Workship 510 v Pretorius and Others (JA26/02) [2003] ZALAC 15 (30 September 2003)

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[2003] ZALAC 15
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Workship 510 v Pretorius and Others (JA26/02) [2003] ZALAC 15 (30 September 2003)

12
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
CASE
NO: JA26/02
In the matter between:
WORKSHOP 510 APPELLANT
and
ANDRIES JOHANNES PRETORIUS 1
ST
RESPONDENT
COMMISSIONER
E.T. VAN KERKEN 2
ND
RESPONDENT
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION 3
RD
RESPONDENT
JUDGMENT
JAFTA AJA
[1] The first respondent
was employed as a carpenter by the appellant until August 2000 when
his employment was terminated by means
of a dismissal. The dismissal
followed a disciplinary hearing at which he was found guilty of three
charges of gross misconduct.
Pursuant to the dismissal, the matter
was taken to the Commission for Conciliation, Mediation and
Arbitration (the CCMA) for conciliation.
When conciliation failed to
resolve the dispute, it was then referred to arbitration under the
auspices of the Commission.
[2] The arbitration proceedings resumed on
30 April 2001 before the second respondent. The award was handed down
on 10 May 2001 and
in terms thereof the dismissal was found to be
substantively unfair. The appellant was ordered to pay the sum of R
71995- 00 as compensation
to the first respondent. Dissatisfied with
the award, the appellant sought to have it overturned in the court a
quo. It brought an
application for review
“on
the grounds set out in
section 145
of the
Labour Relations Act No. 66
of 1995
as read with the Constitution of the Republic of South Africa
and in particular applicant’s right to fair administrative
justice
”. A number of specific grounds for
review were then set out in the founding affidavit. Such grounds
included the allegation that
the commissioner’s award was not
justified in relation to the reasons given for it. In fact, this was
the only ground on which
the constitutional complaint relating to the
right to fair administrative justice was based.
[3] The commissioner’s award together
with other documents including the record of the disciplinary enquiry
were placed before the
court a quo. Although the first respondent did
not file opposing papers to the review application, he however,
lodged an application
seeking to have the award made an order of
court. Meanwhile the review application was, on the directive of the
court a quo, set
down for hearing in the opposed motion court. The
matter came before
Revelas J
who dismissed the application on 5 December 2001 and made the award
an order of court. Pursuant thereto, an application for leave
to
appeal against the dismissal of the review application was lodged.
This application too was dismissed. However, this court granted
the
appellant leave to appeal to it on 11 December 2002.
[4] Subsequent thereto the requisite notice
of appeal was duly filed wherein the grounds of appeal were set out.
The principal basis
upon which the judgment of the court a quo was
challenged is that it erred in dismissing the review application and
that it should
have found that the award was
not
rationally justifiable
in relation to the
reasons given for it. It is worth noting that the above formulation
of the test for review was repeatedly stated
in the appellant’s
heads of argument filed in this court. Furthermore, this was the sole
ground on the basis of which the commissioner’s
award was impugned
before us. Reliance for the above formulation of the test was placed
on two decisions of this court in
Carephone
(Pty) Ltd/ Marcus NO & Others
(1998) 11 BLLR 1093
(LAC) and
Shoprite Checkers (Pty) Ltd/ Ramdaw NO & Others
[2001] 9 BLLR
1011
(LAC).
[5] Before considering whether or not the
award should have been set aside on the basis that it is not
justifiable in relation to
the reasons given for it, I wish to remark
briefly on the test as formulated by the appellant. Firstly, it seems
to me that the appellant’s
formulation could give rise to confusion
of two different tests emanating from two separate sources. Those
tests are commonly known
as the justifiability test and the
rationality test. The former test has its origins in the
Carephone
decision and is located within
s 145
of the
Labour Relations Act (the
LRA), Act 66 of 1995 read with s 33 of the
Constitution as well as item 23 of Schedule 6. This was indeed
confirmed by this court
in its later decision in
Shoprite
Checkers
(supra). In that matter
Zondo
JP
(writing for the court) stated at para
[8]:-
“
[8]
In Carephone this court decided, per Froneman DJP, with Myburgh JP
and Cameron JA concurring, that CCMA awards could only be reviewed
under s 145 and not under s 158(1)(g). It also held that the ground
of review contained in s 145(2)(a)(iii), namely that a commissioner
exceeded his powers, incorporated the constitutional requirement that
an administrative action must be
‘justifiable
in relation to the reasons given for it’
.
This court held that the issuing of an arbitration award by a
commissioner of the CCMA constituted an administrative action as
contemplated
in s 33 of the Constitution read with item 23 of
Schedule 6”.
