that, he was still continuing to lie to the appellant.
[22]
Not only did the first respondent seek to mislead the appellant in
regard to this last mentioned aspect, but, also, he has sought
to
mislead the Labour Court as well as this Court. I say this because in
par 4.10 of his answering affidavit in the review application
he
repeated his lie about himself having told the truth because he could
no longer continue lying.
[23] Quite
apart from the first respondent’s lie about being contrite and
about what prompted him to tell the truth, there is another
statement
which the first respondent made in the arbitration which, in my
judgement, is clearly a lie. In his summary of the first
respondent’s
evidence in the arbitration proceedings, the commissioner says, among
other things, that the first respondent testified
that
“
he recognised that his company vehicle was a company asset and
therefore he parked the car in what he considered to be a safe
area.”
The
commissioner went on to say the first respondent agreed that the keys
were in the ignition but testified that the car was locked.
[24]
It
seems to me that, in giving the evidence referred to immediately
above, the first respondent sought to convince the commissioner
that
he did not intend to place the company vehicle in danger of being
stolen. That part of the first respondent’s evidence does
not make
any sense to me. If, indeed, that part of his evidence is true, what,
then, was the whole point of driving the vehicle to
the spot where he
left it and of reporting that it had been hi-jacked? It is clear that
the first respondent unashamedly continued
with his dishonesty right
up to this Court in order to try and protect his interests. In fact
the commissioner’s finding that the
first respondent gave the
appearance
of a credible and trustworthy witness baffles me. In the
circumstances of this case there was simply no basis on which
it
could be said that the first respondent was contrite nor was there
any basis for any suggestion that the first respondent was
a credible
witness.
[25] The
commissioner also stated that because the appellant had once resorted
to the idea of withdrawing the lease benefits of the
first
respondent, this could be resorted to this time as well so as to
ensure
that
there was no chance of the first respondent causing another accident
again. Seeing that evidence had been led that this had been
tried
before and it did not seem to have contributed in any way to the
first respondent correcting his behaviour in regard to driving,
the
commissioner had no basis for using this measure to avoid confirming
that the dismissal was fair.
[26] I
have pointed out above that the commissioner found that the
misconduct which prompted the appellant to dismiss the first
respondent
was wilful and premeditated gross dishonesty. In
Chetty’s
Motor Transport (Pty) Ltd National Transport Commission and another
1972(1) SA156 (N) at 159 D Miller J
expressed
the view
that,
when a decision is described as grossly unreasonable in cases such as
the one he had to consider, that means that the unreasonableness
of
the decision is of such a degree as to be indefensible on any
legitimate ground. In the context of this matter I would say that,
when it is said that the first respondent was guilty of gross
dishonesty, that must mean dishonesty of such a degree (if one can
speak of degrees of dishonesty) as to be completely indefensible on
any ground. To my mind that is a fitting description for the
misconduct of which the first respondent was guilty .
[27] Where
an employer has dismissed an employee for such indefensible
misconduct and the commissioner accepts that the employee is
guilty
of such misconduct but nevertheless concludes that the employer acted
unfairly in dismissing such employee (and such finding
is not based
on procedural grounds,) then, in my judgement, the inference is
irresistible that the commissioner completely misconceived
his
functions. Otherwise his conclusion is completely inexplicable. When
a commissioner has misconceived his functions in that way,
it can be
said that the unsuccessful party has not been afforded a fair hearing
and that, therefore, a gross irregularity has been
committed
justifying the reviewing and setting aside of the commissioner’s
award.
RMM
ZONDO
Acting
Judge President
NICHOLSON
J A
[28] The
first respondent was employed by the appellant as a supervisor and
assistant manager for some 13 years and during this period
maintained
a clean disciplinary record. As a term of the first respondent’s
employment contract he enjoyed lease car benefits which
were
suspended for a year prior to the second half of 1996. During the
period from September 1996 to December 1996 first respondent
was
involved in four collisions involving the car he drove, pursuant to
the said lease scheme, with a repair cost of R 28 956,00.
[29] On
29 June 1997 first respondent was involved in a further accident. He
drove the vehicle to a parking area in Amanzimtoti and
abandoned it,
leaving the keys in the ignition. On the same day he reported the
fact that the car had been hi-jacked to the police.
