Fidelity Cash Management Services v Commission for Conciliation, Mediation and Arbitration and Others (DA 10/05) [2007] ZALAC 12; [2008] 3 BLLR 197 (LAC); (2008) 29 ILJ 964 (LAC) (5 December 2007)

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[2007] ZALAC 12
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Fidelity Cash Management Services v Commission for Conciliation, Mediation and Arbitration and Others (DA 10/05) [2007] ZALAC 12; [2008] 3 BLLR 197 (LAC); (2008) 29 ILJ 964 (LAC) (5 December 2007)

61
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
Held in Johannesburg
Case no: DA 10/05
In
the matter between
Fidelity Cash Management
Service Appellant
And
Commission For Conciliation,
Mediation 1
st
Respondent
And Arbitration
Bess Pillemer NO 2
nd
Respondent
Anthony Conway 3
rd
Respondent
___________________________________________________________
JUDGMENT
___________________________________________________________
Zondo
JP
Introduction
[1] This is an appeal from a judgment
of the Labour Court in a review application that was brought by the
appellant against the respondents
for the review and setting aside of
an arbitration award that had been issued by the second respondent
under the auspices of the
Commission for Conciliation, Mediation and
Arbitration (“
the
CCMA
”), the first
respondent in this appeal. The arbitration award was issued in terms
of the Labour Relations Act, 1995 (Act 66 of
1995) (“
the
Act
”) in respect
of an unfair dismissal dispute between the appellant and the third
respondent.
[2] In terms of the arbitration award
the second respondent (
“the
commissioner
”)
found that the third respondent’s dismissal was substantively
unfair and ordered the appellant to reinstate him “
in
his employment on 19 August 2002 on terms and conditions no less
favourable to him than those which applied on the date of dismissal.
”
She also ordered the appellant to pay the third respondent an amount
of R 66 013,00 (sixty six thousand and thirteen rand) which
she said
represented the third respondent’s salary for the period from the
4
th
September 2001 (when he was dismissed) to 19 August 2002 (when he
would be reinstated). The Labour Court dismissed the appellant’s
review application with costs but granted the appellant leave to
appeal to this Court against that order.
The facts
[3] The appellant is a registered
company. Its business includes ensuring the safe transporting of cash
on behalf of clients who enter
into contracts with it for this
purpose. In August 2001 the appellant had service agreements with
Cash Paymaster Services, Pick ‘n
Pay and NBS in terms of which it
was required to ensure that cash meant for or belonging to these
companies which arrived at Virginia
Airport, Durban, was transported
safely from Virginia Airport to various delivery points.
[4] In order to discharge its
obligations to its clients, the appellant had adopted certain
procedures. It had a control room from
which a controller or
controllers would be able to monitor the appellant’s vehicles as
they went about to ensure service to the
appellant’s clients. The
controller was required to be in constant contact with such vehicles
through a radio. There was a manual,
referred to as the control room
manual, which, in part at least, explained some of the roles of
personnel working in the control
room. The control room manual also
required “
the
schedule crew to keep radio contact
”
with the Radio Controller throughout the day confirming the schedule
services. Two controllers were mentioned in this case. The
one was Mr
Strydom, the other, Mr Ross.
[5] Cash would be brought to Virginia
Airport by an aeroplane. There would be a security guard in the
aeroplane. The controller was
required to be in contact with the
security guard on the aeroplane before the aeroplane could land so as
to inform him whether it
was safe for the aeroplane to land. If the
controller was of the opinion that it was not safe for the aeroplane
to land, he would
inform the security guard on the aeroplane
accordingly and the aeroplane would not land.
[6] Fifteen or ten minutes before an aeroplane carrying
cash could land at Virginia airport, escort vehicles were required to
be at
the airport. These would be vehicles that would accompany the
vehicle that would transport the cash from the airport to where it
was required to be delivered. The position held by the third
respondent in the appellant company was that of planner. Part of his
duties was to prepare duty lists for a number of personnel including
those in the control room. At all times relevant to this matter
he
had also prepared the duty list relating to so-called schedule crews.
There was a dispute between him and the appellant whether
this was
part of his duty. The appellant maintained that it was part of his
duty whereas his version was that it was the Branch Security
Officer’s duty which he carried out because the Branch Security
Officer was neglecting. It would seem to be common cause that the
planner’s work station was the control room. The planner was the
most senior person in the control room.
[7] Apart from the planner and the
controller, there was also the Branch Security Officer. It would seem
that the escort vehicles
fell under the control of the Branch
Security Officer. The Branch Security Officer was senior to the
planner but the planner did
not report to him. The planner reported,
it would seem, to the Branch Manager.
[8] On the 8
th
August 2001 the third respondent, as planner, prepared the necessary
duty lists to show which personnel were to perform what duties
and
where on the 10
th
August 2001. Normally, he would have prepared such duty lists the 9
th
August but on this occasion he prepared the duty lists for the 10
th
August on the 8
th
August because the 9
th
August was to be a public holiday. In respect of the Virginia Airport
he had assigned Messrs Molapo and Peters to provide the back-up
at
the airport on the 10
th
August. Later he changed this by dropping Mr Peters from that team
because Mr Peters was required to appear in court that day. Mr
Peters’ replacement was a Mr Viviers. This meant that Messrs Molapo
and Viviers would provide the back up at the airport.
[9] On the 10
th
August 2001 the third respondent’s computer in the control room was
not working. Accordingly, he spent quite some time outside
the
control room and in the office of one Miss Palla where he was typing
some of his work which had to be typed. He seems to have
arrived at
such office at about 09h25. According to Miss Palla, he did not leave
her office from that time until about 13h15. According
to him, he did
leave the office from time to time to go to the control room and to
fax some of the schedules that he had typed. In
the view I take of
this matter, this divergence in the versions of the two does not make
any difference.
[10] As to how much time the third
respondent spent in Palla’s office, there is also no unanimity
between him and Palla. In this
regard it seems to be common cause
that the third respondent spent very little time in the control room.
The third respondent was
cross-examined extensively about how he
spent the morning and afternoon of the 10
th
August. With regard to the afternoon his evidence seemed to be
unsatisfactory in certain respects but, having regard to the fact
that he was not charged with being away from the control room without
an acceptable explanation, I do not think that the fact that
his
evidence in this regard was unsatisfactory has any effect on the
matter.
[11] During the course of the day on
the 10
th
August – I think after 14h00 – the controller, Mr Strydom,
apparently asked the third respondent as to who were supposed to
provide
back-up at the airport. The third respondent replied that it
was Messrs Peters and Molapo. That Peters was one of the people
required
to provide back up at the airport was factually incorrect
because he had been released to go to court and the third respondent
had
amended the duty list and had put Viviers in Peter’s place. It
was common cause that Strydom had an obligation to look at the duty
list and satisfy himself as to who were supposed to provide the
back-up at the airport and that, if he had done so, he would have
discovered that Viviers and Molapo were the ones who were supposed to
provide such back-up.
[12] Later in the afternoon on the
10
th
August an aeroplane carrying in excess of R1 million in cash landed
at the Virginia airport without proper procedures having been
observed. In particular the backup vehicle and personnel who were
supposed to be there fifteen or ten minutes before the aeroplane
could land were not there when the aeroplane landed. Strydom was
supposed to have informed the security guard on the aeroplane that
the aeroplane should not land before such procedures had been
observed but he failed to do so. The aeroplane, upon landing, was
attacked
by eight robbers who escaped with about R1,2 million in
cash.
[13] Subsequently, the appellant
launched an investigation into what had gone wrong. The internal
investigator employed by the appellant
was a Mr Prince. He asked
certain of the appellant’s personnel to undergo a polygraph test.
The third respondent was also asked
to undergo the test. In terms of
clause 18.3 of the written contract of employment between the
appellant and the third respondent
the third respondent could not
unreasonably refuse to undergo such test when asked by the appellant
to undergo one. Mr Prince told
the third respondent that he was not
obliged to undergo the test. It would seem that the third respondent
asked Mr Prince whether
he was being accused of anything in
connection with the robbery and Mr Prince told him that he was not
being accused of anything.
[14] Mr Prince also admitted under
cross-examination that he did not give the third respondent any
reasons for the request that he
undergo the polygraph test. Mr Prince
admitted under cross-examination that it was unusual at the
appellant’s company for a planner
to be asked to undergo a
polygraph test. In fact Mr Watkins, who was one of the officials of
the appellant who testified in the arbitration,
also conceded that it
was unusual for a planner to be asked to take a polygraph test. It is
common cause that the third respondent
refused to undergo the test.
[15] In due course the appellant
dismissed the controller for his failure to perform his duty which
resulted in the robbery. It offered
to demote the Branch Security
Officer to a lower position but keep him in its employ. The Branch
Security Officer accepted the demotion.
According to the Branch
Security Officer, the demotion resulted in a R 2000,00 drop in his
monthly salary. The appellant also offered
to demote the third
appellant to a lower position which would also have meant a drop in
the third respondent’s salary. He was going
to become an ordinary
security guard. The appellant stated that, if the third respondent
did not accept the demotion, it would institute
disciplinary
proceedings against him. The third respondent rejected the offer of a
demotion and chose to face a disciplinary inquiry.
The
disciplinary inquiry
[16] In
due course the third respondent was called to a disciplinary inquiry.
The allegations of misconduct that he was called upon
to answer were
framed as follows:
“
1.
GROSS
NEGLIGENCE
2. DERELICTION OF DUTY: in that on
the 10
th
August 2001 you failed to ensure that there was an escort vehicle at
Virginia airport when the aeroplane landed at 15h20.
3. in
that on Monday the 13
th
August you failed to comply with sec 18.3 of the contract of
employment signed on the 29
th
of November 2000 by yourself.
