De Beers Consolidated Mines v Commission for Conciliation Mediation and Arbitration and Others (JA68/99) [2000] ZALAC 10 (3 March 2000)

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De Beers Consolidated Mines v Commission for Conciliation Mediation and Arbitration and Others (JA68/99) [2000] ZALAC 10; [2000] 9 BLLR 995 (LAC); (2000) 21 ILJ 1051 (LAC) (7 March 2000)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
No: JA 68/99
In
the matter between
DE
BEERS CONSOLIDATED MINES LIMITED Appellant
and
THE
COMMISSION FOR CONCILIATION, 1
st
Respondent
MEDIATION
AND ARBITRATION
COMMISSIONER
E. HAMBRIDGE 2
nd
Respondent
NATIONAL
UNION OF METAL WORKERS 3
rd
Respondent
OF
S.A.
J.
LUTHI 4
th
Respondent
A.
SENTI 5
th
Respondent
_______________________________________________________________
JUDGEMENT
_______________________________________________________________
ZONDO
AJP
Introduction
[1] This
is an appeal against a judgement of the Labour Court in a review
application brought for the purpose of setting aside a certain
arbitration award which was issued by a commissioner of the
Commission for Conciliation, Mediation and Arbitration in a dispute
between
the appellant, on the one hand, and, the fourth and fifth
respondents, on the other
.
The
appellant carries on the business of exploring
,
evaluating
and mining diamonds. Its head office is situated in Kimberly,
Northern Cape Province. The commission is the first respondent.
The
commissioner who issued the award is the second respondent. The third
and fifth respondents are former employees of the appellant.
The
award was issued in September 1998.
The
facts.
[2] The
fourth and fifth respondents were employed by the appellant as truck
drivers. They were both dismissed by the appellant in
May 1998. The
reason for their dismissal was that they had been found guilty of
fraud. The fraudulent act was that they had claimed
overtime pay for
nine hours when in fact they had not worked during that time. They
had done this by completing forms to the effect
that they were
entitled to such overtime and they had received payment from the
appellant to meet those claims.
[3] The
overtime claim arose out of a trip which the fourth and fifth
respondents had undertaken on the 9
th
April 1998 from Kimberly to Kleinzee to transport drilling equipment.
The fourth and fifth respondents had arrived in Kleinzee at
about
11h00 on the 9
th
April. They finished off-loading their trucks at about 13h30. At
their request, their supervisor, one Mr Bhika, granted a request
from
them that, on their way back to Kimberly, they could stay overnight
at Port Nolloth. It was later discovered that the two had
not driven
at all on the 10
th
April as they were supposed to have done in terms of their
arrangement with Mr Bhika. Instead they had left for Kimberly on the
11
th
April 1998. Despite this, they claimed payment for overtime in
respect of the 10
th
April as well.
[4] The
fourth and fifth respondents (also referred to hereinafter as
‘employee respondents’) were charged with misconduct, found
guilty and dismissed. An internal appeal that they initiated was
unsuccessful. A dispute about the fairness of their dismissal then
arose. They referred the dispute to conciliation. When conciliation
failed, the dispute was referred to arbitration under the auspices
of
the CCMA, the first respondent. The second respondent was appointed
to arbitrate it which she did. Pursuant to the arbitration
proceedings, the second respondent issued an award to the effect that
the dismissal was procedurally fair but substantively unfair.
Pursuant to this finding, she ordered the appellant to reinstate the
employee respondents in its employment with effect from the
date of
the award. That means that the reinstatement order was not made
retrospective. She also ordered that the appellant should
record a
final warning against them. It is against that award that the
appellant subsequently launched a review application in the
Labour
Court. It is the judgement handed down by the Labour Court in that
application which is now appealed against.
Consideration
of the Commissioner’s reasons for the award.
[5] In
finding that the dismissal was substantively unfair, the second
respondent made a positive finding that the employee respondents
were
guilty of fraud. It was because in effect she found that dismissal
was not an appropriate sanction that she concluded that the
dismissal
was not substantively unfair.
[6] It
appears from a reading of the commissioner’s award that the
commissioner perceived the real issue (she refers to it as the
most
important issue before her) as not only having been whether fraud had
been committed, but whether, as a result of such fraud,
“the
trust relationship had broken down to such a degree that it [made]
continued employment intolerable.”
After
saying that this was the most important issue to be decided, she then
proceeded to say that she found that
“the
trust relationship [had] not broken down to such a degree that it
[made] continued employment intolerable.”
