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[2008] ZALAC 22
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Checkport SA (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JA1/2007) [2008] ZALAC 22 (14 May 2008)
JA1/2007-DKDJ
3
JUDGMENT
LOM Business Solutions t/a Set LK Transcribers
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NO
: JA1/2007
2008-05-14
In the matter between
CHECKPORT SA (PTY) LIMITED Appellant
And
CCMA & OTHERS Respondent
_________________________________________________________
J U D G M E N T
_________________________________________________________
DAVIS JA
: The appellant carries on business from
Johannesburg International Airport. It is a service provider
concerned with passenger
profiling and documentation verification
which, needless to say, is an important service, to prevent human
trafficking and to promote
security and safety on aircraft.
Third to fifth respondents were employed as checking agents at
Johannesburg International Airport in respect of flights carried
out
by South African Airways (Pty) Ltd (SAA). Third respondent
was the supervisor of fourth and fifth respondents.
On 6 October 2005, email correspondence were received by appellant
from the government of the United Kingdom pertaining to one
passenger
who had travelled from Johannesburg International Airport on a
SAA flight on 6 October 2005, carrying a fraudulent
passport.
He was detected by the authorities at Heathrow Airport in London.
Pursuant to an investigation which was carried out
by the appellant,
it was discovered that a total of 177 passengers had boarded the SAA
flight and that only five had been scanned.
Third to fifth
respondents were the scanning personnel who were on duty when the
aircraft was boarded. Another employee on duty,
namely Bridget,
performed the function of physically checking the travel
documentation of passenger.
Third to fifth respondents were charged with five counts, being:
Failure to carry out instructions and report an incident flight
SAA234 of 6 October 2005 was not scanned as instructed;
Breaching the code of conduct in employment contract and rules and
regulations;
Dishonesty. Due to 1 and 2, a passenger went through undetected
with fraudulent passport; and
Bringing the company into disrepute;
Gross negligence.
Pursuant to a disciplinary enquiry which followed these charges,
third to fifth respondents were found guilty of all charges,
save for
the third charge.
On 19 October 2005, a written outcome of the disciplinary hearing of
third respondent was handed down. Fourth respondent’s
services
were terminated on 19 October 2005. Third respondent’s
services were terminated on 21 October 2005. Fifth respondent’s
services were terminated on 26 October 2005. Third to fifth
respondents were dissatisfied with these decisions and their
consequent
dismissals. The dispute was then referred to first
respondent.
On 6 December 2005, the matter was set down for arbitration. Second
respondent was appointed to arbitrate the matter. On
19 December 2005,
second respondent handed down her award.
She concluded that the dismissals of third to fifth respondents were
substantively unfair
and ordered that they be reinstated.
On March 2006, appellant launched an application in terms of
Section 145 of the Labour Relations Act, 66 of 1995 (‘the
Act’), to review and set aside the award of second respondent.
The matter was set down for hearing on 22 September 2006.
On 13 October 2006, Ndlovu AJ, handed down judgment in
which he dismissed the appellant’s application. There
was no
order as to costs.
With leave of the court
a quo
, this dispute has now come on
appeal before this court. The essence of the case concerned the
reasons why only five of 177 passengers
who boarded the flight on the
day in question had their passports scanned.
In her award the second respondent summarised the dispute thus:
“
The respondent
(being the appellant in this case)
blamed this on the applicants
(third to fifth respondents)
who
in turn blamed the scanners”.
She found for the respondents on the following bases:
The evidence indicated that it was “common cause” that
the manager responsible on the day, Mr Mostert “checked
on
them and if they were acting contrary to known or expected
procedures, he would have picked that up”.
The five passengers whose passports were scanned, appeared at
different parts of the list of passengers. This was “an
indication that there was indeed something wrong with the scanners
because even the ones that were assisted by the SAA passengers,
their images were not found”.
If the scanners could not retain the images, then “it is
possible that they could fail to detect the fraudulent passport.
If
that was the case therefore, it would be unfair for the respondent
to blame the Applicant for the malfunction of their machinery”.
For these reasons, the second respondent found, on the
probabilities, that there was insufficient justification for the
dismissal
of the respondents.
The test in a review application of this nature has been settled in
our law. Briefly stated: What concerns the reviewing court
is
whether this is a decision to which a reasonable decision maker could
not have come; in other words, is there a justification,
based on the
evidence, for the conclusions reached by second respondent?
