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[2009] ZALAC 21
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Mavhungu v Tsogo Sun Group (Montecasino) and Others (JA 53/07) [2009] ZALAC 21 (29 January 2009)
IN THE LABOUR APPEAL COURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO JA 53/07
In the matter between:
Azwitamisi Simon Mavhungu
Appellant
and
Tsogo Sun Group
(Montecasino) 1
st
Respondent
Commission for Conciliation 2
nd
Respondent
And Arbitration
Mapallo Tsatsimpe 3
rd
Respondent
Judgment
Tlaletsi AJA
Introduction
[1]
This
is an appeal against the judgment of the Labour Court delivered on 11
October 2007. The appellant was employed by the first
respondent as
credit cashier. He was dismissed from his employment with effect from
16 November 2005 pursuant to a disciplinary
enquiry on allegations of
misconduct. The appellant was not satisfied with his dismissal as he
contended that his dismissal was
substantively unfair.
Appellant did not challenge the procedural fairness of his dismissal.
[2]
The appellant referred a
dispute of unfair dismissal to the second respondent (the Commission
for Conciliation, Mediation and Arbitration)
(“the CCMA”).
The dispute was arbitrated by the third respondent, a commissioner of
the CCMA on 1 December 2006. The
commissioner issued an award on 12
December 2006. The commissioner found the dismissal of the appellant
to be substantively fair
and made no order as to costs.
[3]
Aggrieved by the award of
the commissioner, the appellant brought an application in the Labour
Court for the review and setting
aside of the award of the
commissioner. The appellant’s application for review was
dismissed with costs on 11 October 2007.
He applied for leave to
appeal against the judgment of the Labour Court and his application
was refused on 6 December 2007. He
obtained leave to appeal from this
Court after he petitioned the Judge President of this Court.
According to the first respondent,
its Answering Affidavit to the
petition was erroneously filed in a wrong file and was therefore not
part of the record for the
petition.
Factual background
[4]
The first respondent is
conducting the business of a casino. It deals with guests and the
public in general on a daily basis. It
expects its employees to
conduct themselves in an acceptable manner. The first respondent also
deals with large amounts of cash
and requires extra care to be
exercised by its cashiers. It has a rule or policy in terms whereof
cash variances are dealt with
in terms of disciplinary procedures.
[5]
It is common cause that
the appellant was during 2003 dismissed from the employ of the first
respondent after having been found
guilty of insubordination. He
referred a dispute of unfair dismissal to the CCMA. The parties
agreed to resolve their dispute and
entered into a settlement
agreement. The terms of the said agreement were
inter alia
the
following;
the appellant was reinstated in
his position;
the first respondent was to
investigate certain allegations made by the appellant regarding
non-payment of monies allegedly
due to the appellant and to pay him
monies due to him if he is found to be entitled to such payment;
the appellant would not be paid
any money as back pay arising from his reinstatement and that the
appellant would accept and
sign a final written warning which would
remain in force for a period of twelve months commencing 1 June
2003;
the parties agreed to regard the
period in which the appellant had been dismissed until his
reinstatement as a period of suspension
without pay;
5.5 the appellant undertook to obey
all lawful instructions issued to him by his “
line manager
”
and other senior personnel in keeping with his contract of
employment.
[6]
The incident that led to
the appellant’s dismissal took place on 27 September 2005. On
this day the appellant was supposed
to attend a disciplinary enquiry
against him relating to allegations of unexplained variances in the
cash flow balances. The said
enquiry had on a previous occasion been
postponed to 27 September 2005. However, on this day as well, the
enquiry did not take
place. What follows are the parties’
versions regarding the event that had led to the dispute as presented
at the arbitration.
Arbitration proceedings
[7]
The first respondent
tendered the evidence of Ms Scheenagh Rabka(“Rabka”) and
Mr Dirk De Villiers (“De Villiers”).
Ms Rabka testified
that she had been working for eight years for the first respondent.
The appellant’s duties as a credit
cashier entailed serving
guests, performing financial transactions relating to credit cards,
cheques, foreign currency or larger
amounts of cash. He reported to
his supervisor (Shift Manager) who in turn reported to Rabka. The
appellant was therefore Rabka’s
subordinate.
[8]
Rabka testified that when
she reported for her shift at 4pm on 27 September 2005 she received a
report that the disciplinary enquiry
that was scheduled to take place
against the appellant did not take place. She did not know the reason
why the enquiry had not
taken place that day. She mentioned that as
she was sitting in her office, when the appellant “stormed”
into her office
and started shouting, and waving a finger at her. He
was very aggressive and was leaning over her desk angrily, shouting.