At
page 7 up to just before the last paragraph of page 8 of the award
she proceeded to give her reasons for that finding.
[7] The
first reason the commissioner gave for her finding on the extent of
the breakdown of the trust relationship is that the fraud
was not
“committed
within [the fourth and fifth respondent’s] core functions.”
She reasoned that the employee respondents were employed as drivers
and that the completion of claim forms was very
“much
auxiliary to their daily core functions.”
This reason is, in my view, irrational and makes no sense. If this
reasoning is taken to its logical conclusion, any employee could
commit an act of dishonesty with impunity as long as he ensured that
he committed it outside of his core functions. Immediately after
this, she said:
“Should
the truck or the merchandise being transported have been damaged or
destroyed or lost, I would have regarded same in a very
serious
light.”
This statement by the commissioner seems to suggest, in the context
in which it appears, that in that case that would have convinced
her
that the trust relationship had broken down to such a degree that
continued employment would have been intolerable. This is an
extension of the reasoning about core functions which I have dealt
with.
[8] The
second ground on which the commissioner based her conclusion on the
extent of the breakdown of the trust relationship was
that a claim
for overtime payment in the appellant company was subject to a
verification process involving other people before such
a claim could
be approved and, that, for that reason, the fourth and fifth
respondents
“did
not occupy a position of trust in relation to the completion of their
claim forms”.
Quite frankly I cannot understand what point the commissioner was
trying to make in this regard especially if it was intended to
be a
point which was independent of the point made in the preceding
paragraph. The effect of what the commissioner says is either
the
same as the effect of the preceding paragraph or its effect is that
the fact that the appellant had a system for the verification
of
claims by different officials prevented the trust relationship from
breaking down to such a degree as to render continued employment

intolerable. This does not make sense and is devoid of any logic.
[9] The
last ground relied upon by the commissioner was that it was a
mitigation factor in this case that the two employees had long
service. One had 13 and the other 18 years of service. While I have
no doubt that the commissioner’s award cannot stand on the
basis of
the reasons dealt with already above which the commissioner gave, it
is her reliance on the employee respondents’ long
years of service
that I am unable to hold to be unjustifiable or irrational or as
constituting a gross irregularity. Even in cases
of dishonesty, the
length of service of an employee may be taken into account as a
mitigating factor in appropriate cases.
[10] In
par 15 of the as yet unreported judgement of this Court in
Toyota
SA Motors (Pty)Ltd v Radebe & others case
no
DA2/99
,
I said:
“Although
a long period of service of any employee will usually be a mitigation
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.”
I
went on to say in par 16 thereof:
“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 inter alia, an appropriate and fair sanction.”
The
appellant relied heavily on the Toyota judgement. I think the
difference between Toyota and this case is that having regard to
all
the circumstances of the case in Toyota the seriousness of the
misconduct there was so clear that in my view no reasonable person
could in my view have come to the conclusion that the length of
service could possibly be sufficient to render the dismissal an
unfair
sanction. In this case I cannot say the same of this case and
in particular about the commissioner’s decision to regard the
length
of service as a mitigating factor.
[11] I
have noted what my Colleague, Conradie JA, says about length of
service. I do not think for purposes of this case it makes
any
difference whether what one regards as a mitigating factor is length
of service or whether what one regards as providing a mitigation
is
that, because the employee had been with the employer for a long
period without any problems, he is unlikely to repeat his misconduct
and therefore should not be dismissed. I do not think that there
would be any basis for a suggestion that the commissioner in this
case thought that, because the employee respondents had served the
appellant for a long time without any problem, they should be
given
another chance as they were not necessarily likely to repeat the
misconduct.
[12] In
this case the amount which the employee respondents claimed is not
disclosed. What is disclosed is that it was overtime for
a period of
9 hours. The record also does not disclose what the hourly rate of
pay was for the employee respondents. Accordingly
the amount may well
have been a negligible amount. I am saying this as a factor that may
be responsible for my inability place the
misconduct of the employee
respondents in the same category as the misconduct of the employee in
Toyota. Obviously in each case one
must have regard to all the
circumstances of the case.