4. FAILING
TO COMPLY WITH INSTRUCTIONS: in that you failed (a) to be at the
venue of disciplinary enquiry at the right time as stipulated
on the
LR2 issued to you on the 13
th
August 2001 (b) and as per verbal instruction to be at the manager’s
office on (sic) 18h30 on 16 August 2001.”
[17] No particulars of the allegation
in par 1 were given. The particulars relating to the allegation in 2
speak for themselves. The
allegation of misconduct in 3 above related
to the third respondent’s refusal to undergo a polygraph test. The
allegations of misconduct
in par 4 are clear.
[18] The chairperson of the
disciplinary inquiry was Ms Myers. She found the third respondent
guilty of all the four allegations of
misconduct and dismissed him.
When she testified in the arbitration
,
Ms Myers gave no
particulars relating to the first allegation of misconduct, namely,
that of gross negligence. There were some warnings
that had been
issued against the third respondent previously. Ms Myers said that
she did not take the warnings into account because
the acts of
misconduct of which she found the third respondent guilty were
dismissable offences in themselves.
Conciliation
process
[19] The
third respondent was aggrieved by his dismissal. He regarded it as
unfair. Not unexpectedly, the appellant regarded it as
fair. A
dispute arose between the appellant and the third respondent about
the fairness or otherwise of the dismissal. The third
respondent
referred the dispute to the CCMA for conciliation. When the dispute
could not be resolved through conciliation, he requested
that it be
arbitrated.
The
arbitration proceedings
[20] When
he made his opening statement at the commencement of the arbitration
proceedings, the appellant’s representative said
that the evidence
would show that the third respondent’s duties included “
the
proper monitoring attention, being involved in the activities of that
department, ensuring that the department or control room
was running
in an effective or efficient manner and playing a role of report
ensuring that senior personnel were aware in that department
and if
at any time the department was not running in a correct and efficient
way. Our evidence will show that on the 10
th
of August 2001 and whilst on duty the [third respondent] did not
comply with the requirement of his position. In fact the [third
respondent] failed to properly monitor,
control and play his
required report back role in that department and that his failure to
do so resulted in amongst other things the
irregular functioning of
that department which indirectly resulted in a robbery and which had
massive impact on the [appellant] and
our argument will be that by
these actions the [third respondent’s] relationship with the
[appellant] has irretrievably broken
down.”
The appellant’s representative went on to say that evidence would
be led to show that the third respondent had “
two
final written warnings two other warnings at the time of his
dismissal
”. He
went on to say:
“(f)inally
madam commissioner the [appellant] will show that the [third
respondent’s] action during this period namely failing
to take the
polygraph test and his general attitude towards the disciplinary
proceedings enhanced the notion that his interest towards
the best
interest of the company were somewhat lacking
.”
[21] From the above opening statement
it will be seen that the appellant’s representative did not refer
to an allegation that the
third respondent had failed to arrange for
an escort back up or escort vehicle on the 10
th
August nor did he refer to an allegation that the third respondent
gave Strydom an incorrect name of one of the two security personnel
who would be responsible for the escort back-up at Virginia Airport.
It is also to be noted that the appellant’s representative
did not
in his opening statement refer to an allegation of gross negligence
or to one of dereliction of duty.
[22] After the appellant’s
representative had made his opening statement, the third respondent’s
attorney announced in his opening
statement that he understood that
the charge of gross negligence was a duplication of the second
charge, namely, the one relating
to the third respondent’s failure
to ensure that an escort vehicle was where it was supposed to be
before the aeroplane landed
and that it was one charge. The
appellant’s representative did not say that this was not correct.
If the third respondent’s attorney’s
understanding of the
appellant’s case against the third respondent was wrong, the
appellant’s representative would surely have
put the record
straight. He did not say that the third respondent’s attorney’s
understanding was wrong.
[23] The failure on the part of the
appellant’s representative to say that the third respondent’s
understanding was wrong is very
significant because, in an
arbitration such as the one that happened in this matter, the parties
do not exchange, and, in this case,
did not exchange, pleadings that
would enable each party to know what the other party’s case is. In
cases in which opening statements
are made, they serve to inform both
the arbitrator and the other side what one’s case is. Accordingly,
the failure by the appellant’s
representative to announce that the
third respondent’s attorney’s understanding of the appellant’s
case was wrong has, in all
fairness, to be taken to mean that he was
happy that the third respondent’s attorney’s understanding was
correct.
[24] It would be completely unfair
to allow the appellant to now say that that understanding of its case
by the third respondent’s
attorney was wrong and it should be
allowed to deal with the matter on the basis that the charge of gross
negligence existed separately
on its own and did not relate to the
conduct covered by the second charge. Indeed, when one examines the
appellant’s heads of argument
before this Court, one finds that in
fact, even the second charge of misconduct was not pursued. I say
this because the appellant
no longer relies on the third respondent
having failed to ensure that the escort vehicles were at the places
where they were supposed
to be at Virginia Airport before the
aeroplane landed. Its heads of argument in this Court make no
reference to that charge at all.
[25] The commissioner found the third
respondent not guilty of any of the acts of misconduct of which the
chairperson of the disciplinary
hearing had found him guilty. The
effect of that finding was that whatever disciplinary warnings that
the third respondent had had
at the time of his dismissal were
irrelevant and could not be taken into account. In the light of her
finding, the commissioner concluded
that the dismissal was
substantively unfair. As already stated above, she ordered that the
appellant reinstate the third respondent.
Proceedings
in the Labour Court
[26] The appellant was aggrieved by
the arbitration award that was issued by the commissioner. It then
brought an application in the
Labour Court for the award to be
reviewed and set aside. The review application came before Pillay J
who dismissed the review application.
She found that no proper basis
had been shown for the Labour Court to interfere with the arbitration
award of the commissioner in
this matter. It is against that order of
the Labour Court that the appellant now appeals to this Court.
The
appeal
[27] The
attorney who appeared for the appellant in this Court submitted in
par 1.16 of the appellant’s heads of argument that
“(t)he
misconduct of the third respondent lies in two factors, being his
unexplained absence from the control room for most of
the day thereby
not properly discharge his duties pertaining to the control and
monitoring of Strydom in order to ensure that his
instructions were
properly carried out, and the careless statement by the third
respondent as to who was on duty on the Virginia
Airport escort
initiated the entire problem in the first place. The third respondent
also indicated that the airport was
‘
covered
.”
[28] In par 3.4 of the appellant’s
heads of argument the appellant stated in the second last sentence:
“
The misconduct
lies in the failure to properly monitor the control room, by not
being adequately present in the control room without
a proper
explanation. This is clearly misconduct which was proven
”.
In paragraph 1.20 of the appellant’s heads of argument it is stated
that
“(i)n
addition the third respondent was instructed to undergo a polygraph
test which the third respondent is compelled to do by
virtue of his
contract of employment (paragraphs 16.8 and 18.3) which the third
respondent refused to undergo. The purpose of the
polygraph test was
a normal part of the robbery investigation, of which the third
respondent was informed.
”
[29] In par 1.23 of the appellant’s
heads of argument the appellant stated that
“(a)
failure or refusal to carry out operating procedures and the rules of
the company is a dismissable offence in the appellant.
”
[30] In par 1.24 of the appellant’s heads of argument
a very important statement is made. There the appellant states:
“
The third respondent was
dismissed pursuant to the disciplinary hearing finalised on 23 August
2001, which disciplinary hearing concerned
both the issue of the
third respondent’s misconduct relating to the control room and his
refusal to undergo the polygraph
.”
This statement in the appellant’s
heads of argument is not correct. While it is true that the third
respondent’s refusal to undergo
the polygraph test was one of the
acts of alleged misconduct for which he was dismissed pursuant to the
disciplinary inquiry, it
is not true that he was also dismissed in
connection with “
misconduct
relating to the control room
”.
The third respondent was not charged with nor found guilty of any
misconduct of not being in the control room when he was supposed
to
be in the control room nor was he charged with a failure to supervise
or monitor the control room properly. He was charged with
four
alleged acts of misconduct. The first was gross negligence the
particulars of which were never given. The second was that he
had
failed to ensure that there was an escort vehicle at Virginia Airport
when the aeroplane landed at 15h20 on the 10
th
August. The third was his refusal to undergo the polygraph test. The
fourth related to alleged failures on his part to arrive at
venues of
his disciplinary hearing on time or at all which were not pursued. As
already demonstrated above, the matter must be approached
on the
basis that there was no free-standing charge of gross negligence
because that allegation was covered by the conduct falling
under the
second charge. When the third respondent’s attorney said this in
the arbitration, he was not contradicted.
[31] From the appellant’s heads of
argument it will be seen that the appellant’s case before us on the
strength of which the appellant
sought to justify on appeal the third
respondent’s dismissal relates to alleged acts of misconduct which
are not those for which
the third respondent was in fact dismissed.
In other words on appeal the appellant seeks to justify the third
respondent’s dismissal
on alleged acts of misconduct which did not
form part of the allegations of misconduct of which he was found
guilty in the disciplinary
inquiry and for which he was dismissed.
[32] It is an elementary principle of
not only our labour law in this country but also of labour law in
many other countries that
the fairness or otherwise of the dismissal
of an employee must be determined on the basis of the reasons for
dismissal which the
employer gave at the time of the dismissal. The
exception to this general rule is where at the time of the dismissal
the employer
gave a particular reason as the reason for dismissal in
order to hide the true reason such as union membership. In such a
case the
court or tribunal dealing with the matter can decide the
fairness or validity of the dismissal not on the basis of the reason
that
the employer gave for the dismissal but on the basis of the true
reason for dismissal.
[33] The
appellant seems no longer to continue to justify the dismissal on the
basis of the allegations of misconduct of which the
third respondent
was found guilty and for which he was dismissal. In these
circumstances the appellant must be taken to no longer
rely on the
reasons for dismissal which were given at the time of the dismissal.
