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[2006] ZALAC 10
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Department of Correctional Services v Koai and Others (JA39/03) [2006] ZALAC 10 (28 February 2006)
10
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case No JA39/03
In the matter between
The Department of Correctional Services Appellant
and
Moses Koai 1
st
Respondent
Commission for Conciliation,
Mediation and Arbitration (CCMA) 2
nd
Respondent
Thabang T Serero NO 3
rd
Respondent
JUDGMENT
DAVIS AJA
Introduction
[1] First respondent applied to the Labour Court in
terms of
section 145
of the
Labour Relations Act 66 of 1995
(‘
the
Act’
) for the setting aside of an arbitration award issued
by third respondent in his capacity as a commissioner of second
respondent,
the Commission for Conciliation, Meditation and
Arbitration (“
CCMA
”), on 27 November 2000. The
application was launched on the 1
st
February 2001 and was
eventually heard by Barrie AJ on 14 March 2003. Judgment was
delivered on 30 May 2003 in terms of which the
award was set aside
and remitted to the third respondent for hearing subject to certain
directions. With the leave of the Court
a quo
,
appellant now appeals against the judgment.
Factual Background.
[2] First respondent was dismissed on 22 September 1999
after a disciplinary enquiry convened by appellant pursuant to which
he
had been found guilty of two acts of misconduct. The one
allegation of misconduct was that he had left work without
authorisation.
For this act of misconduct he was given a written
warning. The other allegation of misconduct against the first
respondent was
that on 5 April 1999 he had intimidated his superior,
a Mr Reinecke, by threatening to kill him. For the act of
intimidation he
was dismissed. The first respondent was said to have
committed these two acts of misconduct on the same day.
[3] First respondent noted an internal appeal against
these findings. The chairman of the appeal hearing confirmed the
finding of
the disciplinary enquiry, save that it decided to increase
the sanction for the unauthorized absence from work to summary
dismissal.
The effect of this is that the first respondent had two
sanctions of dismissal imposed upon him, one for the misconduct of
absence
from work without authorisation and the other for
intimidation. First respondent disputed the fairness of his dismissal
and referred
the dispute to, initially, conciliation and, later,
arbitration in terms of
section 191
of the Act. A strange feature of
the arbitration proceedings is that, in the first page of the
arbitration award, the third respondent
recorded that the parties
agreed in a pre-arbitration conference that “
the only issue
in dispute was whether the [first respondent’s] dismissal for
alleged intimidation was substantively fair.”
None of the
parties has said that this does not reflect what they agreed. I say
that this is a strange feature because the parties
left out of the
arbitration process the fairness of the sanction of dismissal that
was imposed upon the first respondent by the
chairman of the internal
appeal hearing for the misconduct of absence from work without
authorisation. The effect of this agreement
would be that, even if
the first respondent was found not to have been guilty of the
misconduct of intimidation, it would not be
permissible to order his
reinstatement because the dismissal for the other misconduct would
still stand. It may well be that the
parties have a private agreement
about what would happen to that dismissal if the first respondent was
found not guilty of intimidation.
For that reason the matter might
not be academic. The matter was heard by third respondent who found
that the dismissal of first
respondent was substantively fair and
that dismissal was indeed the appropriate sanction.
[4] The first respondent sought to justify his finding
in the following terms in his award. “
The applicant through
his representative has admitted the commission of the offence at the
disciplinary inquiry to stating that
‘Mr Koai’s
(applicant) intimidation was because no one was able to help him,
even when he stated his reasons and Mr
Reyneke, the supervisor of
personnel, could not help.(as per page 7 on annexure ‘C’)”
“
The applicant was aware of the department’s
disciplinary procedure and given the length of his service and that
the fact that
he was a member of the Police and Prisoners Civil
Rights Union, he ought to have known the correct and proper channels
to utilize
in challenging an unreasonable denial to obtain permission
to leave.
Having evaluated the parties evidence above, I must
now decide whether the dismissal was substantively fair or not, as
alleged by
the applicant.
In my view, the applicant’s admission brings
the enquiry to an end. The applicant has breached the company rule
and he knew
about the rule and in terms of the department’s
disciplinary code dismissal is applicable sanction for breaching the
rule.
Therefore, following from my views expressed above, I
find that the applicant’s dismissal was substantively fair. All
the
facts which are immaterial and irrelevant have been omitted.”
[5] Accordingly, the third respondent’s award was
that the first respondent’s dismissal was substantively fair
and he
dismissed the unfair dismissal claim.
[6] First respondent then instituted review proceedings
in which he contended that third respondent had been biased, that he
had
failed to apply his mind fully to the matter and had ignored
relevant evidence led by first respondent. In a supplementary
affidavit
first respondent contended that third respondent’s
finding had been ‘bizarre unreasonable and unjustifiable in so
far
as (he) failed to apply his mind fully to the evidence before
him.’