[13] In
this case I do not overlook certain matters which the appellant
legitimately drew to our attention. These include the fact
that, when
the employee respondents went out on trips, they would usually be
away unsupervised. On those trips they would be responsible
for the
appellant’s trucks as well as very expensive cargo. This, contended
the appellant, placed the employee respondents at a
level at which it
was entitled to expect a high degree of trust. I understand all of
this. Had I been the commissioner who arbitrated
the dispute, maybe I
would not have taken the length of service as a mitigating factor.
But someone else may have done precisely
as the commissioner did -
namely to take it into account as a mitigating factor. The Labour
Court was not hearing the matter as an
appeal against the decision of
the commissioner. It was hearing it as a review application. I am
unable to say that, in taking the
length of service as a mitigating
factor in the circumstances of this case, the commissioner committed
a reviewable irregularity
justifying interference with her award.
[14] In
my judgement, the appeal ought to fail in the light of the above. I
note that my Colleague, Willis JA agrees that on the grounds
referred
to above the appeal ought to fail but should succeed on another
ground. The ground on which my Colleague relies upon for
his
conclusion that the appeal should succeed is that the commissioner
had no power in terms of the Labour Relations Act, 1995 (Act
No 66 of
1995) (
“the
Act”
)
to give a different sanction from that given by the employer just
because she thought a different sanction would have been the
appropriate
one. But that was not the appellant’s case if one has
regard to the grounds of review on which the appellant relied in its
founding
affidavit in the review application.
[15]
The appellant was obviously aware that it had to state its case
clearly so that the respondents, including the employee respondents
and the commissioner, would know what case they had to respond to. In
paragraphs 6.1 upto 6.12 of the founding affidavit the appellant
clearly set out the grounds on which it was asking the Labour Court
to review and set aside the commissioner’s award. The ground
relied
upon by my Colleague, Willis JA, was not included as one of the
grounds. Despite this, the appellant included this ground
in its
heads of argument. That was not permissible because it was not part
of its case on the record. The ground deals with the statutory
powers
of commissioners of the CCMA when they arbitrate disputes. Had the
commissioner known that the Court might decide the case
on the basis
of such a ground, she may well have decided to either oppose the
application in the Court below or the appeal in this
Court or she
might have decided that she needed to place before the Court a quo
some affidavit. Indeed, the CCMA or its director
might have
considered that the matter was of much greater significance than she
might have otherwise thought. In that event she might
have decided
that the CCMA should be represented by Counsel in these proceedings
to argue the point of what the statutory powers
of commissioners are
when they arbitrate disputes. I consider that it is not open to us
to rely on such a ground as a basis for
our decision.
[16] In
the result the order I would make is that the appeal is dismissed
with costs.
RMM
Zondo
Acting
Judge President
CONRADIE
JA
[17] The
commissioner characterised the misconduct as serious. Despite that,
she concluded that the relationship of trust between
the appellant
and the employees had not broken down. Where an employee has
committed a serious fraud one might reasonably conclude
that the
relationship of trust between him or her and the employer has been
destroyed. When the employer then asserts that this has
in fact
happened, it would be startling to hear a commissioner proclaim that,
despite what one might expect and despite what the
employer says in
fact occurred, the relationship of trust had not been broken down. Of
course, a commissioner is not bound to agree
with an employer’s
assessment of the damage done to the relationship of trust between it
and a delinquent employee, but in the
case of a fraud, and
particularly a serious fraud, only unusual circumstances would
warrant a conclusion that it could be mended.
[18] The
facts here are not unusual. They are recited by my brother Willis.
The frauds by the two employees were committed in the
course of a
routine activity which they were expected to perform frequently. When
the vital question of recidivism is considered,
it is relevant to
note that neither employee expressed the slightest remorse. At their
disciplinary enquiry each put up a defence
which was manifestly
dishonest. The appellant took the attitude, and I think quite
correctly, that this was a further indication
that they could no
longer be trusted. The commissioner did not say why she thought that
their further dishonesty during the disciplinary
enquiry was not
gravely inimical to the already damaged trust relationship.
[19] What
makes the commissioner’s finding that the trust relationship had
not broken down more startling is that there was uncontested
evidence
before her that, in the position which the employees occupied, the
appellant had to repose a high degree of trust in them.
For the most
part they worked unsupervised. They carried cargo across
international frontiers. From time to time they carried
diamondiferous
gravel and ore samples. If any of these were lost,
months of exploration might have to be repeated at enormous cost to
the appellant.
The potential loss from misplaced trust in the honesty
of an employee was far greater than that which could have been feared
by the
employer in
Toyota
South Africa Motors (Pty) Ltd v Douglas Radebe and others
(case
no.: DA2/99 judgment delivered on 3.12.99).