[6] Therefore in
Carephone,
the justifiability test was firmly anchored in s 145 of the LRA by
incorporating the provisions of s 33 of the Constitution together
with those of item 23 of Schedule 6 into the LRA. The test derives
its formulation from the language employed in s 24 of the Interim
Constitution which was reproduced in exact terms in item 23 of
Schedule 6. The said item constituted a transitional arrangement
pending
the enactment of the
Promotion of Administrative Justice Act
3 of 2000
which came into operation on 30 November 2000. So, as from
30 November s 33 of the Constitution could no longer be taken to
read
in the terms set out in item 23(2)(b) because that item has
fallen away.
[7] On the other hand, the rationality test
is firmly placed in the provisions of s 33 itself without any
reference to item 23 nor
s 145 of the LRA. The latter test was
enunciated by the Constitutional Court in
Pharmaceutical
Manufacturing of SA: in re: Ex Parte President of the Republic of
South Africa
[2000] ZACC 1
;
2000 (2) SA 674
(CC).
In a
unanimous judgment in that case
Chaskalson P
( as he then was) stated at paras [85] and [90]:-
“
[85] It is a requirement of the rule of law that
the exercise of public power by the Executive and other functionaries
should not
be arbitrary. Decisions must be rationally related to the
purpose for which the power was given, otherwise they are in effect
arbitrary
and inconsistent with this requirement. It follows that in
order to pass constitutional scrutiny the exercise of public power by
the Executive and other functionaries must, at least, comply with
this requirement. If it does not, it falls short of the standards
demanded by our Constitution for such action…
[90]
Rationality
in this sense is a minimum threshold requirement applicable to the
exercise of all public power by members of the Executive
and other
functionaries.
Action that fails to
pass this threshold is inconsistent with the requirements of our
Constitution and therefore unlawful. The setting
of this standard
does not mean that the courts can or should substitute their opinions
as to what is appropriate for the opinions
of those in whom the power
has been vested.
As long as the purpose
sought to be achieved by the exercise of public power is within the
authority of the functionary, and as long
as the functionary’s
decision, viewed objectively, is rational, a Court cannot interfere
with the decision simply because it disagrees
with it or considers
that the power was exercised inappropriately”
(Emphasis added but foot notes omitted).
[8] Whilst in
Shoprite
Checkers
this court conceded that the test as
formulated in
Carephone
might be incorrect, it however held that that test shall continue to
apply. This was the court’s view despite the first seeds of
doubt
regarding the correctness of
Carephone
having been planted in
Toyota South Africa
Motors
. In
Shoprite
Checkers
the court gave two main reasons for
not overturning
Carephone
.
Firstly, it said
s 6(2)
of the
Promotion of Administrative Justice
Act requires
that decisions be rationally connected to the reasons
given for them which is similar to the requirement that such
decisions must
be justifiable in relation to the reasons given, as
stated in
Carephone
.
It further mentioned that rationality is accommodated in
justifiability. Secondly, the court came to the conclusion that there
were
sound policy considerations which militated against overturning
Carephone
. In this
regard
Zondo JP
concluded by expressing himself as follows at para [33]:-
“
[33] The Carephone debate has been going on for a long time.
Nevertheless the labour relations community has for some time now
organised
its lives and activities on the basis of that judgment of
this court. I accept that some of the criticism against Carephone is
justified
but, having regard to all the circumstances and in order to
bring about certainty and stability in the law in this area, I think
that that debate must come to an end. In the light of what has been
said above in regard to Carephone and 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”.
[9] Following
Shoprite
Checkers,
I shall approach the present appeal
on the basis that the test of justifiability as laid down in
Carephone
applies to
it. I believe that considerations which moved for the retention of
Carephone
in
Shoprite
Checkers
are still valid. Moreover, we were
not addressed by any of the parties on the continued application of
the
Carephone
test.
Therefore, it would be highly undesirable to tamper with
Carephone
without the benefit of full and proper argument thereon. However,
despite the confusing formulation of the test by the appellant,
it
became apparent during argument before us that the commissioner’s
award was being challenged on the basis that it is not justifiable
in
relation to the reasons given for it.
[10] In her detailed and
comprehensive award, the commissioner dealt separately with each
charge that led to the employee’s dismissal.
She also analysed and
evaluated evidence led by each party before her, either in support or
against each charge. She then proceeded
to make findings on the
acceptance or rejection of such evidence before reaching a conclusion
on whether or not a particular charge
was sustained by the facts.
Full and detailed reasons were given by the commissioner for the
findings she made. In respect of the
first charge the employee was
accused of giving false information to his employer, on 7 August
2000, regarding his state of health
in order to mislead the employer.
Pursuant to the evaluation and analysis of evidence the commissioner
arrived at the conclusion
that the evidence led on behalf of the
employer fell short of proving the charge. She held that the finding
of guilty on that charge,
at the disciplinary hearing, was not
justified because the employer had failed to prove that the appellant
had given false information
regarding his state of health in order to
mislead it.