On the next day
he informed his departmental manager and the appellant’s Fleet
Division of the said hi-jacking. First respondent
admitted that he
had lied about the hi-jacking to the appellant’s security
investigator on 2 July 1997.
[30] The
first respondent was charged at a disciplinary enquiry with
fraudulent and dishonest behaviour and negligent damage to company
property of a substantial nature. He was dismissed on 21 July 1997
and his internal appeal failed on 1 August. The dispute with regard
to the dismissal of the first respondent was referred to the second
respondent for conciliation and failing that for arbitration
by the
third respondent in terms of section 191 of the Labour Relations Act,
no 66 of 1995 (‘the Act’). The third respondent
found that the
sanction of dismissal was too harsh but imposed a sanction involving
his re-employment. This meant that he lost his
past benefits,
including those accruing from 13 years of service, and he was
penalised by a loss of pay prior to the arbitration
(some three
months salary) and a loss of the car lease benefits that he enjoyed.
This re-employment was coupled with a final warning
for dishonesty.
All these sanctions were imposed in terms of section 193(1)(b).
[31] The
appellant unsuccessfully reviewed the arbitration award in the Labour
Court in terms of section 145 (2)(ii) and (iii) and
section 158(1) of
the Act. Section 158(1)(g) provides that the Labour Court can review
‘the performance or purported performance
of any function provided
for in this Act or any act or omission of any person or body in terms
of this Act on any grounds that are
permissible in law’. This form
of review was the full form of review previously referred to as
common law review. The review mentioned
in section 145 was based on
the Arbitration Act, no 42 of 1975, and is of a more limited nature.
The decision to invoke both sections
was quite understandable given
the conflict in the case law as to which section was applicable where
a party sought to review an
arbitration award. That conflict has now
been resolved. It was properly conceded by both counsel that the
applicable section for
a review of an arbitration award is section
145. See
Carephone
(Pty) Ltd v Marcus N.O. and Others (1998) 19 ILJ 1425 (LAC) at 1433
H.
Section
145 reads as follows
“
145 Review
of arbitration awards
(1)
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-
within
six weeks of the date that the award was served on the applicant,
unless the alleged defect involves corruption; or
if
the alleged defect involves corruption, within six weeks of the date
that the applicant discovers the corruption.
(2) A
defect referred to in subsection (1), means-
(a) that
the commissioner-
committed
misconduct in relation to the duties of the commissioner as an
arbitrator;
(ii) committed
a gross irregularity in the conduct of the arbitration proceedings;
or
(iii) exceeded
the commissioner's powers; or
(b) that
an award has been improperly obtained.
(3)
The Labour Court may stay the enforcement of the award pending its
decision.
(4) If
the award is set aside, the Labour Court may-
(a) determine
the dispute in the manner it considers appropriate; or
make
any order it considers appropriate about the procedures to be
followed to determine the dispute.”
[32] In
the
Carephone
decision
the court analysed the significance of the constitutional provisions
relating to administrative action and their relationship
to a review
in terms of section 145. The court then held at page 1439 D that
“
Accordingly,
the only bases for review are (1) that the facts amount to misconduct
or gross irregularity or impropriety under s 145(2)(a)
(I) -(ii) and
s 145(2)(b) of the LRA, or (2) that his actions are not justifiable
in terms of the reasons given for them and that
he has accordingly
exceeded his constitutionally constrained powers under s 145(2)(a)
(iii) of the Act.”
[33] The
third respondent’s award was attacked on three bases; namely, that
he committed a gross irregularity, that he exceeded
his powers as
contemplated in section 145(2)(a)(iii) above and that his actions
were not justifiable in terms of the reasons given
for them and that
he accordingly exceeded his constitutionally constrained powers under
s 145(2)(a) (iii) of the Act. It is only
necessary for the purposes
of this appeal to deal with the question of gross irregularity which
in my view is decisive. I intend
dealing briefly with the last
mentioned ground, namely the justifiability of the award, as I have
certain misgivings about whether
it constitutes an independent ground
upon which an award can be attacked. As such it is not part of
section 145, which restricts
an applicant to misconduct, corruption,
gross irregularity and the excess of powers. I am not sure that
Froneman DJP was importing
the last mentioned ground into section 145
and I believe the mention of it in the passage above was in any event
an
obiter
dictum.