If it was still relying on them, they would have
formed part of its
argument on appeal. Those reasons were not part of the appellant’s
argument on appeal. In the light of the above,
the appeal falls to be
dismissed on this ground alone, namely, that the reasons for
dismissal which the appellant relies upon to
justify the dismissal
are not the reasons for which the third respondent was dismissed at
the time.
[34] Ordinarily this conclusion
should mark the end of this judgment. However, in case the appellant
is still entitled to rely on
the reasons for dismissal for which the
third respondent was dismissed, I shall deal with the reasons for
dismissal which were advanced
at the time of dismissal. As I have
already said above, the reasons for which the third respondent was
dismissed are the acts of
misconduct of which he was found guilty in
the disciplinary inquiry and for which the sanction of dismissal was
imposed. As the charge
of gross negligence effectively fell away in
the arbitration, there is no need to say anything more about it. What
is needed is to
consider the allegation which was the second charge,
the allegation that was the third charge and the allegation that was
the fourth
charge.
[35] Ms Myers, who chaired the
disciplinary inquiry, also testified in the arbitration. Myers also
dealt in her evidence with the
third charge relating to the third
respondent’s refusal to undergo the polygraph test. She also dealt
with the fourth charge relating
to the third respondent’s failure
to arrive at certain venues for the disciplinary hearing at specific
times. She provided absolutely
no information with regard to the
first charge, namely, gross negligence. It became clear during her
evidence that in effect she
regarded the second charge as the main
charge. That is the allegation that the third respondent had failed
to ensure that there was
an escort vehicle available as back up at
the airport before the aeroplane could land. It was in relation to
the second charge that
in her evidence she referred to the third
respondent’s evidence about where he was on the day of the
incident. Since Myers was
the person who made the decision to dismiss
the third respondent, her evidence as to the reasons for the sanction
of dismissal are
the reasons on the basis of which the fairness of
the third respondent’s dismissal must be assessed.
[36] It is also important to point
out that, when one has regard to in effect the three charges of
misconduct for which the third
respondent was dismissed, there is no
charge among them that relates to the third respondent not having
spent a sufficient amount
of time in the control room on the 10
th
August nor is there a charge relating to him having given Mr Strydom
wrong information about the person who was to work with Molapo
as
back-up for the airport. That did not feature in the disciplinary
charges that led to his dismissal. It seems to me that the reason
for
dismissal that requires serious consideration is the one relating to
the alleged failure on the part of the third respondent
to ensure
that an escort vehicle was at the airport at the relevant time before
the aircraft landed. However, before I can deal with
that charge, I
need to consider the third and fourth charges which, it seems to me,
can be disposed off rather quickly.
The
allegation relating to the third respondent’s refusal to undergo
the polygraph test
[37] In dealing with this allegation
the terms of clause 18.3 of the third respondent’s contract of
employment with the appellant
must be borne in mind. Clause 18.3
reads thus: “
As
part of the company’s disciplinary or investigation procedure, the
employee may be required to undergo a polygraph test. He shall
not
unreasonably refuse to undergo such test.
”
The provision of clause 18.3 can be mistaken to mean that the third
respondent was obliged to undergo a polygraph test whenever
the
appellant required him to undergo one and that, if he refused, he
would be in breach of clause 18.3 and, therefore, guilty of
misconduct unless he advanced a good reason for his refusal. That,
is, however, not what clause 18.3 means. Clause 18.3 makes an
employee’s refusal to undergo a polygraph test an act of misconduct
only where the refusal is unreasonable. Therefore, in my view,
where
the third respondent refused to undergo such a test, his refusal
would only constitute misconduct if it was shown to have been
unreasonable. Furthermore, with regard to onus, the onus would not
be, and was not, on the third respondent to show that his refusal
was
reasonable but would be or was on the appellant to show that the
refusal was unreasonable. If the appellant failed to discharge
that
onus, the refusal would not have been in breach of clause 18.3 and
would not have constituted an act of misconduct on the third
respondent’s part.
[38] Under cross-examination Mr
Prince was asked whether he had explained to the third respondent
that the reason that he asked him
to undergo the polygraph test was
to deal with “
queries
that your client may raise.”
His answer was: “
No
I did not mention that it was to do with clients. I said it was
merely part of the investigation and that he is not the only one
being subjected
.”
Mr Prince also said that he told the third respondent that he was not
obliged to take the polygraph test. The third respondent’s
attorney
suggested to Mr Prince under cross examination that, if he had
explained to the third respondent his reasons for wanting
him to take
the polygraph test, the third respondent may have received the matter
of the test differently. Mr Prince was then asked
whether he took the
cross-examiner’s point and his answer was “
yes
”.
It was also put to Mr Prince that to require a planner to undergo a
polygraph test was unusual “
in
the circumstances
”
and he answered: “
That
is correct
”.
[39] Whether or not the third
respondent’s refusal in this case was unreasonable must be
determined with reference to the time when
it occurred. In this case
the man who requested the third respondent to undergo the polygraph
test testified that he had told the
third respondent that he was not
obliged to undergo the polygraph test. He also testified that he did
not explain to the third respondent
why the latter as a planner
needed to undergo the polygraph test. Indeed, it was accepted that it
was unusual for a planner to be
asked to undergo a polygraph test.
The investigator testified that he had told the third respondent that
the latter was not being
accused of anything. The reason that the
investigator gave in the witness stand for asking the third
respondent to undergo a polygraph
test was that the appellant wanted
to show the client that it would go to great lengths to prove the
innocence of its employees.
This does not appear to me to be a
legitimate reason for the use of a polygraph test. Those who believe
in the usefulness of a polygraph
test believe that it is an
instrument that can reveal dishonesty. Accordingly, its use for that
purpose may be legitimate. But to
use it for what I would call public
relations purposes does not appear to me to be eminently legitimate.
This, together with the
fact that the investigator did not explain to
the third respondent why he- being a planner- was being asked to
undergo a polygraph
test, the fact that he told him that he was not
obliged to take the test lead me to conclude that the appellant
failed to show that
the third respondent’s refusal was
unreasonable. In the light of this it seems to me that the
commissioner’s decision that the
third respondent was not guilty of
this allegation of misconduct is not only justifiable but also
correct.
The
allegation that the third respondent failed to arrive on time for his
disciplinary hearing at the specific venues.
[40] This allegation related to two
instances as set out in the notice of the disciplinary inquiry. I
propose to deal with the allegation
in respect of both instances a
basis that is common to both. As I understand the position, the
appellant did not pursue this allegation
in the arbitration
proceedings. In any event there was no merit in it. The third
respondent should not have been charged with this
allegation. Failure
to attend your disciplinary hearing is not, generally speaking, an
act of misconduct. It may be argued that it
would be one in a case
where it can be shown that it is part of the employee’s terms and
conditions of employment that, if he is
charged with misconduct, he
is obliged to appear in, or attend, his disciplinary hearing. This is
not such a case. The reason why,
generally speaking, an employee is
not obliged to attend his disciplinary hearing is that a disciplinary
hearing is there to comply
with the
audi
alteram partem
rule
before the employer may take a decision that may affect the employee
or his rights or interests adversely. An employee can make
use of
that right if he so chooses but he can also decide not to exercise
it. However, if he decides not to exercise that right after
he has
been afforded an opportunity to exercise it and a decision is
subsequently taken by the employer that affects him in an adverse
manner, he cannot be heard to complain that he was not afforded an
opportunity to be heard.
[41] The fear that the employer may
take an adverse decision against the employee without the employee
stating his side of the story
is the reason why employees normally
attend their disciplinary hearings. All an employer can do, if an
employee fails to attend his
disciplinary inquiry, is to proceed with
the disciplinary inquiry in the employee’s absence and make such
decision as he considers
to be right in the light of all the evidence
before him. Obviously, if it is no act of misconduct not to attend
your disciplinary
hearing, it cannot be one to arrive late thereat.
The commissioner held that this allegation had no merit and was not
pursued. In
these circumstances it seems to me that the
commissioner’s finding in regard to this allegation is justifiable.
Having dealt with
the two allegations of misconduct which formed part
of the reason for the dismissal of the third respondent, it is now
appropriate
to deal the allegation of misconduct which Myers regarded
as the main charge.
The
allegation that of “Dereliction of Duty”
[42] What
this allegation relates to has to be gathered from the notice to
attend a disciplinary hearing that was served on the third
respondent. In that notice the third respondent was informed that the
second charge he was facing was one of “
DERELICTION
OF DUTY
in
that on the 10
th
August 2001 you failed to ensure that there was an escort vehicle at
VIRGINIA airport when the aeroplane landed at 15h20
.”
This charge, of course, was predicated upon it having been the third
respondent’s duty “
to
ensure that there was an escort vehicle at VIRGINIA airport when the
aeroplane landed at 15h20
.”
Both in the disciplinary inquiry and in the arbitration the third
respondent’s defence to this allegation was that it was not
his
duty as a planner to ensure that there was an escort vehicle at the
airport when the aeroplane landed. The question is: Was it
or was it
not his duty?
Was it the third respondent’s duty to ensure
that there was an escort vehicle at the relevant time at the airport?
[43] In seeking to answer this
question, it needs to be borne in mind that there was a written
contract of employment between the
appellant and the third
respondent. Accordingly, an inquiry into what was or was not the
third respondent’s duty must begin with
the contract of employment
between the parties because a contract of employment is required to
set out, among others, the duties
of the employee and those of the
employer.