[20] The
commissioner next opined that the fraud (which she had earlier found
to be serious) was not really all that serious because
it was
committed outside the employees’ ‘core functions’. She thought
that their ‘core function’ was to manipulate the
controls of
heavy transport vehicles and not to complete overtime returns. This
is not correct, but assuming it to be, the notion
of a ‘core
function’ can have no utility unless it is used to ascertain
whether an employee’s functions are such that a repetition
of the
offence in question is to be feared or not. The core function of a
cashier is to handle money, so that an employer might,
leaving other
factors aside, reasonably fear a repetition of theft on her part. The
core function of an office cleaner is not to
handle money, yet, if
she were caught stealing, it would be fatuous to argue in her favour
that that was not her core function. Her
core function does not
matter. The risk of continuing to employ her, does.
[21] Closely
allied to the notion of the employees’ core function not comprising
the completion of log books, was the idea that
the fact that the
fraud could have been detected was also somehow mitigatory. The
notion is bizarre. If consistently applied, it
would mean that the
better an employer’s detection system is, the less the prospects of
dismissing those caught by the system would
be.
[22] The
commissioner also misunderstood the significance of the employees’
long service. Long service is no more than material
from which an
inference can be drawn regarding the employee’s probable future
reliability. Long service does not lessen the gravity
of the
misconduct or serve to avoid the appropriate sanction for it. A
senior employee cannot, without fear of dismissal, steal more
than a
junior employee. The standards for everyone are the same. Long
service is not as such mitigatory. Mitigation, as that term
is
understood in the criminal law, has no place in employment law.
Dismissal is not an expression of moral outrage; much less is
it an
act of vengeance. It is, or should be, a sensible operational
response to risk management in the particular enterprise. That
is why
supermarket shelf packers who steal small items are routinely
dismissed. Their dismissal has little to do with society’s
moral
opprobrium of a minor theft; it has everything to do with the
operational requirements of the employer’s enterprise.
[23] It
is precisely because dismissal for misconduct is rooted in
operational requirements and not in the need for punishment that
I
consider that the following dicta of Zondo AJP in
Toyota
(supra) must be interpreted in context. He said this:
‘
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 judgment the moment dishonesty
in
a particular case
is of such a serious degree as to be described as gross, then
dismissal is an appropriate and fair sanction.’
I
draw attention to the phrase ‘in a particular case’. The
seriousness of dishonesty – i.e. whether it can be stigmatised as
gross or not – depends not only, or even mainly, on the act of
dishonesty itself but on the way in which it impacts on the
employer’s
business.
[24] The
employees
in
casu
were not dismissed in order to punish them. They were dismissed
because the employer was not prepared to run the risk of employing
them any longer once they had been shown to be dishonest. Long
service is, of course, not entirely irrelevant It is relevant in
determining
whether an employee is likely to repeat his misdemeanour.
An employee who has long and faithfully served his employer has shown
that
he has little propensity for offending. That historical
experience may persuade an employer to accept the risk of continuing
to employ
him now that it is known that he is not as honest as had
been thought. Depending on the circumstances, long service may be a
weighty
consideration. But the risk factor is paramount. If, despite
the
prima
facie
impression of reliability arising from long service, it appears that
in all the circumstances, particularly the required degree of
trust
and the employee’s lack of commitment to reform, continued
employment of the offender will be operationally too risky, he
will
be dismissed.
[25] This
brings me to remorse. It would in my view be difficult for an
employer to re-employ an employee who has shown no remorse.
Acknowledgement of wrong doing is the first step towards
rehabilitation. In the absence of a recommitment to the employer’s
workplace
values, an employee cannot hope to re-establish the trust
which he himself has broken. Where, as in this case, an employee,
over
and above having committed an act of dishonesty, falsely denies
having done so, an employer would, particularly where a high degree
of trust is reposed in an employee, be legitimately entitled to say
to itself that the risk of continuing to employ the offender
is
unacceptably great.
[26] In
the circumstances of this case I consider it to have been irrational
for the commissioner to have found that the employees
did not commit
the dishonesty within the scope of their core functions, that their
long service availed them, or that they were entitled
to profit from
the fact that their dishonesty might readily have been detected by
the employer. She misunderstood the concept of
a core function and
the role of long service in mitigation. She gave no thought to the
moral opprobrium attaching to employees who
knew that their fraud
could, by an analysis of the print-outs of a device attached to one
of the trucks, readily be detected, and
nevertheless committed it.