I have two difficulties with importing this ground into the Act. The
first relates to the difference between appeals and reviews
and the
second relates to the constitutional implications of section 145.
[34] The
legislature has determined that there shall be no appeal from the
decision of an arbitrator. An attack on an award on the
basis that it
is not justifiable with regard to the reasons given amounts, to all
intents and purposes, to an appeal. Mr Tanner,
who appeared for the
first respondent, drew attention to the history of the legislation in
question. He argued that under the unfair
labour practice
jurisdiction of the old Act, namely the Labour Relations Act, 28 of
1956 all dismissals and, indeed, all unfair labour
practices were
heard in the industrial court. This process required that dismissed
employees had to finance their own litigation
- with legal aid where
applicable - in the industrial court. There was an automatic right of
appeal to the Labour Appeal Court.
[35] The
new Act had changed all that as, broadly speaking, section 191(5)(a)
provided for misconduct and incapacity dismissals to
be referred to
the Commission for Conciliation, Mediation & Arbitration(“CCMA”)
for arbitration. The legislature decided
that such a body should be
set up to provide a service for those dismissals. Clearly the
establishment of the CCMA involved a number
of budgetary decisions.
The legislature has decided to confer jurisdiction on the CCMA to
arbitrate the dismissals I have mentioned
with a limited right of
review to the Labour Court. In a perfect society with unlimited
resources full rights of appeal should be
allowed from every
administrative decision. Society has an inbred distaste for the
spectre of a remediless recipient of administrative
injustice. This
distaste is ameliorated in labour law, to some extent one hopes, by
the widespread service provided to those with
access to the CCMA.
[36] In
the
Carephone
decision at page 1427 E-G Froneman DJP said
“
The
vast majority of labour disputes, if not successfully conciliated in
terms of the Labour Relations Act 66 of 1995 (the LRA), end
up in
compulsory arbitration before the Commission for Conciliation,
Mediation & Arbitration (the commission). Arbitration is
intended
to dispose of a dispute finally (s 143(1) of the LRA). Where
arbitration is consensual the rationale for this finality,
without
the further intervention of a court of law, is understandable
(Amalgamated Clothing & Textile Workers Union v Veldspun
Ltd
[1993] ZASCA 158
;
1994 (1) SA 162
(A) at 169G-H; (1993) 14 ILJ 1431 (A) ). In the case
of compulsory statutory arbitration the failure to provide for
further legal
redress may be perceived as unsatisfactory by a losing
party. The LRA does not provide for any appeal against an arbitration
award
made by a commissioner exercising the commission's functions of
arbitration in terms of the LRA. It does, however, provide for the
review of the award by the Labour Court in certain circumstances.”
[37] In
Carephone
the
court considered the background to the powers of review and at page
1434 B - 1435F the following was stated
“
[32] But
it would be wrong to read into this section an attempt to abolish the
distinction between review and appeal. According to
The New Shorter
Oxford English Dictionary 'justifiable' means 'able to be legally or
morally justified, able to be shown to be just,
reasonable, or
correct; defensible'. It does not mean 'just', 'justified' or
'correct'. On its plain meaning the use of the word
'justifiable'
does not ask for the obliteration of the difference between review
and appeal. Neither does the LRA itself: it makes
a very clear
distinction between reviews and appeals.
............
[35] When
the Constitution requires administrative action to be justifiable in
relation to the reasons given for it, it thus seeks
to give
expression to the fundamental values of accountability,
responsiveness and openness. It does not purport to give courts the
power to perform the administrative function themselves, which would
be the effect if justifiability in the review process is equated
to
justness or correctness.
[36] In
determining whether administrative action is justifiable in terms of
the reasons given for it, value judgments will have to
be made which
will, almost inevitably, involve the consideration of the 'merits' of
the matter in some way or another. As long as
the judge determining
this issue is aware that he or she enters the merits not in order to
substitute his or her own opinion on the
correctness thereof, but to
determine whether the outcome is rationally justifiable, the process
will be in order.