[44] The employment contract between
the two parties deals with the third respondent’s duties in clauses
16.1 to 16.10. Those provisions
do not contain anything that
expressly provides that one of the third respondent’s duties was to
ensure that there was an escort
vehicle at the airport before an
aeroplane carrying cash could land. Nothing stated in clause 16 was
relied upon by the appellant
to say that this was one of the third
respondent’s duties. The provisions that may be wide enough include
such a duty may arguably
be clauses 16.2 and 16.3. Respectively they
read thus-:
“
EMPLOYEE’S
POWERS AND DUTIES
As an employee of the company [the third respondent]
shall
16.1 …
16.2. efficiently perform all the reasonable duties
` that the company asks him to perform;
comply with all the company’s reasonable
written directives, rules and regulations.”
[45] With regard to clause 16.2 it
would still have to be shown that the
appellant
had asked the third respondent to perform the duty of
ensuring that the airport vehicle was at the airport at
the relevant
time before it could be said that it was the third
respondent’s duty to ensure that. In other words clause 16.2 did
not by itself
impose this duty on the third respondent. It would only
impose such duty if the third respondent was asked to carry out such
a duty.
Furthermore, clause 16.2 can only be a source of a duty that
is otherwise not covered by the rest of the clauses of the contract
of employment. This has to be so because there would have been no
point for the parties to deal in clause 16.2 (in the terms in which
clause 16.2 is framed) with a duty that is otherwise covered by
another clause of the contract. That would be a superfluity. It is
meant to cover situations which are not covered by other clauses of
the contract.
[46] Furthermore, in order for a duty
to be said to fall within the ambit of clause 16.2 it would have to
be a reasonable duty. Whether
or not a particular duty given to the
third respondent was reasonable would depend upon a number of
factors, including, the question
whether there was somebody else
whose duty this was as well as whether, given the third respondent’s
other duties and responsibilities,
it can be said that it was
reasonable to add to his duties or responsibilities.
[47] It was never put to the third
respondent that even if it was, generally speaking, not his duty to
ensure that the back-up was
at the airport at the relevant time in
terms of other clauses of his contract of employment, he had been
asked to perform such duty
and once he had been so asked, he was, by
virtue of clause 16.2, obliged to perform that duty. The appellant’s
failure to put this
to the third respondent has the effect that it
would be unfair to use it against the third respondent as he has not
had a chance
to deal with it. That this was not put to the third
respondent is understandable because the appellant’s case was that
it was the
third respondent’s normal duty to do so. In these
circumstances it seems to me that there is in law no proper basis to
justify
a conclusion that it was part of the third respondent’s
duties to ensure that a back-up vehicle was provided at the airport
before
the aeroplane could land. In these circumstances I am of the
view that the commissioner was right in concluding that the third
respondent
had not been guilty of misconduct in this regard.
[48] Clause 16.3 is clear. If
reliance was placed on clause 16.3 in support of such duty, a written
directive, rule or regulation
containing such a duty would have to be
shown. The control room manual could arguably be relied upon as
providing written directives,
rules and regulations as contemplated
by clause 16.3 of the contract of employment which entail such a duty
but, as I say elsewhere
in this judgment, it does not.
[49] Clause’ 32.2 and 32.3 read
thus:
“
32.2
In
addition to all the above terms and conditions, the terms and
conditions set out in The (sic) more detailed Personnel Policies
and
Procedures manual, as they are amended, Apply (sic) (copy is
available on request).
This contract of employment shall constitute the
entire contract between the company and the employee. No other
employment contract
or promises apply (sic)”
In a way clause 32.3 appears to be
in conflict with clauses 16.3 and 32.2. No evidence was led to the
effect that the control room
manual falls within the ambit of
“
Personnel
Policies and Procedures Manual”
contemplated in clause 32.2. Accordingly, this matter must be decided
on the basis that the control room manual does not fall within
the
ambit of “
Personnel
Policies and Procedures Manual.”
If one approaches the matter on that basis, there is no doubt that it
cannot be said that it was the third respondent’s duty to
ensure
that there was an escort vehicle at the airport at the relevant time.
However, even if it could be said that the control room
manual can be
said to fall within the Policies and Procedures Manual as
contemplated in clauses 32.3, I think the result would be
the same.
[50] The control room manual as
presented in the arbitration proceedings consisted of four pages. In
the arbitration those pages were
marked as A21, A22, A23 and A24. In
the record in this Court those page numbers could be seen but the
pages on which those numbers
appeared were pages 130, 131, 132 and
133 of the appeal record. The third respondent signed the control
room manual. However, it
is impossible to say whether he signed to
acknowledge receipt thereof or whether he signed to agree with its
contents. At the beginning
of the first page (A21 or 130) on the left
hand side appear the words: “
Control
Room Manual
” and
on the right hand side appears the word: “
Action
”.
These words appear as if to indicate columns. Under the words:
“
Control Room
Manual
follows a
narration under different topics or headings. Under the word “
action
”
or in what appears to be an “
action
”
column appear positions such as “
planner/controller
”
or “
Radio
Controller
” or
“
Branch Security
Officer
” or
Branch Manager
.”
In the column under the words “
Control
Room Manual
” the
duties or roles of the incumbents to the positions given under the
“
action column
”
are spelt out.
[51] Part of the introduction in the
Control Room Manual reads as follows:
“
This Control Room Manual is
issued to all Control Rooms in branch offices and the contents must
be adhered to, to ensure the effective
monitoring regarding the
delivery of services to clients
.”
From the top left side of page A22 or
A131 to the top of the next page, namely, A23 or 132 of the Control
Room Manual the duties or
roles are set out which seem to relate to
the “
Planner/Controller
.”
The first sentence under “
Planner/Controller
”
reads:
“
The Planner/Controller has the
overall responsibility for the effective functioning of the Control
Room and for ensuring that other
staff comply with the contents of
this manual
.”
The next sentence is very important.
It reads: “
Specific
responsibilities are clearly identified in the authorised job
description.
” The
reason why I say that this sentence is very important is because,
quite clearly, the manual says in effect that, if the reader
wants to
see the specific responsibilities of the Planner and those of the
Controller, he must go to the “
authorised
job description
”.
In this matter the appellant failed to produce any job description
that may have been given to the third respondent. The third
respondent testified that he was never given any job description. No
witness called by the appellant testified that he or she had
personal
knowledge that the third respondent had been given a job description.
Indeed, the third respondent even said that he was
not given any
induction in the job of a planner when he took up that position.
[52] Underneath the sentence referred
to above relating to the authorised job description, a list of what
is referred to as daily
activities is given and on the right hand
column appear the words “
Planner/Controller
.”
The suggestion is that those are the “
daily
activities
” of
the “
Planner/Controller
”
which are “
in
addition
” to the
“
overall
responsibility
”
for the Control Room given to the “
Planner/Controller
”
and the “
specific
responsibilities
”
for each one of the Planner and the Controller as will be found in
the authorised job description. I do not propose to set out
those
daily activities. However, I have studied them and there is nothing
therein that says that the duty under consideration is
that of the
third respondent.
[53] After the daily activities of
the “
Planner/Controller
”,
the roles and duties of the Radio Controller, the Branch Security
Officer, Planner/Controller in respect of emergencies, those
of the
Branch Manager are set out. Under “
Emergencies
”
and parallel to “
Planner/Controller
”
at A23 or 132 of the manual the following appears in regard to
operational staff shortages: “
When
staff shortages are identified during the morning deployment
the
Planner must deploy alternative staff to daily schedules as recorded
on the duty roster
”.
[54] It needs to be noted that at
page A22 or 131 of the Control Room Manual the daily activities
assigned to the “
Planner/Controller”
include,
in the first bullet point,
that:
“starting
times and escort duty lists to be maintained”;
it
goes further to say that the
“(s)tarting times list is posted in the notice board to ensure that
staff members are aware of their start time for the following
day.
Contents of duty and escort duty lists are only discussed on the
morning to which they apply.”
Nothing in this bullet point is to the effect that one of the
planner’s duties or activities is what he was alleged to have
failed
to do under the second charge in the disciplinary inquiry.
[55] In the second bullet point at
page A22 or 131 the manual provides that the “
Planner/Controller’s”
daily activities
include to
“(p)ersonally supervise the deployment of staff in the morning to
ensure that the requirements of daily schedules are met
.”
This seems to relate to directing staff to go and work in certain
areas and not the duty that is under consideration.
[56] The third bullet point is
important because at least two witnesses called by the appellant in
the arbitration, namely, Mr Porter
and Ms Myers, relied on it as
conferring upon the third respondent the duty under consideration. It
provides: “
It is
important for the ‘Planner/Controller
’
to be available to
resolve problems that occur during the day to ensure that services to
clients are not disrupted
”.
It is quite clear from this provision that it does not relate to the
duty under consideration. Indeed, those witnesses who sought
to rely
on it in support of the contention that the duty under consideration
was one of the third respondent’s duties were unable
satisfactorily
to answer further questions under cross-examination on the point. The
difficulty that those witnesses had in this
regard was that it was
common cause that the third respondent was within the building at all
relevant times on the day of the robbery
and that all concerned,
including the controller, knew this and he could have been contacted
telephonically if anyone was looking
for him or if there was a
problem and nobody contacted him on the day in question. The other
daily activities assigned to the “
Planner/Controller
”
at A22 or 131 of the manual can simply not conceivably be relied upon
as providing a basis for the duty under consideration.
[57] Part of page A23 or 132 of the
manual deals with, or, relates to, the Radio Controller and not
“
Planner/Controller
”.
The first two paragraphs therein read thus:
“
The Radio Controller is
responsible as per authorised Job Description and must, discuss any
difficulties with duties with the Planner
.
Communication
to or from vehicles and/or clients, which may have an impact on
services, must be recorded in the Occurrence Book
.”