She tried
to find out what was happening but the appellant did not
give her any chance to finish even one sentence. He was saying a lot
of
things. What she could hear from him was “
that
management was not fair
”. She suspected that his conduct
had to do with the disciplinary enquiry that was supposed to be held
that day. She tried
to tell him not to speak to her in that manner.
[9
]
Rabka mentioned that she walked out of her office and went to
the shift manager’s desk in order to get the shift schedule
so
that she could reschedule the date of the enquiry. The appellant
followed her and continued to shout at her. She requested appellant
to wait so that he could sign the amended notice of the enquiry as a
means of diffusing the situation. The appellant refused, and
continued to shout and wave his finger at her. The time was around
5pm and the cashiers of the shift that were knocking off were
present
and were busy “cashing up”. The employees of the shift
that reported with Rabka were also present. She mentioned
that there
were patrons present at the time because their casino normally starts
to be busy from 2pm and 3pm. All these people
were in a position to
see and hear what the appellant was doing and saying even though he
tried to lower his voice when he was
at the cashier’s booth. At
the time, she continued, six out of seven cashier booths were in
operation.
[10]
She described the
appellant as a person who does not respect management and its
decisions. She said he is short tempered, rude,
insubordinate and
insolent. He is the kind of person who does not listen to others and
who would not give anyone a chance to speak
to him. She testified
that to put him back to his position at the first respondent would be
detrimental to staff members, management
and guests. First respondent
has a staff complement of about hundred and ninety (190) in their
department and they expect each
one to be responsible for their own
conduct and to follow procedures. They can therefore not devote their
time to the appellant
to ensure that he is friendly, polite and can
control his temper. They do not have time to “
baby-sit
”
the appellant.
[11]
Rabka testified that she
did not intend to hold the appellant’s enquiry after his
working hours. Neither did she want appellant
to work overtime. All
that she expected was for the appellant to wait only for two minutes
to be served with and accept an amended
notice of enquiry. She found
it convenient and expedient to do it then whilst staff members
belonging to different shifts who were
to participate in the enquiry
were still available. That would obviate any possible inconvenience
to all other staff members involved
in the enquiry. She denied that
she pushed or shouted at the appellant. She did however, tell him
that she would not allow that
she be spoken to the way the appellant
did as her husband and children do not speak to her in that manner.
She mentioned further
that the actions of the appellant were recorded
on the CCTV video and were also noted by the chairperson of the
internal disciplinary
enquiry. The video tape subsequently went
missing.
[12]
De Villiers confirmed
that he was a shift manager and the appellant was his subordinate. At
the time of the incident he was sitting
at the shift manager’s
desk in front of the manager’s desk working on the computer.
This desk is their biggest cash
desk on the main floor where their
guests cash their “chips” or get money for gambling
purposes. Whilst working he
noticed Rabka standing at the shift
manager’s desk with appellant. Rabka asked the appellant to
wait as she wanted to serve
him with a reissued of a notification for
an enquiry. The appellant refused and mentioned that it was now his
time and not the
company’s time at that point in time. Rabka
asked him repeatedly and the appellant became aggressive, leaned
towards her,
wagging his finger, spoke loudly in a disrespectful
manner. This happened in full view of the junior staff, himself and
members
of the public.
[13]
He testified that this
was not the first incident he observed of the appellant. He mentioned
that he on a previous occasion wanted
to give the appellant a notice
to attend a disciplinary enquiry. He refused to accept it. He
realised that the appellant was losing
his temper and told him that
he was going to hand over the matter to other assistants to issue the
notice. The appellant became
aggressive and tried to grab the
document from his hand. He tried to shield it but he ultimately
managed to grab it from his hand.
This was in full view of members of
the public. A disciplinary enquiry was held because of his conduct
and he was dismissed after
being found guilty. This incident became
the subject of the dispute which led to the disciplinary enquiry and
the conclusion of
the settlement agreement previously referred to
herein.
[14]
De Villiers testified
further that the appellant can at times be “
very calm and
collected
”. However, at least on two occasions that he had
observed him, as soon as he had to deal with disciplinary matters
against
him, he lost his temper. It is for his conduct that they had
decided that whenever he had to be served with a notice to attend a
disciplinary enquiry, it had to be done in the presence of witnesses.