[37]
....It seems to me that one will never be able to formulate a more
specific test other than, in one way or another, asking the
question: is there a rational objective basis justifying the
connection made by the administrative decision maker between the
material
properly available to him and the conclusion he or she
eventually arrived at? In time only judicial precedent will be able
to give
more specific content to the broad concept of justifiability
in the context of the review provisions in the LRA.”
[38] The
judgment emphasises that a distinction must be maintained between
review and appeal. It may be as well to revisit the test
for an
appeal on fact. In
R
v Dhlumayo
1948
(2)
SA 678
(AD) the Appellate Division, as it then was, set out the
principles, which are well known. Certain of them bear repeating
“
(3)
The trial Judge has advantages - which the appellate court cannot
have - in seeing and hearing the witnesses and in being steeped
in
the atmosphere of the trial. Not only has he had the opportunity of
observing their demeanour, but also their appearance and whole
personality. This should never be overlooked.
(4)
Consequently the appellate court is very reluctant to upset the
findings of the trial Judge.
(5)
The mere fact that the trial Judge has not commented on the demeanour
of the witnesses can hardly ever place the appeal court
in as good a
position as he was.
(6)
Even in drawing inferences the trial Judge may be in a better
position than the appellate court, in that he may be more able to
estimate what is probable or improbable in relation to the particular
people whom he has observed at the trial.
(8)
Where there has been no misdirection on fact by the trial Judge, the
presumption is that his conclusion is correct; the appellate
court
will only reverse it where it is convinced that it is wrong.
(9)
In such a case, if the appellate court is merely left in doubt as to
the correctness of the conclusion, then it will uphold it.
(10)
There may be a misdirection on fact by the trial Judge where the
reasons are either on their face unsatisfactory or where the
record
shows them to be such; there may be such a misdirection also where,
though the reasons as far as they go are satisfactory,
he is shown to
have overlooked other facts or probabilities.
(11)
The appellate court is then at large to disregard his findings on
fact, even though based on credibility, in whole or in part
according
to the nature of the misdirection and the circumstances of the
particular case, and so come to its own conclusion on the
matter.
(12)
An appellate court should not seek anxiously to discover reasons
adverse to the conclusions of the trial Judge. No judgment can
ever
be perfect and all-embracing, and it does not necessarily follow
that, because something has not been mentioned, therefore it
has not
been considered.”
[39] From
Dhlumayo’s case supra it is clear that the court, in an appeal on
fact, will interfere if there are misdirections of fact
including the
overlooking of other facts and probabilities. This is very similar to
the notion that an award can be set aside if
it is not justifiable
with regard to the reasons given. By referring to gross irregularity
in section 145 the legislature is clearly
contemplating something far
more serious than that. Mistakes of fact and law, subject to certain
exceptions, are insufficient grounds
for interference.
[40] The
reference by Froneman DJP to the constitutional provisions must be
seen in the context of the specific grounds for review
in section
145. My misgivings relate, therefore, to the notion that the grounds
set out in that section are not the only avenues
open to a party to
challenge an award. It was not suggested in this case that the
grounds set out in section 145 were unconstitutional
and they are
fully operative until declared unconstitutional. If there was such a
constitutional challenge the court would have to
evaluate whether the
creation of the CCMA and the other machinery of the Act provides
sufficient justification for the limitation
of the rights of
administrative justice provided in the constitution. Although, as I
have mentioned, it is not necessary for the
purposes of this
judgement to decide the issue, I have grave doubts that the concept
of an award being justifiable as to the reasons
given is an
independent ground of review.
[41] Mr
van Niekerk, who appeared for the appellant, submitted that a
reasoning process can be so flawed and conclusions be drawn
which are
so unsound that such constitutes a gross irregularity. Schreiner J,
as he then was, stated the following in
Goldfields
Investment Ltd and Another v City Council of Johannesburg and Another
1938 TPD 551
at page 560
'It
seems to me that gross irregularities fall broadly into two classes,
those that take place openly, as part of the conduct of the
trial -
they might be called patent irregularities - and those that take
place inside the mind of the judicial officer, which are
only
ascertainable from the reasons given by him and which might be called
latent . . .. Neither in the case of latent nor in the
case of patent
irregularities need there be any intentional arbitrariness of conduct
or any conscious denial of justice . . .. The
crucial question is
whether it prevented a fair trial of the issue. If it did prevent a
fair trial of the issues then it will amount
to a gross irregularity.
