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[2008] ZALAC 26
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Airport Company of South Africa v Nabee and Others (DA13/2006) [2008] ZALAC 26 (17 March 2008)
LOM Business Solutions t/a Set LK Transcribers
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NO
: DA13/2006
2008-03-17
In the matter between
AIRPORT COMPANY OF SOUTH AFRICA
...................................................
Appellant
And
MOHAMED NABEE & OTHERS
.................................................................
Respondent
_________________________________________________________
J U D G M E N T
_________________________________________________________
DAVIS JA
:
This is an appeal against a judgment
of Ngcamu J which was delivered on 14 February 2006, with
the leave of the court
a quo
the matter has come before this
court.
Briefly, the relevant facts to the extent that I need to traverse
them are as follows: First respondent was employed by the appellant
in Durban International Airport as a security officer. Following an
incident involving a passenger, first respondent was dismissed
for
behaviour unbecoming an employee of the appellant; and “manhandling”
the passenger. The matter proceeded to arbitration
before the third
respondent under the auspicious of the second respondent. His award,
determined that first respondent’s
dismissal was both
substantially and procedurally fair. The first respondent then
launched an application to review and set aside
the award in terms of
Section 145 of the Labour Relations Act 66 of 1995 (‘LAR’).
In his judgment, Ngcamu AJ accepted that first respondent was guilty
as charged. He held as follows:
“
The finding … that first respondent
was guilty of the offence was rational. The court cannot interfere
with the finding.
It is clear that it is the aggressive manner in
which Cominelli was handled that is described as manhandling. The
action was violent
in nature”.
The court
a quo
then proceeded to find that third respondent’s
decision on sanction, that is decision to dismiss the first
respondent was
reviewable on four grounds. Each of these grounds was
described by Ngcamu AJ, as constituting a gross irregularity.
The grounds were set out in the judgment. In paragraph 18 of the
judgment:
“
The incident in respect of which the
employee had been charged was old. The warning had expired. It
follows that it should not have
been considered against the employee.
It was a reviewable irregularity take this into account. The employee
was dismissed on the
strength of the “misconduct for which he
was never disciplined as was the position in
Flex-o-thene
Plastics v Chemical
Workers
Industrial Union
(1999) (20) ILJ 1028
(LAC). This prevented a fair trial of issues at it amounted to a
gross irregularity.”
In short, the first gross irregularity was a consideration that a
previous disciplinary misconduct had been taken into account
by the
third respondent and by the chair of the disciplinary enquiry.
The second gross irregularity was set out in paragraph 28 as follows:
“
The applicant was not found guilty of
fraud or having acted in a dishonest manner. The commissioner did not
deal with the question
whether the applicant’s action destroyed
the trust relationship. On the evidence presented, I do not agree
that it can be
said that the trust relationship was destroyed.”
The third gross irregularity as found by the court
a quo
,
follows upon an analysis of law which preceded the definitive
decision handed down by the Constitutional Court long after the
matter had come before the court
a quo
in
Sidumo v
Rustenburg Platinum Mines Limited
,
[2007] ZACC 22
;
2008 (2) BCLR 158
(CC). The
thrust of the reasoning of the court
a quo
was that the third
respondent had employed a reasonable employer test in assessing the
sanction. Accordingly, “
I am convinced the commissioner
misconceived his functions, in relation to his duties of assessing
the fair sanction this constitutes
a gross irregularity as it
prevented a fair hearing on sanction.”
At para 35.
The fourth and final irregularity concerned the finding of the court
a quo
, as third respondent did not consider several mitigating
factors which had been raised.
On the basis of these four forms of gross irregularity, the court
a
quo
found that “the applicant did not deserve to be
dismissed” and accordingly replaced the decision of third
respondent
of dismissal with a sanction of a final written warning.
It is important to emphasis that this case is not about the finding
of misconduct. That is not part of this appeal. All that this
appeal
deals with is the question of the sanction which must follow from the
misconduct. In this regard, it is important to amplify
upon the
summary provided above of the findings of third respondent in this
regard.
”
The passenger Cominelli was adamant that
the applicant had in fact grabbed her and that he was extremely rude
to her when she made
enquiries about the x ray machines.
Cominelli proved to be a good witness and it is hard to believe that
she went through
the trouble of submitting a written complaint and
agreeing to give evidence at his hearing if he did in actual fact act
in an unacceptable
manner. It is difficult to accept or believe that
a customer who was spoken to cordially and calmly when being told to
ask management
upstairs about the delay and was insipidly and calmly
asked to leave the controlled area, would then go through the trouble
of
writing a formal complaint about someone. Cominelli was obviously
outraged by something and she claims it was the applicant’s
conduct and rudeness when responding to her question and his
unwarranted action of grabbing her “violently”. At the
hearing she her version of events and the applicant chose not to
question her, …[indistinct] to question of veracity of
her
version of events. He led no evidence to suggest to the chair of the
hearing that he did not commit the offences that Cominelli
had
accused him of. Similarly the applicant led no convincing evidence at
the arbitration proceedings to convince me that Cominelli
was indeed
lying and that he did not commit the offence …[indistinct] and
dismissed. Thus is fair to seem that on a balance
of probabilities
the applicant was indeed guilty of offences for which he was
charged.”
That finding is beyond the reach of reconsideration for this Court.
I turn then to the four findings of gross irregularity upon which the
court
a quo
justified its interference. Dealing with the
question of the other allegations of misconduct by first respondent,
it is important
to note that the issue of a previous record was
raised in terms of a procedural challenge. Third respondent found as
follows:
“
The second issue at hand is the manner in
which the aggravating circumstances had been taken into account prior
to the decision
to dismiss Nabee. Essentially Nabee’s
contention was that the seven items submitted as aggravating
circumstances …
should not be part of the deliberations to
decide the sanction at his hearing. The contention was that he was
only aware of incidents
1 and 7 and pointed out that incident 1
occurred in 2000 and was therefore no longer valid as a warning.