It is significant to note that the
quoted passage effectively refers one to the “
authorised
job description
”
if one wants to establish the responsibilities of the radio
controller. This is in line with the fact that at page A22 or 131
the
manual provides that the “
specific
responsibilities
”
of the “
Planner/Controller
”
are clearly identified in an authorised job description. Accordingly,
it seems that the production of the authorised job description
applicable to the third respondent was important if the Court was to
establish the duties or responsibilities of a planner, and,
therefore, of the third respondent. I have already said that the
appellant did not produce the authorised job description that should
have been given to the third respondent.
[58] Under the topic “
Log
Sheet
” and
against the words “
Radio
Controller
” at
page A24 or 133 of the record the manual has among others the
following paragraphs:
“
Before
departure of the vehicle in the mornings the log sheet must be
initiated by the Radio Controller including departing kilometres,
personnel on b
oard
and testing of radio signals.
Emergencies of whatever nature must be radioed to the
Radio Controller by the schedule crew and this will be recorded on
the log sheet
and an entry in the Occurrence Book.
It is the responsibility of
the
schedule crew
to
keep
radio
contact through-out the day
with
the
Radio
Controller
confirming the schedule services.
Should
the Radio Controller suspect any irregularities
with
a vehicle the previous client contact will be telephoned and also the
next contact client to try to determine the physical location
of the
vehicle.
If
this cannot be determined the Branch Manager is informed and an
Occurrence Book entry is made. The Branch Manager then informs
the
TSO who will then despatch Branch Security to investigate the
incident. Branch Security must keep the Radio Controller informed
on
the progress of the investigation.
If the situation cannot be
resolved by Branch Security the SAPS will be contacted if deemed
necessary”
(underlining
supplied).
[59] None of the provisions of the
Control Room Manual referred to above provide a basis for the
contention that the duty under consideration
was one of the duties of
the third respondent. It seems to me that instead there are certain
provisions of the manual which suggest
that the duty under
consideration may have been one of the duties of someone else such as
the Radio Controller or the Branch Security
Officer. The provision –
quoted above - that the Radio Controller must “
initiate
”
– whatever that means – the log sheet “
before
the departure of the vehicle[s] in the mornings
”
“
including
departing kilometres, personnel and testing of radio signals
”
seems to suggest that the Radio Controller must go to the vehicles
before they depart and see to it that the personnel are there
and
that the vehicles are in good condition for the day. If the radio
controller has to do that it can be expected that he should
perform
the duty under consideration instead of such duty being someone
else’s.
[60] There is also the provision that
the schedule crew have the responsibility to “
keep
radio contact throughout the day with the Radio Controller confirming
the schedule services
.”
What this reveals is that, before the vehicles depart, the Radio
Controller must view them as well as the personnel and, once
they
have departed, the schedule crew is required to keep radio contact
with – not the planner – but the Radio Controller throughout
the
day and they must confirm the schedule services with him – not the
planner.
[61] There is also the provision
that, if the Radio Controller suspects any irregularities with a
vehicle – which seems to me to
include a case where a vehicle is
not where it is supposed to be at any given time– the Radio
Controller is required to telephone
the previous client’s contact
as well as the next client contact “
to
try and determine the physical location of the vehicle
”.
The manual goes on to say that, if the physical location of a vehicle
cannot be determined, the Branch Manager must be informed.
Obviously,
it is the Radio Controller who has to inform the Branch Manager. It
does not say that he must inform the planner. If it
was the planner’s
duty to ensure that the vehicles are where they are supposed to be,
one would have expected the manual to provide
for a role for him when
a particular vehicle cannot be located. It does not.
[62] The Control Room Manual was the
only document the contents of which could conceivably be said to
include further terms and conditions
of employment of the third
respondent in addition to those terms and conditions, including
duties, contained in his written contract
of employment. In this
regard it needs to be borne in mind that clause 32.3 of the contract
of employment provides that
“(t)his
contract of employment shall constitute the
entire
contract between the [appellant] and the [third respondent]. No other
employment contract or promises apply
.”
In the light of this it seems to me that, subject to one
qualification, what the third respondent’s duties were must be
found
within the four corners of the third respondent’s written
contract of employment. The qualification I refer to is that, if a
duty
is not provided for in the written contract but is to be found
in another source to which the contract does refer, then such duty
will be the third respondent’s duty because such source can be
treated as incorporated by reference into the contract of employment.
[63] Much oral evidence was led on
behalf of the appellant in the arbitration proceedings in an attempt
to show what the third respondent
did, what he did not do and what
his duties which, he had allegedly failed to fulfil on the day of the
robbery. In so far as such
evidence related to conduct which did not
form part of the allegations of misconduct for which the third
respondent was dismissed,
such evidence cannot help the appellant’s
case in the determination of the fairness or otherwise of the
dismissal. The evidence
had to relate to the reasons for dismissal.
The oral evidence that should have been led is evidence that could
show that the third
respondent was guilty of the allegations of
misconduct for which he was dismissed. However, I am of the opinion
that oral evidence
to prove that the duty under consideration was one
of the third respondent’s duties was inadmissible on the basis that
it offended
the parole evidence rule as the contract of employment
between the appellant and the third respondent – which set out the
parties’
contractual duties – was in writing. Indeed, it
specifically provided that it was the entire contract between the
parties.
[64] I have had occasion to deal with
this rule in a judgment of this Court in
Denel
(Pty)Ltd v Gerber (2005)26 ILJ 1256 (LAC)
at 1261I – 1266 C (paras 9 – 23 of the judgment). At 1262 (par
10) of the Denel judgment I quoted what Innes CJ said in
Beaton
v Baldwin Bros
1920 AD 312
at 315
.
There the learned Chief Justice said:
“
The general rule is clear: a party to a written
agreement cannot vary its terms by parol evidence. But a party to
such a writing,
which it is sought to be used against him, may lead
evidence to show that the document in question is not a contract at
all, that
it was not intended by the signatories to operate as such,
but was given for another purpose. And when he has thus got rid of
the
writing, he may, if he can, establish another verbal contract as
the true agreement.”
[65] At 1262J of the Denel judgment
reference is made to the fact that in
Traub
v Barclays National Bank Ltd 183(3) SA 619(A)
at 630 H the Appellate Division referred, with approval I may add, to
what was said in Williston on Contracts (3ed) Vol 4 par 647.
There
the author said in part that
“(w)here
the issue in dispute, even between third parties, is what are the
obligations of A and B to one another, and those obligations
are
stated in a written contract, the parol evidence rule is applicable
.”
This is applicable to this case because the issue before the
commissioner in relation to the second charge in the disciplinary
inquiry was whether it was the third respondent’s duty – which he
owed to the appellant – to ensure that the escort vehicle
was in
the area where it was supposed to be at the airport before the
aeroplane could land. As there was a written contract of employment
between the appellant and the third respondent, the parol evidence
rule applied and oral evidence in regard to such duty was
inadmissible.
In this regard it needs to be pointed out that not only
is this a case in which the contract of employment between the
parties is
in writing but also it is a case where the contract goes
further and states in clause 32.3 that
“(t)his
contract of employment shall constitute the entire contract between
the company and the employee. No other employment contract
or
promises apply (sic)
”.
[66] Assuming that the parol evidence
rule did not apply, I proceed to consider what the different
witnesses said about the duty under
consideration in their evidence
in the arbitration.
[67] Mr Porter who had previously
worked as a planner at the time that the third respondent worked as a
controller, was asked whether,
when he was planner, it was his
responsibility “
to
arrange and monitor both these schedules for both escorts and cash in
transit vehicles.
”
His answer was: “
No,
not the escorts
.”
He explained that this was not the position during his time as
planner but things had changed just before he was promoted to
the
position of Branch Security Officer or BSO or as he was leaving the
position of a planner and it became the job of a planner.
Mr Porter
was asked how Mr Conway would have known that “
part
of his duties was to co-ordinate and produce the schedules for both
cash in transit vehicles and escort vehicles
.”
His answer was that escort vehicles were included on the daily duty
sheet whereas in the past they didn’t use to be. He also
said that
it was also in the control room manual. He was asked where in the
control room manual this was. He answered: “
Before
the paragraph after the heading controller/planner. It says daily
duty. This is above daily activities are described below.
Daily duty,
starting times and escort
duty lists to be
maintained etc. The contents of the duty and escort duty lists are
only discussed on the morning to which they apply.
In other words
nobody knows where they are going until the morning
.”
He confirmed that the third respondent signed the control room
manual. The parts of the control room manual that he relied upon
do
not support the assertion that the duty under consideration was one
of the third respondent’s duties.
[68] Mr Porter was asked whether he
had ever informed the third respondent that this was part of his
duty. He answered that the third
respondent was made aware either by
himself or by the Operations Manager “
because
he did it, the duty lists show
”.
Mr Porter said that from the day that the third respondent took over
as planner to the day of the incident no one other than
the third
respondent ever prepared and set out the escort schedules. On the day
of the incident it was the third respondent who had
prepared and set
out the escort schedules.
[69] Mr Porter was asked to explain
the duties of a BSO. He said that as BSO he was “
responsible
for both internal and external security of the company. Internal
being the security of the actual branch itself, external,
overall
responsibility for the escorts, the security systems in the vans,
attending robberies and any other security related matters.
”
He said that he would oversee the control room. He said that, if
there was anything that disrupted “
the
normal escort duties, preventing them from doing what they are doing
I would rely on either the controller or the planner to get
hold of
me.
” Mr Porter
said that it was the responsibility of the planner “
to
make sure all those schedules go out on time to ensure that services
are correctly maintained which is the bread and butter of
our
industry, if that falls down, you will have dissatisfied customers,
you lose clients.