Mr Hutchinson, who appeared on behalf of the appellant, (there was
no appearance on behalf of the respondents), submitted that
the award
manifestly had not taken account of significant portions of the
evidence. A series of misdirections were evident throughout
the
award. This lead to only one plausible conclusion; this was not an
award which a reasonable decision maker could have made.
I turn briefly to deal with the difficulties as indicated by
Mr Hutchinson. In the first place, appellant in the form of
evidence of Mr Morné Olivier, gave a clear
description as to the manner in which the scanners operated. Two
portions of his evidence are worth repeating for the purposes of this
judgment. In examination in chief he said the following:
“The
scanner that we use is basically a laptop and then it has got the
scanner underneath the laptop here. So every time
we put in a
passport it will tell you “scanning document” and then it
goes 10%, 20%, up until 100% and then the document
appears on the
screen of the laptop and it does a, if it is a machine readable
passport where you have got like a barcode at the
bottom, there it
will tell you, yes this is good or it is not good. And then you have
also got the option to see the UB and the
3M and the stuff like that.
But as soon as you scan, the image will appear on the screen in
front of you”.
Asked under cross examination whether the scanner could simply not
operate at all in the fashion urged by respondents. Mr Olivier
said:
“Firstly, if the scanner does not want to initialise it
will tell you, “failure to initialise scanner” and it
will not allow you to scan any passports. Secondly, if the battery
is flat, the scanner will not come on at all and it will give
you the
same message. Thirdly, if it says “ready to handle next
passenger”, and you put in the passport but no image
appears in
front of you, there is a problem. If you put the passport there and
an image appears in front of you, it means the
scanner is working,
there is nothing wrong with it”.
Mr Olivier then indicated that, in the event of any problem being
encountered, the operation of the scanner would indicate to
the
operator that there was a problem. To suggest that this evidence
uncontested as it was, needed to be supplemented by further
expert
evidence, is surely to be grossly unfair to the employer.
The contrary argument put up by the respondents and accepted by the
second respondent;
“if such scanners could not retain the
image, it is possible that they could fail to detect the fraudulent
passport”
is based on pure speculation. There is no basis
for drawing this kind of inference on the uncontested evidence
The question arises to whether any other reasonable inference could
be drawn from the facts. The evidence is clear: were the
scanners to
have malfunctioned the machines would have indicated this to the
third to fifth respondents. That leads to the only
reasonable
inference: there was a failure to employ the scanners.
As indicated earlier in my judgment, second respondent concluded
that there must have been something wrong with the scanners because
“even the passengers who were assisted by the SAA employees,
their images were not found”. However, in evidence, Mr
Olivier
testified that the South African Airways personnel had not scanned
any of the passengers and, to the extent that they had
been involved
in boarding procedures, this had taken place for only a five minute
period. There is no
basis by which to contend that part of the scanning was undertaken by
SAA employees.
There is a further issue raised by Mr Hutchinson. It appears to be
common cause that two scanners were employed on the day in
question.
As Mr Hutchinson rhetorically put it, what are the probabilities that
two scanners, employed simultaneously, would both
malfunction in
exactly the same fashion as urged by third to fifth respondents?
In short, the evidence placed before the second respondent indicated
clearly how the scanners were to be used and were employed.
There
was evidence as to what would occur if a scanner malfunctioned. None
of this evidence was ever placed into dispute. Once
the speculative
“evidence” put up by third to fifth respondents is
rejected, the only reasonable inference to be drawn
is that only five
passengers were scanned and that the respondents omitted to scan the
remaining 172 passengers. Upon this conclusion
the notion that the
employees in question should be dismissed is justifiable, in that
their failure to scan in the context of their
employment, constitutes
an egregious breach of their duties.
Reverting to the test which must be employed, on the evidence as I
have analysed it, a reasonable decision maker could have come
to no
other conclusion than that the employees failed to use the scanners
as was their obligation. Accordingly a reasonable decision
maker
would have concluded that the dismissals were substantially fair.
The remaining question that must be examined is the appropriate
course of action. I can see no reason to refer the matter back
for
further arbitration. Accordingly I would order that the appeal
succeed, that the decision of the court
a quo
be substituted
with the following:
The award of second respondent is set aside and substituted with an
award that the dismissal of third to fifth respondent was
substantially and procedurally fair. There is no order as to costs.
LEEUW JA & NDLOVU AJA
: Concur.
---oOo---
On behalf of the Appellant : Mr Hutchinson
On behalf of the Respondents: No appearance