[27] In
the circumstances of this case, I consider that it was irrational to
have relied on the employees’ long service for having
found their
dismissal unfair. In my judgment the commissioner has ‘ignored or
misapplied legal principles to an extent that is
inappropriate or
unreasonable.’ (See
Standard
Bank of South Africa Ltd v CCMA & others
(1998) 19 ILJ 903 (LC)) By doing so, she failed to make a rational
connection between the material available to her and the conclusion
which she reached. (
Carephone
(Pty) Ltd v Marcus N.O. & others
(1998) 19 ILJ 1425 (LAC) at para. [24]). The award should therefore
have been set aside by the court
a
quo
.
The
appeal succeeds with costs. The order of the court
a
quo
is set aside and replaced by an order reading –
‘
the
arbitrator’s award is set aside with costs’
_________________
CONRADIE
JA
Willis
JA
[28] I
have had the benefit of reading the judgements prepared by my learned
brothers Zondo AJP and Conradie JA. I agree with the
order proposed
by Conradie JA.
[29] My
reasons follow.
[30] The
two employees to whom this appeal relates had both been truck drivers
in the employ of the appellant. One of them had 18
years of service
with this employer, the other had 13 years. One had a clean
disciplinary record. The other had a final written warning
for an
unrelated form of misconduct. They had falsely claimed nine hours’
overtime for 10th April, 1998 when they had not in fact
worked on
that particular day. The day was Good Friday. For this they were
dismissed.
[31] The
reason the claims were for “overtime” was that the employees
would have been paid for 10
th
April, 1998, this being a public holiday. In other words, they
submitted a claim as though they had worked on Good Friday when, in
fact, they had not.
[32] It
is common cause that these two worked on 9
th
April, 1998 and on 11
th
April, 1998. The 11
th
April, 1998 was what is colloquially known as “Easter Saturday”
although in the ecclesiastical calendar it is known as “ Holy
Saturday”, “Easter Saturday” being the Saturday that follows
“ Easter Monday. ” They submitted their claims for the period
9th-11th April, 1998.
[33] Although
these false claims amount to fraud as a matter of law, not too much
should be concluded from this fact. What one is
really dealing with
here is a form of
furtum
temporis.
The
misconduct falls into much the same league as the case where a middle
manager telephones his employer on a particular day claiming
a day’s
sick leave on the basis that he had “ indigestion” whereas the
real reason is that he wished to watch the television
broadcast of
an important rugby match being played in New Zealand at the time. It
is not morally much different from the situation
where a manager is
given a credit card to be used strictly for purposes of entertaining
customers but , on a single occasion, uses
the card to entertain his
wife on their wedding anniversary. And what about the manager who
extends his lunch until 4pm not because
he is doing business all
through this lunch but because he is thoroughly enjoying himself? I
am not convinced that even a majority
of employers would dismiss the
rugby enthusiast, the amorous husband or the lunch-time reveller.
[34] This
misconduct, although it amounts to fraud was not committed as part of
a sustained, systematic, skilfully executed scheme:
the nightmare of
all employers.
[35] On
the other hand, it will normally be unfair to require an employer to
retain in its employment someone correctly found to have
been guilty
of misconduct involving dishonesty and whom it does not trust.( See,
for example,
Anglo
American Farms t/a Boschendal Restaurant v Komjwayo
(1992)
13 ILJ 573 (LAC) at 589B-591A and the authorities therein cited.)
[36] The
employer claimed that, given the peculiar nature of the diamond
industry in which it operates, it needed to maintain an especially
strict policy with regard to any dishonesty on the part of its
employees in order to protect its viability. It requires a certain
boldness to trivialise this concern. Timidity can, of course, be a
disadvantage in those entrusted with the exercise of power.
Nevertheless,
we are dealing here with an employer that employs in
excess of twenty thousand people, that has a annual turnover of
several billion
rand, that earns the country billions of rands of
foreign exchange every year and which pays the state in excess of a
billion rand
in tax every year. Every South African has, in a certain
sense, an interest in the continued viability of this employer. On
the other
hand, the principle of equality before the law requires
that the same principles and rules of law apply equally to all
employers,
regardless of size, importance or influence.