”
[70] At some stage during the
arbitration proceedings the appellant seemed to take the attitude
that by giving Strydom a wrong name
in the terms of one of the
personnel who were supposed to provide back-up at the airport, the
third respondent had contributed to
the robbery that took place on
the 10
th
August. I shall deal with this shortly. There was a suggestion that
this incorrect information that the third respondent gave to
Strydom
caused confusion to Strydom. However, the fact of the matter is that
Strydom was not called as a witness and any evidence
to the effect
that such information caused him any confusion was hearsay and
inadmissible. Indeed, one of the names that the third
respondent gave
to Strydom was correct. There was no evidence that Strydom had asked
Molapo to provide the backup at the airport
and Molapo had refused.
The third respondent testified that he had made an error in giving
Peter’s name in stead of Viviers’.
The appellant sought to make a
mountain out of a molehill in this regard. In my view this was a
genuine error or oversight on the
third respondent’s part. This
error or oversight is understandable because the names that the third
respondent gave to Strydom
were the names of the personnel whom he
had assigned to provide the back-up duty at the airport before the
duty list was amended.
He should have given the names of the
personnel who were assigned to that task after the amendment of the
duty list.
[71] Mr Porter’s
examination-in-chief seems to have been directed at showing that what
the third respondent had done wrong was that
(a) “
he
[had] failed to make sure that the escorts were doing what they were
supposed to be doing
”
and (b) “
that he
[had] failed to inform the controllers of the change in personnel
that day
” and
thereby caused confusion. Mr Porter’s evidence that the third
respondent’s answer to the question about who the back-up
crew for
the airport was, caused confusion must be rejected because on his own
version he was not in the control room when this occurred.
Accordingly, it is hearsay evidence that is inadmissible.
[72] The third respondent was also
cross-examined extensively with regard to what his role in the
control room was. In particular
the appellant’s representative in
the arbitration sought to show that it was the third respondent’s
duty to monitor and supervise
the controller and other personnel in
the control room. The third respondent denied that it was his duty to
monitor the controller.
Once again, I do not think that this aspect
of the matter is of any significance because the third respondent was
not charged with
a failure to monitor or supervise the controller and
other personnel in the control room. That is not what he was
dismissed for.
[73] Mr Porter admitted under
cross-examination that, if there was going to be a problem with
escorts, the first people who would
know would be the controllers. Mr
Porter said that the controller would have had to know where the
escorts were and what they were
meant to do. He further confirmed
that, if there was a problem with the escorts, the controller would
have had to inform either him
or the third respondent. Mr Porter also
conceded under cross-examination that it would have been a very easy
task for the controller
to make sure that there was a vehicle at the
airport – simply by maintaining contact. He also conceded that it
would have been
a very simple thing for the controller to have
ascertained, if there was a problem that he did not have back-up at
the airport. He
conceded that the controller had about 30 to 45
minutes to make sure that there was back-up at the airport. Mr Porter
also said that
the personnel in the van that was sent to the airport
should have been informed not to proceed to the airport until the
back-up had
been sorted out and that that is the controller’s
“
initial duty
”.
[74] Mr Porter’s attention was
drawn to the minutes of a certain meeting of the “
CPS
”.
Item 5 thereof read “
BSO
to monitor as the delivery and collection point has been changed. TSO
to scout the area fifteen minutes before the vehicle arrives.
”
These minutes related to a meeting that had taken place on the 20
th
February 2001. This part of the minutes was to the effect that at
that meeting it was said that the duty under consideration was
the
BSO’s duty and not the third respondent’s duty. He was asked to
reconcile this with his evidence that the duty under consideration
was the third respondent’s duty and he said that this statement
related only to lunch-time. It was put to him that the minutes
did
not anywhere say that this related to lunch-time. It was put to him
that this was a responsibility that was applicable at all
times and
not just during lunch time. He disputed this and maintained that it
only related to lunch-time. The third respondent’s
attorney put it
to Mr Prince under cross-examination that what this part of the
minutes means is that at that meeting it was stated
that the Branch
Security Officer was to monitor the collection point at the Virginia
Airport. Mr Prince admitted that this is what
the minutes of that
meeting said. When soon thereafter the third respondent’s attorney
asked Mr Prince to agree that it was the
BSO’s responsibility to
ensure that “
there
is back-up available for the collection
”,
Mr Prince replied: “
I
don’t know about back-up but to monitor yes
.”
[75] The cross-examination of Mr
Porter seems to have led to him accepting that the third respondent
did not have to check whether
the escorts or back-up vehicles were
where they were supposed to be as this was the controller’s
responsibility but he in effect
said, if a planner was a
conscientious person, he would remind the controller to make sure
that the back-up vehicles were in place.
[76] Mr Porter said that the third
respondent was very much the supervisor of controllers. He was asked
where that was stated. He
then read from page 22 of the control room
manual which in the sixth paragraph on that page provides that it is
important for the
“
planner/controller
”
to be available to resolve problems that occur during the day and
ensure that services to clients are not disrupted. It was then
put to
Mr Porter that nobody had ever suggested that the third respondent
had not been available to deal with problems if they were
brought to
his attention because he was in the building. Mr Porter then said
that he was “
just
pointing out
.”
[77] Mr Porter testified that
“(c)ontrollers are
based on a radio set where they keep
continual
contact with vehicles out on the road and the escort vehicles as
well
. It is
their duty to monitor a schedule. A schedule is where a vehicle would
serve a particular area. Any problems that might occur
and they are
not sure of something then they would refer that matter to the
planner …”.
He
clarified that by “
they
”
he was referring to the controllers. He explained that escort
vehicles are all the bakkies or cars which follow certain schedules.
He also said a schedule would be an armoured vehicle that would
collect cash or drop it. He said that one would then have a second
vehicle that would escort the other one. He said that both vehicles
would be controlled in the control room by means of a schedule
so one
would know where they are at any one time. Mr Porter went on to say
“
with escorts you
are contractually bound to do certain escorts and that was to cover
any vehicle that was carrying Cash Paymaster
Services money. In
between that the controller or the planner could do those escort
vehicles as they deemed fit. That is basically
the function of a
controller”.
[78] On Mr Porter’s evidence I am
of the view that the appellant failed to discharge the onus to prove
that it was the third respondent’s
duty to see to it that the
back-up vehicles were where they were supposed to be before the
aircraft could land on the 10
th
August 2001.
[79] Under cross-examination Mr
Prince conceded that all personnel had been properly allocated to
perform their functions on the day
in question. It was put to Mr
Prince that “
(t)he
planner is in fact responsible for the planning of who is to do what
then …. in terms of the list that he produces …”
.
He was then asked whether this was correct and he answered: “
That
is correct
”. Mr
Prince was then asked to read portions of some document that set out
the relevant procedure that had to be followed or observed
before an
aircraft could land. Mr Prince read a part of the document that
inter
alia
provided that
there would be one TSU, two men armed with R5’s waiting ten minutes
before the plane landed. He was then asked to
explain what this
meant. His answer was: “
There
should be two members as booked on the duty roster standing down ten
minutes before the [aircraft lands]”
.
He was then asked whether that refers to the back up and he answered.
“
That is correct
”.
It was then suggested to him that “
the
controller was required to communicate with the guard on the plane
but only does that when ensuring that the back-up vehicle is
in
position etc
.” He
was then asked whether that was correct. His answer was: “
No
I can’t honestly say if that is correct, no
.”
He was then asked whether he could not dispute that. He answered: “
No
because controller can at any stage check with the aircraft because
he has got to monitor the green vehicle, is it at the airport
on time
or not and then he had to check with the airplane where they are to
make arrangements to make sure they come almost simultaneously
to the
airport
”.
[80] At this stage it was put to Mr
Prince that the third respondent would say that “
the
controller has to make sure that the back up vehicle is placed
because he has to communicate with the guard on the plane to tell
the
guard whether it is in fact safe to land the plane
.
Mr Prince’s answer to this was: “
That
is correct
”. It
was then suggested to Mr Prince that “
that
demands that the controller himself must know that the back-up
vehicle is in place
.”
Mr Prince answered: “
That
is correct
”
[81] I do not propose to deal with
any further evidence led in the arbitration. However, I have
considered it and am satisfied that
it does not prove that the duty
under consideration was the third respondent’s duty. I am of the
opinion that the evidence to which
I have referred above is
sufficient for the conclusion to be reached not only that the
commissioner’s finding that this was not
part of the third
respondent’s duty was reasonable, rational or justifiable but that
it was also correct.
Dealing
with the Commissioner’s reasons
[82] The
commissioner set out a summary of the evidence that was led before
her from page 2 of her arbitration award to the top paragraph
of page
23. Thereafter - from just above the middle of page 23 upto just over
the middle of page 28 of the award she set out the
arguments that
were presented to her by the parties’ representatives. From the
last paragraph at page 28 of the award, she provided
her analysis of
the evidence and argument presented to her.
[83] In considering whether the
commissioner’s award falls to be reviewed and set aside, one needs
to consider what finding she
made with regard to the reasons for the
third respondent’s dismissal. The reasons for the third
respondent’s dismissal are the
acts of alleged misconduct of which
the third respondent was found guilty pursuant to the disciplinary
inquiry. With regard to the
fourth charge, the commissioner said in
her award that it had “
no
merit and was not pursued.
”
In the review application the appellant has not challenged this
finding by the commissioner. Accordingly, the commissioner’s
finding must stand.
[84] With regard to the third charge
– that is the refusal to undergo a polygraph test – the
commissioner found that the third
respondent was “
entitled
to refuse to undergo the polygraph test in terms of clause 18.3 of
his contract of employment
.”
To justify this finding the commissioner went on to say:
“
The contract says that [third respondent] shall
not unreasonably refuse to undergo such a test. A polygraph test is
certainly an invasion
of privacy and Prince conceded he did not give
[third respondent] a reason to take the test. In addition it was not
customary for
a planner or staff who were not part of the robbery to
take the polygraph test. The [appellant] did not allege that [third
respondent]
was involved in the robbery and in my assessment his
refusal to undergo the test was not unreasonable.”