In matters relating to the merits the magistrate may err by taking a
wrong one of several possible views
or he may err by mistaking or
misunderstanding the point in issue. In the latter case it may be
said that he is in a sense failing
to address his mind to the true
point to be decided and therefore failing to afford the parties a
fair trial. But that is not necessarily
the case. Where the point
relates only to the merits of the case, it would be straining the
language to describe it as a gross irregularity
or a denial of a fair
trial. One would say that the magistrate has decided the case fairly
but has gone wrong on the law. But if
the mistake leads to the
court's not merely missing or misunderstanding a point of law on the
merits, but to its misconceiving the
whole nature of the enquiry, or
of its duties in connection therewith, then it is in accordance with
the ordinary use of the language
to say that the losing party has not
had a fair trial.'
This
case has been followed in a long line of cases the latest being
Paper,
Printing Wood and Allied Workers Union v Pienaar NO and Others
1993(4) SA 631 (AD) at 638G
.
[42] The
attack by Mr van Niekerk on the award was limited to the second
category mentioned by Schreiner J namely a latent gross irregularity
which arose from the reasons given by the arbitrator. On the
authority of the above mentioned judgements the latent gross
irregularity
had to be such that it prevents a fair trial of the
issues.
[43] Theft
and fraud have always constituted good grounds for dismissal as they
frequently constitute a fundamental breach of the
employment
contract. The cases have in the past emphasised, with good reason,
the breach of the relationship of trust that occurs
where an employee
is guilty of such a misdemeanour. The employer and employee are
parties to an enterprise that produces goods or
services which
generate profits. If one party is dishonest to such a degree that the
enterprise or a part of it is jeopardised then
I am sure that there
has been such a fundamental breach. The courts have frequently
upheld dismissal for dishonesty see
Sappi
Novoboard (Pty) Ltd v Bolleurs (1998) 19 ILJ 784 (LAC) at 786 F,
Standard Bank of SA Ltd v Commission for Conciliation, Mediation
and
Arbitration and Others (1998) 19 ILJ 903 (L C) at 913D, Metcash
Trading Ltd t/a Metro Cash and Carry v Fobb and Another (1998)
19 ILJ
1516 (L C).
[44] It
is not an invariable rule that offences involving dishonesty
necessarily incur the supreme penalty of dismissal. The facts
of
every case must be assessed and the mitigating features taken into
account. In
Boardman
Brothers v CWIU
1998 (3) SA 53
(SUPREME COURT OF APPEAL) at 59G
Smalberger
JA said at 59 G
“
I
agree that on a conspectus of all the relevant circumstances
dismissal was not an appropriate sanction. The employees’
dishonesty
was not such as would inevitably call for their dismissal;
there were mitigating factors present and the working relationship
between
the parties did not suffer irreparable damage as a
consequence of the employees’ conduct.”
See
also
Simba-Quix
Ltd v Rampersad and Another 1993(14) ILJ 1286. J D Group Ltd v De
Beer (1996) 17 ILJ 1103 (LAC).
However,
where the dishonesty complained of is gross, dismissal would be an
appropriate sanction.
[45] The
arbitrator’s powers in this instance emanated from section 193
which provides that he can order reinstatement, re-employment
or
compensation, if he finds that the dismissal is unfair. Despite the
specific reference to fairness as the touchstone for an arbitrator’s
powers Mr van Niekerk submitted that the arbitrator must only
interfere if the sanction is one which no reasonable employer would
have made. He argued that it was a gross irregularity not to have
regard to the ‘reasonable employer test’. He referred us to
Nampak
Corrugated Wadeville v Khoza (1999) 20 ILJ 578 (LAC) 584A
where this court approved of the so-called ‘reasonable employer
test’.
[46] Mr
Tanner argued that the ‘reasonable employer test’ was not of
application given that the commissioner or the Labour Court
was the
sole judge of what was fair in any dismissal. We can only depart from
a decision of this court if we are convinced that such
decision is
clearly wrong. See
Collett v Priest
1931 AD 290
at 301.