[37]
This
case illustrates very well
,
in
my respectful view
,
why the majority judgement in
County
Fair Foods (Pty) Ltd v Commission for Conciliation Mediation &
Arbitration & Others
(1999)
20 ILJ 1701 (LAC) correctly defers to employers in cases where there
is considerable doubt or a divergence of reasonable opinion
as to the
appropriate sanction. I shall develop my reasoning later.
[38] The
arbitrator took into account the fact- complex. She took into account
the employer’s concern not to be accused of inconsistency
when it
came to dealing with other cases of fraud. She rightly said that one
must look not merely at the label or rubric of the misconduct
but the
underlying factual substratum. She had regard to the disciplinary
records of the employees as well as their length of service
. She
also regarded the fact that the employees did not occupy a position
of trust and the fact that the misconduct “ was not committed
within their core functions” as relevant. I disagree with this last
conclusion. This would not justify interfering with her award.
[39] The
arbitrator also found that the employer had paid insufficient regard
to the provisions of Item 3 in Schedule 8 of the LRA.
Presumably she
was referring to the benefits of counselling.
[40] The
overall impression, upon reading the award, is of a humane,
compassionate, intelligent person, honestly trying to apply her
mind
to the issues. Ordinarily, one cannot reasonably expect much more
from an arbitrator. The appellant, however, alleges
in its
application to review the award that the decision was,
inter
alia
,“unjustifiable”.
[41] The
Court
a
quo ( per
Seady
AJ ) said as follows:
“
It
is not for the Labour Court to decide whether the arbitrator was
correct, but whether the award is justifiable. There is a rational
objective basis justifying the connection made by the arbitrator
between the material before her and the conclusion she reached.
The
outcome can be sustained by the facts found and the law applied.”
[42] I
agree with the Court
a
quo
that
if one is to apply the test as to whether or not there is a rational
objective basis justifying the connection made by the arbitrator
between the material before her and the conclusion she reached, as
set out in
Carephone
(Pty) Ltd
(1998)
19 ILJ 1425 (LAC) at 1435A-F, then one cannot interfere with the
decision of the arbitrator.
[43] The
decision of the arbitrator to impose a final written warning in the
light of the totality of the evidence rather than decide
in favour of
dismissal is one which I am satisfied a number of reasonable people
would have considered fair. This was the same view
of the Court
a
quo.
Accordingly,
one can hardly find that her decision was unjustifiable in the sense
that it was somehow irrational.
[44] In
my view, the basis for setting aside the award lies elsewhere.
[45] Section
193 (1) (a) of the LRA provides that:
“
If
the Labour Court or an arbitrator appointed in terms of this Act
finds that a dismissal is unfair, the Court or the arbitrator
may-
(a)
order the employer to reinstate the employee from any date not
earlier than the date of dismissal;”
[56] Clearly,
a finding by the arbitrator that a dismissal is unfair is a condition
precedent for ordering reinstatement. Put differently,
this means
that unless the arbitrator can make a positive conclusion that a
dismissal was unfair , he or she does not have the power
to order
reinstatement.
[47] A
certain amount of confusion may have arisen in connection with this
issue by reason of the provisions of section 192(2) of
the LRA which
provides that:
“
If
the existence of the dismissal is established, the employer must
prove that the dismissal is fair.”
[48] It
is important to remember that once the facts are established , it is
, ultimately, a matter of opinion whether a dismissal
is fair or not.
It was Terence who exclaimed with time-honoured eloquence and
perspicacity, “
Quot
homines, tot sententiae!
” Opinions, even among reasonable men and women, may differ.
[49] It
is facts and not opinions which are proven. An opinion, by
definition, is not something which is proven (q.v. The Oxford
Dictionary).
[50] The
onus
is thus on the employer to prove the facts upon which it relies for
the dismissal. If the facts upon which the employer relies are
not
proven at the end of the arbitration proceedings, then
cadit
quaestio
,
the employer has failed to prove the fairness of the dismissal. On
the other hand, if the employer does prove the facts upon which
it
relies, then the arbitrator must make a determination as to whether
or not the dismissal is unfair and only if the arbitrator
is so
satisfied may he or she order reinstatement. The arbitrator is not at
large to substitute what he or she considers to be a
fair sanction in
the circumstances. This intention of the legislature is plain from a
reading of section 193 as a whole. Moreover,
an opinion that finds a
particular decision unfair or not is, qualitatively, different from
one concerned with whether it is fair
or not. One hardly need be a
master of language to understand that to find the something is not
unfair is not the same as finding
it is fair.