[85] The commissioner said above that
a polygraph test is an invasion of privacy. On the facts of this case
I would not be able to
uphold that statement to support the
conclusion that the refusal was not unreasonable. It seems to me more
appropriate to look at
the scope of application of the employee’s
obligation to undergo such test as provided for in his contract of
employment. In this
case the appellant has throughout approached this
issue as if the third respondent’s contract of employment obliged
him as a general
rule to undergo a polygraph test whenever he was
asked to undergo one. The latest where this can be seen is in the
appellant’s
heads of argument in this Court. As I say elsewhere
herein, that is a misreading of the contract of employment between
the parties.
What the third respondent’s contract of employment
does is to place on the third respondent the obligation to undergo a
polygraph
test only where it would be unreasonable of him to refuse
to undergo the test. In my view, the onus is upon the appellant to
show
in a particular case that it was unreasonable of the appellant
to refuse. Where the appellant fails to discharge that onus, the
refusal
does not constitute an act of misconduct.
[86] Other reasons which the
commissioner gave for concluding that the third respondent’s
refusal to undergo the polygraph test
was not unreasonable were that
Mr Prince, who was doing the investigation and who was the one who
had asked the third respondent
to undergo the test, had stated that
he had not given the third respondent any reason why he had to
undergo the test and that it
was unusual for a planner to be asked to
undergo a polygraph test. When one considers that it was unusual for
a planner to be asked
to undergo a polygraph test and the fact that
Mr Prince did not give the third respondent any reason why, on this
occasion, he, as
a planner, was being asked to undergo the test, it
seems to me that the commissioner’s conclusion that the refusal was
not unreasonable
is quite perfectly justifiable and reasonable. No
basis exists to interfere with it. There is another reason upon which
the commissioner
did not rely to justify her conclusion that the
third respondent’s refusal was not unreasonable. That is that Mr
Prince’s evidence
was that he had told the third respondent at the
time that he was not obliged to undergo the test. All in all there is
no basis to
interfere with the commissioner’s finding with regard
to the reason for dismissal based on the refusal to undergo the
polygraph
test.
[87] With regard to the second
allegation of misconduct, the commissioner was alive to the fact that
what the third respondent had
been charged with in this regard was
that he had failed to ensure that there was an escort vehicle at the
airport before the aeroplane
could land. In support hereof reference
can be made to the fact that at page 30 of her award she said: “
It
was clear that the Planner was the senior person in the Control Room
and had numerous responsibilities relating to the function
of the
Control Room, but it was equally clear that it was not his function
to monitor vehicle crews. This was clearly the responsibility
of the
Controller who would only turn to the [third respondent] as Planner
or Porter as
BSO
when there were problems. It is common cause that the controller,
Strydom, did not ask for assistance or inform either Porter
or [third
respondent] that he had a problem. Watkins says that the Planner has
overall responsibility for the Control Room and attends
to problems
while the Controller is bound to the radio, monitoring the vehicles
.”
At the bottom of page 30 of her award, the commissioner stated in
effect that whatever the role of the planner was in the Control
Room,
it “
did not
detract from the controller’s responsibility to see that the escort
vehicle was in position.
”
At page 31 of the award she said, among other things, that
“(t)he
fault lay directly with the Controller who it appears failed to
monitor the movement of the escort vehicles, the armed vehicle
or the
aeroplane on that day
.”
[88] With regard to the third
respondent’s duties, the commissioner also stated at page 30 of her
award that she was “
unable
to accept [appellant’s] argument that the [third respondent’s]
work description can be found in memoranda (one issued sometime
before [third respondent] became Planner, disciplinary procedures and
the very general Control Room Manual which in any event is
directed
to both Planner and Controller.
”
[89] The case before the commissioner
was one where she was called upon to decide, in relation to the
second charge in the disciplinary
inquiry, whether it was the third
respondent’s duty to ensure that the escort vehicle was positioned
at the right place at the
airport before the aeroplane could land. It
was common cause that the third respondent had not done so. It was
also common cause
that the reason he advanced for not having done so
was that it was not his duty to do so. Accordingly, the issue before
the commissioner
was whether it was the third respondent’s duty to
do so. In its founding affidavit filed in support of the review
application,
the appellant criticised the commissioner for taking
into account the fact that the appellant had failed to produce the
third respondent’s
job description. The appellant said that the job
description was irrelevant and that whether this was one of the third
respondent’s
duties was not one of the issues. The appellant went
on to criticise the commissioner for allegedly having paid too much
attention
to the absence of the job description which - the appellant
contended - was irrelevant.
[90] In my view the appellant’s
criticism of the commissioner for having taken into account the fact
that the appellant had failed
to produce the third respondent’s job
description is wrong, unjustified and misplaced. Indeed, its
contention that the duties of
the third respondent were not in issue
was incorrect. One of the reasons for the third respondent’s
dismissal was the finding by
the chairperson of the disciplinary
inquiry that the third respondent had failed to ensure that an escort
vehicle was positioned
in the right place at the airport on the 10
th
August 2001 before the aeroplane landed. That called for an inquiry
into whether it was the third respondent’s duty to do this.
To
determine what an employee’s duties are in a particular case
requires one to have regard to the terms and conditions of the
contract of employment between such employee and his employer. Any
duty that falls outside the terms and conditions of his contract
of
employment would not be such employee’s duty. For that reason the
commissioner was right to have wanted to see the authorised
job
description.
Some
observations about the Sidumo judgment of the Constitutional Court
[91] At
the time that this appeal was argued in this Court the decision of
the Supreme Court of Appeal in
Rustenburg
Platinum Mines Ltd v CCMA & others (2006) 27 ILJ 2076 (SCA)
had been handed down but that of this Court in
Engen
Petroleum Ltd v CCMA & others (2007) 28 ILJ 1507 (LAC)
had
not been handed down nor had the decision of the Constitutional Court
in
Sidumo and
Another v Rustenburg Platinum Mines Ltd and others
,
as yet unreported, case no CCT 85/06. This Court’s decision in
Engen was handed down on the 4
th
May 2007. The Sidumo case was an appeal to the Constitutional Court
against the decision of the Supreme Court of Appeal in the Rustenburg
Platinum Mines case to which reference has just been made. The Sidumo
decision of the Constitutional Court was handed down on the
5
th
October 2007.
[92] It is not necessary to refer to
the background to the issues dealt with in the Sidumo case because
that background can be found
in the Sidumo judgment as well as in the
Engen and the Rustenburg judgments. It is sufficient for present
purposes to make a few
observations about the Sidumo judgment of the
Constitutional Court. The first is that, in line with the views of
this Court as expressed
in
Engen
Petroleum Ltd v CCMA
& others (2007) 28 ILJ 1507 (LAC)
and
Chemical Workers
Industrial Union & others v Algorax (Pty) Ltd (2003) 24 ILJ 1917
(LAC)
, the
Constitutional Court decided in Sidumo that, when a commissioner of
the CCMA is called upon to decide whether dismissal as a
sanction is
fair in a particular case he or she must not apply the reasonable
employer test, must not in any way defer to the employer
and must
decide that issue on the basis of his or her own sense of fairness.
The second is that, when a commissioner of the CCMA
conducts an
arbitration in terms of the compulsory provisions of the Act, he or
she is conducting an administrative action. The third
is that the
Promotion of Administrative Justice Act 3 of 2000 (“
PAJA
”)
does not apply to such administrative action. The fourth is that
justifiability of administrative action in relation to the reasons
given for it as propounded in
Carephone
(Pty)Ltd v Marcus NO and others
1999 (3) SA 304
(LAC)
as a ground of review of CCMA arbitration awards under sec 145 of the
Act does not apply any more. The fifth is that the grounds
of review
set out in sec 145 of the Act are suffused by the criterion of
reasonableness as dealt with in
Bato
Spar Fishing (Pty)Ltd v Minster of Environmental Affairs and Tourism
& others
[2004] ZACC 15
;
2004 (7) BCLR 687
(CC)
and
the constitutional requirement that CCMA arbitration awards must meet
is that they must be lawful, reasonable and procedurally
fair. To
this end a CCMA arbitration award is required to be reasonable
because, if it is not reasonable, it fails to meet the constitutional
requirement that an administrative action must be
reasonable
and, once it is not reasonable, it can be reviewed and set aside. I
deal with this issue of unreasonableness of a CCMA arbitration
award
as a ground of review later in this judgment.
The
approach of a CCMA commissioner when deciding whether dismissal as a
sanction in a particular case is fair or unfair.
[93] I
have already said above that, in line with the decision of this Court
in Engen and Algorax, the Constitutional Court decided
in Sidumo that
the reasonable employer test must not be applied and there should be
no deference to the employer’s choice of a
sanction when a CCMA
commissioner decides whether dismissal as a sanction is fair in a
particular case. Indeed, both in Engen and
in Sidumo this Court and
the Constitutional Court, respectively, said that the commissioner
must decide that issue in accordance
with his or her own sense of
fairness. (see Engen at par 117 at 1559 A, - par 119 at 1559 H-I; par
126 at 1562 C-D, par 147; Sidumo’s
case at paras 75 and 76.) In
par 75 in the Sidumo case the Constitutional Court, inter alia, said:
“
Ultimately, the
commissioner’s sense of fairness is what must prevail and not the
employer’s view
.”
At par 76 the Constitutional Court quoted a passage from Engen which
inter alia
contained a statement to the effect that unions “
can
ventilate all issues about their grievances in regard to such
dismissals in that forum before a third party, who can listen to
all
sides of the dispute and, using his own sense of what is fair or
unfair, decide whether the dismissal is fair or unfair.”