De Villiers testified further that he could not remember
the exact
words mentioned by the appellant during the incident with Rabka
except that he refused to wait and that it was now his
time and not
the company’s time. He denied that the appellant approached him
during this ordeal with Rabka to request a shift
roster. He also
denied ever giving the shift roster to the appellant.
[15]
The appellant’s
version of the events was that Rabka sent Bheki Dlamini (the cashier
supervisor) to tell him and to insist
that the appellant should work
overtime. He explained his reasons to Dlamini why he could not work
overtime. His main reason was
that he had no agreement with
management to work overtime as the respondent’s policy required
that an employee had to consent
to working overtime. Dlamini told him
that Rabka gave an instruction that if he was not agreeing to working
overtime he should
then come to her. The appellant went to Rabka. He
met Rabka in front of her office on her way from the cash desk
manager. He requested
to see her and she invited him to her office.
Inside her office he explained to her why he wanted to see her. Rabka
immediately
started shouting at him, telling him that he is going to
work overtime and that his enquiry had been postponed several times.
He
explained to her that as an employee he had to consent to working
overtime. He mentioned that Rabka pushed him out of her office
and
told him that she did not have time to explain.
[16]
The appellant testified
that he left Rabka and as he was walking towards Dlamini, Rabka
called him back. When he returned to her
she was still shouting at
him insisting that he had to work overtime. The appellant went to De
Villiers’ counter and requested
from him the shift roster so
that he could look at possible dates for the purpose of rescheduling
the date of the enquiry. De Villiers
gave him the shift roster. He
inturn gave it to Rabka who was still insisting that he must work
overtime. He mentioned that when
the shouting by Rabka was taking
place there were no customers around. The only people present were De
Villiers, Dlamini and himself.
He could not recall whether “
Viola
”
was present in the administration office.
[17]
The appellant explained
further that when he entered the office of Rabka at her invitation,
he asked her to reschedule the date
of hearing and gave her
alternative days. He did so because he had already heard that she was
insisting on him working overtime
so that the hearing could be
finalised. He denied that he was unruly, insolent or aggressive. He
also disputed the remark by the
chairperson of the internal
disciplinary hearing that he observed on the video footage that he
appeared to be unruly. He explained
that there was a conspiracy
against him by Rabka and De Villiers to have him dismissed. It is for
this reason that they falsely
accused him of the charges against him.
He further denied that he ever grabbed a notification of a date
document from De Villiers
on a pervious occasion. He mentioned
further that even on the date of the present incident his “float”
(money) could
not balance because management deliberately gave him
less money so that they could find something against him. He
testified that
the first respondent had a tendency of exploiting its
employees by not respecting the labour laws and its own policies and
victimised
those who questioned such conduct. He also believed that
he was being discriminated against by management. He was however
seeking
reinstament despite all what he complained about.
[18]
Dlamini who testified as
the appellant’s witness stated that the appellant was scheduled
to appear at a disciplinary enquiry
at 3pm that day. He (Dlamini) was
the initiator of the enquiry and had to report for duty earlier than
his 4pm shift so that he
could participate in the enquiry. On arrival
he found appellant struggling to balance his “
float
”.
He waited for him until his time for the enquiry went past. When he
finished balancing his “
float”
at about 5pm, he
told him that the chairperson of the enquiry wanted the enquiry to
proceed as he was also instructed by Rabka
that it had to proceed.
The appellant told him that he was not happy with that. He referred
appellant to Viola who was the manager
who had conveyed the
instruction to him.
[19]
He testified that
appellant went to Viola who in turn referred him to Rabka. He does
not know what happened inside Rabka’s
office. He saw appellant
coming out of Rabka’s office being followed by her. He could
hear from where he was seated that
Rabka was insisting that appellant
had to work overtime because the hearing had been postponed several
times. Dlamini mentioned
that appellant was “
obviously”
not happy with that instruction. The two stood in front of De
Villiers who was sitting at his desk. He then saw De Villiers hand
over a paper to appellant who in turn handed it to Rabka. He does not
know what that paper was. Neither did he hear what the appellant
could have said to De Villiers before he was given the paper. The
appellant thereafter came back to him so that he could assist
him
with the “
balancing
” of his “
float
”
as he was not going let him go without having concluded the exercise.