[51] There
must, in other words, be a degree of deference towards an employer’s
decision. To say this is not to resurrect the “
reasonable employer
” test. It means that the arbitrator must take into account the
prevailing norms and values of our society
, paying particular regard
to the norms and values of the industrial relations community as a
whole and, having done so, may only
interfere with the employer’s
decision to dismiss if satisfied that the decision was unfair.
[52]
I understand Kroon AJ and Ngcobo AJP, as he then was, to be saying
much the same in
County Fair Foods (Pty) Ltd v Commission for Conciliation Mediation &
Arbitration & Others
(
supra
) at 1707G-I and 1713J-1714B respectively. I agree with their views.
[53] I
respectfully disagree with the minority judgement of Conradie JA
where he said that the appeal had to fail if it could not
be
concluded that the decision of the arbitrator was irrational (at
1716I). It is important to note that the
Carephone
judgement
extended the scope of review (see p1434B [ para 31] and 1434E [para33
] of the judgement). It did not purport to limit the
already clearly
understood grounds of review to be found in section 145 of the LRA.
Conradie JA nevertheless agrees that deference
should be shown
towards the disciplinary sanctions imposed by employers ( see at
1717G).
[54] Despite
what was said in the
Carephone
judgement
at 1439C ( para 53), I do not believe that it was intended to convey
that in every case which may come before the Labour
Courts, the only
test for whether an arbitrator, acting as such in terms of the LRA,
exceeded his powers is whether or not his actions
are justifiable in
terms of the reasons given for them. In
Amalgamated
Clothing & Textile Workers Union v Veldspun Ltd
[1993] ZASCA 158
;
1994
(1) SA 162
(A); (1993) 14 ILJ 1431 (A) at 169C and 1435E
respectively the court said at that an arbitrator exceeds his powers
by “ making
a determination outside the terms of the submission”.
Although in
Carephone
it is said at1432J-1433A ( para 25 ) that the meaning accorded to the
corresponding section in the
Arbitration Act No.42 of 1965
“
cannot be taken over without qualification”, it came to this
conclusion because it criticised this interpretation as being
“a
narrow and unconstitutional basis of review.” This clearly
indicates, once again, that the intention of the Court in the
Carephone
case was to extend or widen the existing test for the review of
arbitration awards given under the provisions of the LRA rather than
limit or restrict it. In other words, the
Carephone
test
added to, and did not subtract from, the
Veldspun
test.
The
Veldspun
test
of “ making a determination outside the terms of the submission”
( or referral in the case of arbitrations being conducted
in terms of
the LRA) remains, in my respectful view, good law when it comes to
considering whether an arbitrator has exceeded his
powers. What was
said at 1439B [ para 53 ] of the
Carephone
case
must be understood in relation to the facts of that specific case.
[55] In
my view, in ordinary rule that in voluntary ( or consensual)
arbitrations ( historically there were only voluntary ( or
consensual)
arbitrations) there is no power to review an award on the
basis of a
bona
fide
mistake
of fact or law does cannot apply to reviews in terms of
section 145
(2) (a) (iii) of the LRA. In
Dickenson
& Brown v Fisher’s Executors
1915
AD 166
at 174 the
ratio
for
this rule is given by Lord Halsbury in
Caledonian
Railway Co v Turcan
(1898 AC 256):
“The parties have
selected
the arbitrator as judge of fact and law, and if he be ever so
erroneous in the decision at which he has arrived it is conclusive
upon the parties....; his award is final, and whether it be right or
wrong in point of law, it is a matter with which I am not entitled
to
deal.” ( my emphasis). In the same case Lord Herschell said and is
so quoted in the
Dickenson
& Brown
case (
supra
)
as saying “ The arbitrator whether he has decided rightly or
wrongly is supreme. There is no power to review his decision, whether
he made a mistake in law or whether he has made a mistake in fact.”
The clear intention of the LRA is that commissioners of the
CCMA
appointed to arbitrate labour disputes are not supreme and there are
various obvious reasons why this should not be so.
[56] It
is in my view fundamentally important to accept that very different
principles of law from those applicable to voluntary (
or consensual)
have to apply to compulsory arbitrations despite their similarities
in form.