[7] Barrie AJ, who heard the review application in the
Labour Court, found that there was no basis on the evidence to
conclude that
first respondent or his representative had conceded
that intimidation had taken place. Accordingly, he found that third
respondent
had erred in reaching such conclusion. The Court a quo
thus found that third respondent had relied heavily on this incorrect
and
irrelevant factual premise, and accordingly, the award was “
not
objectively justifiable in relation to the reasons given for it and
it should potentially be reviewed and set aside”.
The Appeal
[8] Mr Vally, who appeared on behalf of appellant,
submitted that a careful evaluation of the award by third respondent
revealed
that he had identified the issues and assessed the evidence
in a fair, balanced and impartial manner. In support of this
contention
Mr Vally referred to the extract from the third
respondent’s award that has been quoted in paragraph 4 above.
It is not necessary
to quote it again.
[9] Mr Vally also referred to the following passage from
the transcript of the disciplinary hearing:
‘ Mr Maloka said Mr Koai’s intimidation
was because no one was able to help him even when he stated his
reasons and
Mr Reyneke supervisor of personnel couldn’t help’
.
[10] A further aspect of Mr Reyneke’s testimony to
which Mr Vally referred read as follows:
“
What happened on that day, 5 April 1999? At
0.30 that morning I have put, visiting room, I was at the main gate
at that moment to
sign for the keys. … And while I signed for
the keys Mr Koai was standing in the doorway … the main gate
but he said
to me, I’m going to kill you …. Shoot you
and your…”
Mr Vally argued that this evidence was not contradicted
nor challenged during cross examination.
Evaluation.
[11] An examination of the award by third respondent
reveals that he carefully analyzed all of the evidence of each
witness before
proceeding to ‘
an analysis of evidence and
argument
’. Admittedly, this section of the award is thin as
is the concluding paragraph: ‘
in my view the applicant’s
admission brings an end to an enquiry. The applicant has breached the
company rule and he knew
about the rule in terms of the department’s
disciplinary code is the applicable sanction for breaching the rule
(sic)’
[12] The critical question for determination is whether
the decision arrived at by third respondent is justifiable. In
Carephone (Pty)ltd v Marcus NO and others (1998) 19 ILJ 1425 (LAC)
this Court held that
section 145(2)(a)(iii)
, which is the provision
that says that that an arbitration award may be set aside where a
commissioner exceeded his powers, incorporated
the constitutional
requirement that administrative action be justifiable in relation to
the reasons given for it. In formulating
the test of justifiability
in that case Froneman DJP said: ‘
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 arrived at?’
(at para 37).
[13] In
Crown Chickens (Pty)Ltd t/a Rocklands Poultry
v Kapp and others
(2002) 6 BLLR 493
(LAC) at 508 H-I
Nicholson JA
provided further guidance as to the meaning of ‘rational
connection’ when he said “
By rational I understand
that an award of an arbitrator must not be arbitrary and must have
been arrived at by a reasoning process
as opposed to conjecture,
fantasy, guess work or hallucination”
. He later continued
thus: ‘
Such conclusion must be justifiable as to the reasons
given in the sense that it is defensible, not necessarily in every
respect
but as regards the important logical steps on the road to his
order’
.
[14] In summary, it would appear that the essence of the
test for justification concerns an enquiry as to the presence of a
rational
connection between the decision taken, the facts upon which
such decision is based and the reasoning provided for the decision,
which provides evidence for the presence of the requisite rational
connection.
[15] In this case, the evidence on the record as well as
the evidence summarized by the third respondent in his award provides
a
clear justification for a conclusion that appellant had engaged in
an act of intimidation towards his superior, Mr Reyneke. The
only
argument available to first respondent and the one which was accepted
by Barrie AJ is that the decision was justified only
on the basis of
an alleged concession by appellant’s representative. It was
argued on behalf of the first respondent that
no such concession had
been made. In my view, however when one examines the evidence as
summarized by third respondent in his award,
there was a rational
connection between the decision taken and the facts on which such
decision was based. Were it incumbent on
this Court to engage in a
painstaking deconstruction of the express reasoning provided for a
decision in circumstances where there
was a clear, rational
connection between the decision taken and the facts on which the
decision was based, many awards would be
set aside, simply because
the decision of the arbitrator was not expressed with the linguistic
precision and elegance which a court
might require itself. That on
its own is an inadequate reason for the contention that the ultimate
decision arrived at by the third
respondent was not justifiable.
[16] Mr Vally submitted that, were the appellant to be
successful, it did not wish to pursue a cost order against first
respondent.
[17] In the result I make the following order:
1. The appeal is upheld.
2. The order of the Court a quo is set aside and
replaced with the following one:-
“1.
The application is dismissed
.”
Davis AJA
I agree.
Zondo JP
I agree.
Jappie AJA
Appearances:
For the appellant : Adv B Vally
Instructed by : State Attorney
For the respondent : Adv G Malindi
Instructed by : Lebea & Associates
Date of judgment : 28 February 2006