In
Bloemfontein
Town Council v Richter
1938 AD 195
at page 232
Stratford J.A. said
'The
ordinary rule is that this Court is bound by its own decisions and
unless a decision has been arrived at on some manifest oversight
or
misunderstanding, that is, there has been something in the nature of
a palpable mistake, a subsequently constituted Court has
no right to
prefer its own reasoning to that of its predecessors - such
preference, if allowed, would produce endless uncertainty
and
confusion. The maxim 'stare decisis' should, therefore, be more
rigidly applied in this the highest Court in the land, than in
all
others.'
[47] It
should be borne in mind that this court in Khoza’s case was
considering whether the dismissal of the respondent constituted
an
unfair labour practice. There is no material difference with an
arbitrator in this matter who has to consider whether the dismissal
was fair. The reasonable employer test has had a chequered history,
which is set out in
P
A K le Roux ‘The Reasonable Employer Test: Some Reflections’
(1990) 4 LLB 29; Brassey The New Labour Law 71-4; Rycroft and Jordaan
A Guide to South African Labour Law Second Edition 197-8.
[48] Its
origins are in English statute law and it must be appreciated that
the Act is quite differently worded, providing as it does
for the
arbitrator to decide if a dismissal was fair. In
SA
Chemical Workers Union and Others v C E Industrial (Pty) Ltd t/a
PANVET (1988) 9 ILJ 639 (IC)
the
court held at page 648D - E
“
The
'reasonable employer' test is derived from English law where it has a
statutory origin in s 57(3) of the Employment Protection
(Consolidation) Act of 1978, reading as follows:
'[T]he
determination of the question whether the dismissal was fair or
unfair, having regard to the reasons shown by the employer,
shall
depend on whether in the circumstances (including the size and
administrative resources of the employer's undertaking) the
employer
acted reasonably or unreasonably in treating it as a sufficient
reason for dismissing the employee; and that question shall
be
determined in accordance with equity and the substantial merits of
the case.'
It
appears from the commentary of Anderman The Law of Unfair Dismissal 2
ed at 153 that the question is not whether a lesser penalty
would
have been appropriate or whether a reasonable employer might have
considered a lesser penalty appropriate but whether it was
within the
range of reasonable responses for the employer to dismiss the
employee in the circumstances.”
[49] What
is clear is that the origins of the ‘reasonable employer’ test in
English law is a statutory provision which specifically
refers in
terms to an employer acting reasonably. In
Tubecon
(Pty) Ltd and National Union of Metalworkers of SA (1991) 12 ILJ 437
(ARB)
the
arbitrator John Brand rejects the test in ringing terms and at page
445B to 445D says the following
“
In
my view the reasonable employer approach is not what is required by
the standard IMSSA terms of reference which require me to determine
whether the discipline meted out by the company was fair. For the
discipline to be fair the rule or norm which is breached must be
a
fair one; it must in fact have been breached and the sanction applied
must be a fair one. Unless one's terms of reference specifically
state otherwise there does not seem to be any justification in equity
why a sanction should be looked at exclusively through the
eyes of an
employer. The correct approach it seems to me is to consider whether
the sanction is fair having regard to existing industrial
relations
common law and norms.”
See
also Brassey The New Labour Law at 71-2 and Employment Law vol 6 no 1
at 11.
[50] I
agree with the above sentiments. It seems to me to be significant
that a statutory arbitrator is also required to find if a
sanction is
fair. He is not there to determine if the sanction was one which a
reasonable employer would have arrived at. I do not
believe that the
‘reasonable employer test’ is part of our law. As I mentioned
above the ordinary rule is that this Court is
bound by its own
decisions and unless a decision has been arrived at on some manifest
oversight or misunderstanding, something in
the nature of a palpable
mistake, a subsequently constituted Court has no right to prefer its
own reasoning to that of its predecessors.
I believe that the
application of the reasonable employer test was such a palpable
mistake which permits us to overrule it. The failure
to take it into
account is therefore not a gross irregularity.
[51] I
revert now to the question as to whether the third respondent
committed a gross irregularity in setting aside the dismissal
of
first respondent by the appellant. If the above mentioned case law
has required that dismissals be upheld where dishonesty has
been
proved it seems relatively clear that dismissal would be warranted
where gross dishonesty is present. In my view the appellant
was quite
justified in dismissing the first respondent. The question which
remains, however, is whether the third respondent misconceived
the
whole nature of the question of a fair sanction and his duties in
connection therewith to such a degree that interference on
review was
warranted.