[57] Although,
in my view , the facts of this case differ in certain important
respects from those in the as yet unreported case of
Toyota South Africa Motors (Pty ) Ltd v
Radebe
& Others
( DA2/99), I need to record that, for the above reasons, I
obviously disagree with Nicholson JA when he says therein:
“
It
seems to me to be significant that a statutory arbitrator is also
required to find if a sanction is fair”.
[58] This
does not appear in the LRA and
Mr
Khumalo
who appears for the respondent concedes that this is so.
[59] In
the
Toyota
judgement,
Nicholson JA refers , with approval, to the award of John Brand
reported in
Tubecon
(Pty) Ltd and National Union of Metal workers of SA
(1991)
12 ILJ 437 (ARB) at 445B to 445D. A few points need to be noted in
regard thereto:
(i) An
IMSSA arbitration is a voluntary referral to arbitration which is
qualitatively different from one held in terms of a referral
to the
CCMA;
(ii)
The IMSSA terms of reference specifically required an arbitrator to
determine whether the dismissal was fair;
(iii)
The approach which Brand suggests is substantially the same as that
to which I refer above, i. e. it is normative, taking into
account a
broad spectrum of societal opinion.
[60] The
hoary, old fear that it will be white, male capitalists who will set
the standard for unfair dismissals may be put to rest.
Any dismissal
offensive to the norms and values which we share collectively, and as
a fair-minded people, will be unfair. Despite
the differences which
arise from culture, tradition, history, class and gender interests
etc, it seems to me to be obvious that we,
as a society, share a
large degree of consensus on basic values: our achievements as a
society would not have been possible without
it. In my view, our
on-going success as a society depends on our extending this process
still further.
[61] Apart
from a strictly literal interpretation of subsections 192(2) and 193
(1) (a) of the LRA, there are, to the extent that
there are any
residual ambiguities, policy considerations which, in my view,
require the above approach:
(i)
Although the principle of control has long been accepted, the best of
our legal tradition is averse to the second- guessing by
outsiders of
decisions of those who have been entrusted to make them. This applies
in criminal law to courts of appeal considering
sentence by a lower
court, in administrative law to the review of decisions of tribunals
and state officials, in property law to
the decisions of owners of
immovable property as to the design of buildings to be erected
thereupon, in family law to the decision
of a husband and wife as to
their choice of matrimonial regime and so on;
(ii)
There is too much confusion in the industrial relations community as
to when a decision to dismiss is likely to be interfered
with. Such
uncertainty is corrosive of economic growth, job creation and the
expansion of opportunities to empower the ordinary people
of the
land.
(iii)
The resources of the state are limited. They are, moreover, not
abundant. It seems that too much time and too much of the state’s
financial resources are being taken up at the CCMA with disputes over
allegedly unfair dismissals. It seems to be fair to take judicial
notice of the fact that the CCMA risks drowning in a sea of such
disputes. Overwhelmingly, these relate to dismissals for misconduct.
(iv)
The time of talented trade union officials absorbed in representing
members who have been dismissed for misconduct should be
set free to
concentrate on improving the quality of life of their members.
(v) A
more relaxed approach by the CCMA to employer’s disciplinary
decisions will encourage employers themselves to become more
relaxed.
I am convinced that fears of being overturned and fears that they
will be accused of “inconsistency” encourage a great
many
employers to “ do it by the book” when it comes to discipline.
The milk of human kindness does not flow in such situations.
A
compassionate exercise of a discretion in favour of an employee does
not necessarily amount to inconsistency.
[62] Although
the arbitrator does not pertinently state that she perceived her
function as one of having to determine a fair sanction,
it is clear
from her award as a whole that this is the position. Indeed, she
could not have made the award she did unless this were
the case.
[63]
In my view, the arbitrator in this particular case misconceived her
powers and, in this case, in so doing, exceeded them. In
this sense,
the award is unjustifiable. For this reason, the award stands to be
set aside in terms of
section 145
of the LRA.
[64] I
would nevertheless urge the employer to reconsider its decision to
dismiss these two employees on compassionate grounds.
DATED
AT JOHANNESBURG THIS DAY OF MARCH 2000.
N.P.WILLIS
JUDGE
OF APPEAL
Counsel
for Appellant : Adv A.I.S. Redding
Attorneys
for Appellant : Perrott, van Niekerk & Woodhouse Inc
Counsel
for Respondent : Mr Khumalo, attorney
Attorney
for Respondent : Maserumule & Partners
Date
of hearing : 7 March 2000
Date
of Judgement : 3 March 2000