[94] In terms of the Sidumo judgment,
the commissioner must:
(a) “
take
into account the totality of circumstances” (
par
78);
(b) “consider
the importance of the rule that had been breached
”
(par 78);
(c) “
consider
the reason the employer imposed the sanction of dismissal, as he or
she must take into account the basis of the employee’s
challenge to
the dismissal”
(par 78);
(d) consider
“the harm caused by the employee’s conduct”
(par 78);
(e) consider
“whether additional training and instruction may result in the
employee not repeating the misconduct
”
(f) consider
“the effect of dismissal on the employee
”
(par 78);
(g) consider the employee’s service record.
The Constitutional Court emphasised that this is not an
exhaustive list. The commissioner would also have to consider the
Code of
Good Practice: Dismissal and the relevant provisions of any
applicable statute including the Act. In this regard sec 188 and
192(2)
of the Act will usually be of relevance. Sec 188(1) provides
in effect that a dismissal that is not automatically unfair is unfair
if the employer fails to prove the matters stated therein. Sec 182
enjoins a person considering whether a dismissal is unfair to
take
into account provisions of the relevant Code of Good Practice. Sec
192(2) is the provision that places the onus on the employer
to prove
that the dismissal is fair.
[95] Once the commissioner has
considered all the above factors and others not mentioned herein, he
or she would then have to answer
the question whether dismissal was
in all of the circumstances a fair sanction in such a case. In
answering that question he or she
would have to use this or her own
sense of fairness. That the commissioner is required to use his or
her own sense of justice or
fairness to decide the fairness or
otherwise of dismissal does not mean that he or she is at liberty to
act arbitrarily or capriciously
or to be
mala
fide
. He or she is
required to make a decision or finding that is reasonable.
Sidumo’s
test of unreasonableness as a ground of review for CCMA arbitration
awards.
[96] The
Constitutional Court has decided in Sidumo that the grounds of review
set out in sec 145 of the Act are suffused by reasonableness
because
a CCMA arbitration award, as an administrative action, is required by
the Constitution to be lawful, reasonable and procedurally
fair. The
Court further held that such an award must be reasonable and if it is
not reasonable, it can be reviewed and set aside.
[97] The Constitutional Court further
held that to determine whether a CCMA commissioner’s arbitration
award is reasonable or unreasonable,
the question that must be asked
is whether or not the decision or finding reached by the commissioner
“
is one that a
reasonable decision maker could not reach”
.
(par 110 of the Sidumo case). If it is an award or decision that a
reasonable decision-maker could not reach, then the decision
or award
of the CCMA is unreasonable, and, therefore, reviewable and could be
set aside. If it is a decision that a reasonable decision-maker
could
reach, the decision or award is reasonable and must stand. It is
important to bear in mind that the question is not whether
the
arbitration award or decision of the commissioner is one that a
reasonable decision maker
would
not reach but one
that a reasonable decision maker
could
not reach. The Constitutional Court stated that, where a Court must
decide the reasonableness or otherwise of a decision, ‘(a)
judge’s
task is to ensure that the decisions taken by administrative agencies
fall within the bounds of reasonableness as required
by the
Constitution
.”
(par 109).
[98] It will often happen that, in
assessing the reasonableness or otherwise of an arbitration award or
other decision of a CCMA commissioner,
the Court feels that it would
have arrived at a different decision or finding to that reached by
the commissioner. When that happens,
the Court will need to remind
itself that the task of determining the fairness or otherwise of such
a dismissal is in terms of the
Act primarily given to the
commissioner and that the system would never work if the Court would
interfere with every decision or
arbitration award of the CCMA simply
because it, that is the Court, would have dealt with the matter
differently. Obviously, this
does not in any way mean that decisions
or arbitration awards of the CCMA are shielded from the legitimate
scrutiny of the Labour
Court on review.
[99] In my view Sidumo attempts to
strike a balance between, two extremes, namely, between, on the one
hand, interfering too much
or two easily with decisions or
arbitration awards of the CCMA and, on the other refraining too much
from interfering with CCMA’s
awards or decisions. That is not a
balance that is easy to strike. Indeed, articulating it may be
difficult in itself but applying
it in a particular case may tend to
even be more difficult. In support of the statement that Sidumo seeks
to strike the aforesaid
balance, it may be said that, while on the
one hand, Sidumo does not allow that a CCMA arbitration award or
decision be set said
simply because the Court would have arrived at a
different decision to that of the commissioner, it also does not
require that a
CCMA commissioner’s arbitration award or decision be
grossly unreasonable before it can be interfered with on review –
it only
requires it to be unreasonable. This demonstrates the balance
that is sought to be made. The Court will need to remind itself that
it is dealing with the matter on review and the test on review is not
whether or not the dismissal is fair or unfair but whether
or not the
commissioner’s decision one way or another is one that a reasonable
decision-maker could not reach in all of the circumstances.
[100] The test enunciated by the
Constitutional Court in Sidumo for determining whether a decision or
arbitration award of a CCMA
commissioner is reasonable is a stringent
test that will ensure that such awards are not lightly interfered
with. It will ensure
that, more than before, and in line with the
objectives of the Act and particularly the primary objective of the
effective resolution
of disputes, awards of the CCMA will be final
and binding as long as it cannot be said that such a decision or
award is one that
a reasonable decision maker could not have made in
the circumstances of the case. It will not be often that an
arbitration award
is found to be one which a reasonable
decision-maker could not have made but I also do not think that it
will be rare that an arbitration
award of the CCMA is found to be one
that a reasonable decision-maker could not, in all the circumstances,
have reached.
[101] Nothing said in Sidumo means
that the grounds of review in sec 145 of the Act are obliterated. The
Constitutional Court said
that they are suffused by reasonableness.
Nothing said in Sidumo means that the CCMA’s arbitration award can
no longer be reviewed
on the grounds, for example, that the CCMA had
no jurisdiction in a matter or any of the other grounds specified in
sec 145 of the
Act. If the CCMA had no jurisdiction in a matter, the
question of the reasonableness of its decision would not arise. Also
if the
CCMA made a decision that exceeds its powers in the sense that
it is
ultra vires
its powers, the reasonableness or otherwise of its decision cannot
arise.
[102] What is the difference between
the approach enunciated in Carephone and that enunciated in Sidumo
with regard to the grounds
of review set out in sec 145 of the Act?
The difference seems to me to be two-fold. Firstly, Carephone sought
to construe sec 145
so as to bring it in line with a constitutional
imperative at the time which was to the effect that an administrative
action had
to be justifiable in relation to the reasons given for it
whereas Sidumo seeks to construe sec 145 so as to meet the current
constitutional
requirement that an administrative action must be
lawful, reasonable and procedurally fair. It seems to me that, even
if there may
have been a debate under Carephone and prior to Sidumo
on whether a commissioner’s decision for which he or she has given
bad reasons
could be said to be justifiable if there were other
reasons based on the record before him or her which he or she did
not articulate
but which could sustain the decision which he or she
made, there can be no doubt now under Sidumo that the reasonableness
or otherwise
of a commissioner’s decision does not depend – at
least not solely - upon the reasons that the commissioner gives for
the decision.
In many cases the reasons which the commissioner gives
for his decision, finding or award will play a role in the subsequent
assessment
of whether or not such decision or finding is one that a
reasonable decision-maker could or could not reach. However, other
reasons
upon which the commissioner did not rely to support his or
her decision or finding but which can render the decision reasonable
or
unreasonable can be taken into account. This would clearly be the
case where the commissioner gives reasons A, B and C in his or
her
award but, when one looks at the evidence and other material that was
legitimately before him or her, one finds that there were
reasons D,
E and F upon which he did not rely but could have relied which are
enough to sustain the decision.
[103] In
Pharmaceutical
Manufacturers of SA in Re Ex Parte President of the RSA
[2000] ZACC 1
;
2000 (2) SA
674
(CC)
at par 86
the Constitutional Court, dealing with rationality as a minimum
threshold requirement applicable to the exercise of public
power,
held that the question whether a decision is rationally related to
the purpose for which the power was given calls for an
objective
inquiry. It then said: “
Otherwise
a decision that, viewed objectively, is in fact irrational might pass
muster simply because the person who took it mistakenly
and in good
faith believed it to be rational. Such a conclusion would place form
above substance and undermine an important constitutional
principle
”.
In my view the same can be said of the determination of the
reasonableness or otherwise of a decision or finding or arbitration
award made by a CCMA commissioner under the compulsory arbitration
provisions of the Act. Whether or not an arbitration award or
decision or finding of a CCMA commissioner is reasonable must be
determined objectively with due regard to all the evidence that
was
before the commissioner and what the issues were that were before him
or her. There is no reason why an arbitration award or
a finding or
decision that, viewed objectively, is reasonable should be held to be
unreasonable and set aside simply because the
commissioner failed to
identify good reasons that existed which could demonstrate the
reasonableness of the decision or finding or
arbitration award.
[104] In my view the analysis of the
evidence and the issues before the commissioner which has been
undertaken above reveals without
any doubt that the decision that the
commissioner reached in this case that the third respondent was not
guilty of the acts of misconduct
for which he was dismissed and that
his dismissal was substantively unfair was a decision that a
reasonable decision maker could
reach. Accordingly it was a
reasonable decision or finding. In my view it is a decision that
could certainly have been reached by
a reasonable decision-maker.
Accordingly, there is no basis for it to be interfered with on
review.
[105] In the circumstances I would
dismiss the appeal. With regard to costs I am of the opinion that the
requirements of the law and
fairness dictate that no order as to
costs should be made on appeal.
[106] In the result the appeal is dismissed with no
order as to costs.
Zondo
JP
I
agree.
Jappie
JA
I
agree.
Khampempe
JA
Appearances:
For
the Appellant : Mr S. Snyman
Instructed
by : Snyman Attorneys
For
the Respondent : Mr D Vinnicombe
Instructed
by : Garlicke & Bousfield
Date
of judgment : 5 December 2007