[52] During
argument examples were bandied around of awards which might
constitute gross irregularities in relation to sanction. These
examples were presented on the basis that a sanction or lack of it
might be so out of kilter with normality that its very imposition
might constitute a gross irregularity. In terms of section 138(9) of
the Act the commissioner is empowered to make any appropriate
arbitration award. It might well be that the commissioner who heard
the matter has taken into account all the evidence and the legal
arguments and recorded them in his award. The stage is then set for
the commissioner to decide on an appropriate sanction. If he
selects
a sanction which is grossly inappropriate can the award be set aside?
Apart from the quantum leap in the inappropriateness
of the
punishment the award might be otherwise unimpeachable. Can one still
be satisfied that the parties have been afforded a fair
hearing? I do
not believe so.
[53] If
there is a yawning chasm between the sanction which the court would
have imposed and that which the commissioner imposed then
it would
seem to me that a gross irregularity has been committed. The use of
the word ‘gross’ indicates that the irregularity
has to be so
egregious that a court can conclude that the function of assessing a
fair sanction has been misconceived. It is always
difficult to define
the extent to which the commissioner has to deviate from the normal
sanction for such to constitute a ‘gross
irregularity’. In
criminal law, appeal courts interfere with the sentence of a lower
court where such induces a sense of shock
or there is an alarming or
disturbing disparity between the sentence imposed by the trial court
and the sentence which the appeal
court is minded to impose. A
commissioner imposing a sanction in an arbitration in terms of the
Act has a similar but not identical
role. Variations within the
continuum of a fair sanction are to be expected and are acceptable.
Where, however, the imposition of
a sanction - or, indeed, the
failure to impose a sanction - is so egregious that it shocks and
alarms the court, then the commissioner
has misconceived his duties.
One of his duties is to determine a fair sanction and there are
parameters within which he can work.
If he strays outside those
parameters to a significant degree he has failed to afford the
aggrieved party a fair hearing. The fact
that precise definition is
not possible of the degree of error before a gross irregularity is
committed, does not mean that the court
should not interfere where it
is convinced such a gross irregularity has taken place.
[54] The
conduct of the first respondent in this matter constituted a fraud on
the appellant and in all probability the insurance
company which
provided cover for the vehicle in question. The fabrication of the
story of the high-jacking amounted to defeating
the ends of justice
and would also involve perjury if false statements were provided to
the police. The abandonment of the vehicle
with the keys in the
ignition was a gross dereliction of first respondent’s duties to
the appellant to preserve its property. It
is clear that first
respondent panicked when he had a further accident after his
catalogue of misadventures in the past. He still
had considerable
time, however, to think over the situation and decide what course of
action to take. It would be wrong to impose
a sanction on the basis
that the car was lost. On the other hand it is a miracle that the
vehicle was not stolen given his reckless
abandonment of it. This
disregard for the rights of the appellant in the vehicle coupled with
his gross dishonesty convinces me
that the sanction imposed by the
third respondent was so egregious and so out of kilter with what this
court would have imposed,
that it constitutes a gross irregularity.
[55] In
the premises I make the following order:
(1)
The appeal succeeds with costs.
(2) The
order of the court
a
quo
is set aside and replaced with an order in the following terms:
“
(a) The
application is granted and the award issued by the third respondent
under CCMA case no KN 7065 is hereby reviewed and set
aside;
(b) The
first respondent is ordered to pay the applicant’s costs.”
C.R
NICHOLSON
Judge
of Appeal
[
56] I
agree with both judgements.
M.T.R.
MOGOENG
Acting
Judge of Appeal
Date
of hearing: August 1999
Date
of judgement: 3 December 1999
Counsel
for Appellant: G. O. van Niekerk SC
Attorneys
for Appellant: Shepstone and Wylie
For
the First Respondent: Mr C. Tanner
Attorneys
for Respondent: Chennels Albertyn and Tanner
No
appearance for the second and third respondents
This
judgement appears on the internet http://www.law.wits.ac.za