[20]
Dlamini explained that he
was sitting about 10 metres away from De Villiers’ desk. He
could hear that Rabka was the one who
was shouting. He could hear
that appellant was not happy about working overtime, but he was not
shouting. He could not remember
whether there were customers in the
vicinity as he was concentrating on working on reconciliation of the
float. He mentioned further
that the hearing could be presided over
by any other supervisor who was on the same shift with the appellant
and not necessarily
the one that had been assigned to preside that
day.
[21]
The charges against the
appellant were (i) gross insubordination, (ii) unruly behaviour, and
(iii) breach of contract of employment.
In her award the commissioner
mentioned that appellant had been found guilty of unruly behaviour
only by the chairperson of the
disciplinary enquiry and as such she
would only confine herself to this charge when considering whether
appellant’s dismissal
was substantively unfair.
[22]
In analysing the evidence
the commissioner found that Rabka’s evidence was supported by
De Villiers’ and that her request
was clear and specific and
had nothing to do with overtime work. She preferred the respondent’s
version that guests were
present on the basis that in the institution
such as the respondent there is no way that there could be no guests
as guest are
its core business. She found appellant’s version
that there were no guests to be improbable. The commissioner found
the evidence
of Dlamini unhelpful as he was seated some distance away
from where the incident happened and as a result could not hear
everything
that was said. She further held that Dlamini wanted to put
the entire fault on Rabka and display the appellant as a victim who
was unfairly dismissed. She found that Dlamini only wanted to help
his friend or colleague and could not withstand cross-examination
of
what he had said in evidence in chief.
[23]
In relation to sanction
the commissioner held that she was not convinced that there was a
good working relationship between appellant
and the respondent. She
stated that appellant did not dispute the fact that he challenged
authority. With regard to appellant’s
contention that he had no
problem with the respondent and that he was prepared to work for the
appellant and that his only problem
was with management, the
commissioner held that appellant could not separate management from
the respondent as they have been placed
in authority by the
respondent and are the people that appellant should work with. The
commissioner found the dismissal of the
appellant to have been
effected for a fair reason.
Proceedings in the Labour
Court
[24]
The appellant refused to
accept the award of the commissioner and instituted review
proceedings in the Labour Court. He sought an
order that the award be
reviewed and set aside and that the matter be referred back to the
second respondent for arbitration
de novo
before a commission
other than the third respondent and costs in the event of any
opposition.
[25]
In the review
application the appellant only challenged the substantive fairness of
his dismissal. The alleged grounds of review
contained in the
founding affidavit were that the commissioner did not
“apply
his mind to the facts on hand”
in that:
She ignored and failed to consider
crucial evidence to the effect that he was told by the respondent
to work overtime against
his consent;
She ignored an admission by Rabka
during cross-examination that she could not remember what he said
to her while shouting despite
the fact that he was speaking in the
English language which is well understood by her;
She erred in finding that De
Villiers’ evidence supported Rabka’s version that he
shouted and pointed a finger at
her when De Villiers confirmed
during cross-examination that he did not hear what they said as he
was busy with a computer;
She ignored the evidence of
Dlamini that he saw De Villiers hand over a paper to him;
That the commissioner erred in
finding that he was found guilty of unruly behaviour when in fact
the chairperson of the enquiry
stated that he did not find him
guilty of unruly behaviour.
[26]
With regard to the
alleged ground that the commissioner ignored the relevant evidence,
the Labour Court recognised that the commissioner
made credibility
findings in favour of the first respondent’s witnesses and
against the appellant and his witness and that
a review court should
be extremely reluctant to set aside findings of fact and credibility
made by a trier of fact such as the
commissioner. The Labour Court
held that there is a rational connection between the evidence that
was placed before the commissioner
(that is that the appellant became
angry and unruly when Rabka wanted to hand a new disciplinary hearing
notice to him) and the
conclusion reached by the commissioner, and
found no basis to interfere with the finding of the commissioner.
[27]
The second ground that
the commissioner held that the appellant was found guilty of unruly
behaviour when it was in fact not the
case the Labour Court referred
to the relevant parts of the transcript of the evidence and found
that the recording by the chairperson
that there was insufficient
evidence to substantiate unruly behaviour must be a typographical
error as evidence on record clearly
indicates that the chairperson
was concerned with the charge of unruly behaviour and found that
there was sufficient evidence to
sustain a conviction. As pointed out
already, the application for review was subsequently dismissed with
costs.