However, during cross
examination Nabee did admit that the National
Key Point Act, 102 of 1980 did apply to the Durban International
Airport and he stated
that he was not aware of the clause which
stated that a security officer who conduct himself in disgrace and
improper unbecoming
manner, may have his services terminated …
Although the veracity of the above incidents are called into
question, it seems
difficult to believe that the employer fabricated
these incidents in order to portray Nabee in a negative light and
thus expedite
his dismissal. The chances are that a number of these
incidents did occur (at least two did definitely occurred) and they
demonstrate
that Nabee has at very least a chequered career regards
his conduct with fellow employees, and as more importantly customers.
I
am therefore of the opinion that the employer was justified in
considering the aggravating circumstances cited in the disciplinary
hearing. I am therefore not convinced that this act in any way
compromised the procedural fairness of Nabee’s dismissal.”
When third respondent’s reasoning together with that of the
disciplinary procedure is examined, it is clear that the warning
which had expired had remained on file and that it was taken into
account as being relevant in establishing a trend or tracking
of
behaviour, was well the manner in which the chairman of the appeal
also construed the consideration of previous conduct. To
the extent
that previous misconduct can establish a pattern or a trend, that is
something which any disciplinary hearing is entitled
to take into
account.
I turn to the second irregularity, that is the issue of the
destruction of the trust relationship. Once more, there seems to be
no basis for finding that only a guilty finding of fraud or
dishonesty is sufficient to justify a conclusion that an employment
relationship has not broken down. Indeed, there is evidence from Ms
Reddy that “we need employees that can uphold the values
of our
company to fit in and try and drive the thrust of the company and
further, I think that the customer’s key, we do
have rude
passengers, I think its you know you need in calm and unflappable,
that is how our staff are trained. We have people
being abused by
passengers but it is how they respond.” She then said, “our
staff are so calm, they are trained because
they do it all the time,
they just know how to calm them down, they reason with them and they
say “we’ve got a standard
form, tell us exactly what your
issues are and we will respond to you”. But we are not allowed
to raise our voices or to
respond in the same way that passenger is
doing because then we will be defeating the purpose.”
It is clear from these passages that the approach which were adopted
by appellant, was that when, severe misconduct takes place,
in the
context of this particular form of employment, the employment
relationship can be regarded as having being destroyed. There
does
not seem to be any justification for finding that the third
respondent had been guilty of a gross irregularity.
There was a considerable debate as to whether in fact the third
ground of gross irregularity, namely, that third respondent adopted
a
reasonable employer test, was justified in terms of third
respondent’s findings. The key passage of third respondent’s
award reads thus:
“
This Act (National Key Point Act) provides
a regulatory framework and includes the section that delineates a
code of conduct for
employees and particularly security officers at
airports. The above Act stipulates that security officers who conduct
themselves
in a manner of being improper, disgraceful and unbecoming,
may have their employment terminated. It will be difficult to show
that
the employer has acted unreasonably in deciding to dismiss the
applicant for the incident with the passenger. In view of the above,
it is prudent to conclude that on a balance of probabilities, the
applicant’s sanction was not too harsh in the circumstances.”
Mr Omar, who appeared on behalf of the first respondent, attempted to
construe the words “the employer has acted unreasonably”
as a source for the court
a quo’s
justification that a
reasonable employer test has been adopted and that being the test, it
no longer finds favour in our law, see
Sidumo
supra at para
61.
I am not convinced that was what the third respondent intended. This
court has said before and it is worthy of repetition: arbitration
awards drafted by a person such as third respondent, are not to be
parsed as carefully crafted reserved judgments. They are drafted
by a
commissioner under severe pressure and it is understandable that
often they may not measure up to a precise standard of a
High Court
judgment. That is not fatal to the process. Indeed in a very useful
explication of the approach adopted in
Sidumo
, was given by
Zondo JP in
Fidelity Cash Management Services v CCMA &
Others
(unreported decision, (5 December 2007) at paragraph 103,)
where after careful examination of the implications of the
Constitutional
Court decision,
Sidumo,
he said the following,
“in my view the same can be said at a determination of the
reasonableness or otherwise of a decision
or finding of an
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 of the arbitration
award.”
Hence, in a case such as the present, based on a finding of
misconduct, was it at all unreasonable to conclude that dismissal was
an appropriate sanction. That particular approach is one that follows
the principles laid down in
Sidumo
at paragraphs 61, 110 and
119. Once it is accepted that this appeal is based on facts which are
now no longer in dispute, namely
the finding of misconduct, questions
of mitigation, that is the fourth form of gross irregularity, are of
very little consequence
to the dispute.
The question is not whether the court
a quo
considered there
to exist mitigating circumstances that caused it to arrive at the
conclusion that the sanction of dismissal was
unfair, but rather
whether the decision of the appellant fell within a range of
reasonable responses to the finding of misconduct.
For all of these reasons, I am of the view that the court
a quo
erred in its finding of gross irregularity on the part of third
respondent. Furthermore, to the extent that it is relevant, I am
of
the view that the application of the
Sidumo
test justify the
finding that third respondent’s decision should be confirmed.
For these reasons the appeal succeeds.
The order of the court
a quo
of 14 February 2006 is
set aside and replaced with the following:
The dismissal of the applicant was fair;
The applicant is ordered to pay the costs incurred by third
respondent.
There is no costs order made insofar as the appeal is concerned.
JAPPIE & LEEUW JJA
: Concurred.
---oOo---
On behalf of the Appellant: Advocate Myburgh
On behalf of the Respondent: Advocate Omar