[11] Regarding the second act of
misconduct, the employee was charged with contravening clause 5.3.20
of the employer’s disciplinary
code which provides that
‘absence
from work for a period not less than three (3) working days without
informing the management of the reason for the absence’
constitutes a grade three offence. The code further stipulated that
grade three offences could lead to a summary dismissal pursuant
to a
disciplinary hearing. On the evidence led during the arbitration
proceedings, it was common cause that the employee had failed
to come
to work for three consecutive working days without informing the
employer of the reasons for his absence. It was also common
cause
that previously and a few days before, the employee had consulted a
specialist physician regarding his health and that he was
hospitalised prior to him resuming duty on 7 August 2000. On that
date he asked for and was granted permission to leave early in
order
to again consult the doctor about his ill-health. He then returned to
work on the fourth working day. He did not communicate
with his
employer during his absence. So, technically he was absent from work
for at least three days without communicating the reasons
therefor to
his employer.
[12] Before the
commissioner, the employee primarily raised two contentions in
respect of the second charge. He claimed that his interpretation
of
the relevant clause placed him outside its ambit in that the clause
in question allowed for the absence of three working days
without
being required to communicate with the employer. He stated further
that he did not communicate with his employer because
the managing
director who released him on 7 August already knew that he was absent
due to illness and that if they wanted to contact
him they could have
done so through his cellular phone or his wife at her place of work.
The commissioner accepted those contentions
by the employee and found
that the relevant clause in the code could reasonably be construed in
the manner contended for by the employee.
She found the clause to be
vague and ambiguous. Consequently, she held that the employer could
not dismiss the employee for a violation
of an ambiguous provision in
the code.
[13] During argument
before us Mr Beaton, who appeared for the appellant, submitted that
he did not challenge the fact that the clause
in question was capable
of being interpreted in the manner contended for by the employee. He
adopted a narrow attack which was confined
to challenging a single
finding by the commissioner. Such finding was to the effect that the
employee’s conduct did not constitute
a breach of the relevant
clause. In this regard the commissioner has stated, in her award,
that the period of absence was within
the period for which
communication was not required, and the code therefore did not
require communication during the employee’s
absence from work. It
would appear that the commissioner adopted the interpretation put on
the clause by the employee hence she came
to that conclusion. On that
interpretation the said conclusion cannot, in my view, be faulted.
However, if the interpretation to
be accorded to the clause is that
the employee who is absent for at least three days is guilty of
misconduct, then the commissioner’s
finding will not be
sustainable. Although the commissioner tacitly accepted the
employee’s interpretation, she did not make a finding
as to which
of the two was the correct interpretation. This was indeed not
necessary because she had already found that the employee
could not
be dismissed for transgressing an ambiguous code.
[14] Finally, as regards
the third charge, the employee was accused of failing to carry out a
valid and reasonable instruction given
to him by his supervisor
relating to the completion of the floor of the Nissan stand. The
charge was described as disobedience. After
evaluating the relevant
evidence, the commissioner found that if the employee were to take an
additional four to five hours in order
to finish the job he was asked
to do, the employee would have been required to work for 12 ½ to 13
½ hours. As a result she concluded
that such long hours were
prohibited by law and the instruction itself was unreasonable in the
light of the employee’s state of
health. This finding by the
commissioner was challenged before us on the basis that her
calculation of the total hours was based
on the incorrect premise. It
was contended that the employee had admitted at the disciplinary
hearing that he could have completed
the job at 15h30. This being the
time at which he left to consult the doctor after he had been engaged
in other work unrelated to
the job he was required to do.
[15] It appears to me
that it is not necessary to determine whether the commissioner’s
finding was supported by the established
facts simply because the
pivotal finding she made in respect of the third charge was that, in
terms of the disciplinary code, it
was not competent for the employer
to impose dismissal as a sanction in the present case. She held the
view that in accordance with
the code a dismissal could only be
imposed for repetition of the same offence and pursuant to a written
warning having been previously
issued. Mr Beaton did not argue that
dismissal was a competent punishment for a first offender who is
guilty of a grade two offence.
In any event the aforesaid finding by
the commissioner was not challenged either in the notice of appeal or
in the heads of argument
filed in this court.
[16] Therefore, I remain
unpersuaded that the award was unjustifiable in relation to the
reasons given for it. Instead I have found
it to have been
impressively reasoned, detailed and comprehensive. Consequently the
award is, in my view, sustained by both the facts
and the applicable
law. I may also add that even if the rationality test was said to be
the one applicable to this case, I would
still have come to the same
conclusion. It follows that the appeal cannot succeed.
[17] In the result the
appeal is dismissed with costs.
__________________
Jafta AJA
I agree.
______________________
Nicholson JA
I agree.
_______________________
Willis JA
Appellant’s counsel:
Adv R.G Beaton
Instructed by: Yusuf Nagdee Attorney
First respondent: Mr S Snyman
Instructed by:
Snyman van der Heever Heyns
Date of hearing: 21
August 2003
Date of judgement: 30
September 2003