The Appeal
[28]
The appellant has raised
a number of issues and allegations as grounds upon which he is
appealing against the judgment of the Labour
Court. These may be
summarised as hereunder.The Labour Court:
28.1 erred in finding that on the
facts presented the appellant was instructed by Rabka that he should
not leave because she wants
to serve him with a notice of the date of
the disciplinary enquiry and that the appellant did not take kind to
that and uttered
abusive words in the presence of fellow employees
and guests;
28.2 ignored and failed to consider
crucial evidence to the effect that appellant was instructed to work
overtime which he was never
required by the first respondent’s
policy;
28.3 erred in finding that Rabka’s
version was supported by De Villiers when in fact De Villiers
testified that he did not
hear or see exactly what transpired on the
day in question;
28.4 “erroneously considered
gross irregularity by the third respondent, that applicant’s
witness was rejected because
he was distant away and he does not have
all information required to determine if applicant was dismissed
fairly or not. Hence
Mr De Villiers testified that he does not have
all information required as he was busy on a computer. Third
respondent grossly
ignored appellants’ witness to favour first
respondent, it is therefore unfair.”
28.5 erred in finding that there is
a rational connection between the evidence that was placed before
third respondent. First respondent
failed to present CCTV Tape
Footage as concrete evidence to show the appellant’s behaviour.
28.6 erred in applying the decision
of the Labour Appeal Court “in
Carephone (Pty) Ltd v
Morcus NO & Others (1998) 19 ILJ 1425 (LAC)
and the
unreported judgment of
NAVSA AJ
in the
constitutional Court matter of
Zidumo & Another v
Rustenburg Platinum Mines & Others
in attempt to
sustain the irregularities committed by third respondent and to fail
the trite of law and justice.”
28.7 “erred in not applying
Trite Law
pertaining to probabilities inference to true facts
in dispute. No evidence was presented to conclude that Appellant
misconducted.”
28.8 “erred in not
recognizing, alternatively not taking proper or full cognizance of
the
Constitution of South Africa
and more specifically the Act
namely ,
Labour Relations Act 66 of 1995
section 192(2)
and
Code of Good Practice, Schedule 82(4)”
28.9 the presiding judge
“furthered
more, his Unfairness by ignoring act 168(3). Issuing an order while
he was not supposed to hear the matter as he
issued the
judgment”.
[29]
In this Court advocate L
Memela appeared on behalf of the appellant. He is also the Counsel
that prepared the heads of argument
on behalf of the appellant. In
the heads, Counsel did not deal with the many issues raised by the
appellant as his grounds of appeal
in both the founding and
supplementary affidavits. In essence he submitted that the court
a
quo
erred in deciding the merits in favour of the first
respondent and that the appeal should be upheld with costs. He did
refer to
some parts of the evidence in an attempt to show some
contradictions in the evidence of Rabka and De Villiers.
[30]
Section 145
of the Act
provides that any party to a dispute who alleges a defect in any
arbitration proceedings under the auspices of the CCMA
may apply to
the Labour Court for an order setting aside the arbitration award. A
defect referred to above means that the commissioner;
30.1 committed misconduct in
relation to the duties of the commissioner as an arbitrator;
30.2 committed a gross irregularity
in the conduct of the arbitration proceedings; or
30.3 exceeded the commissioner’s
powers; or
30.4 that an award had been
improperly obtained.
[31]
The Constitutional Court
in
Sidumo & Another v Rustenburg Platinum Mines Ltd &
Other
[2007]12 BLLR 1097 (CC) (2007) 28 ILJ 2405 (CC) held
that the above grounds of review are suffused by reasonableness
because a
CCMA arbitration award, as an administrative action must,
as required by the Constitution be lawful, reasonable and
procedurally
fair. The test laid down by the Constitutional Court in
determining whether a CCMA commissioner’s arbitration award is
reasonable
or unreasonable is to ask the question whether or not the
decision or finding reached by the commissioner is one that a
reasonable
decision maker could not reach.
[32]
As to the applicability
of the rationality test or the test in
Carephone (Pty) Ltd v
Marcus NO & others
1993 (3) SA 304
(LAC)
this Court per
Zondo JP
in
Fidelity Cash Management Service v CCMA & Others
[2008]3 BLLR 197(LAC)
held as follows at para [102]:
“
What is the difference
between the approach enunciated in Carephone, supra and that
enunciated in Sidumo with regard to the grounds
of review set out in
section 145 of the Act? The difference seems to me to be two-fold.
Firstly, Carephone sought to construe section
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 section 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.”
[33]
The learned Judge
President held further that it would 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. In that instance, the Court held, the court will need
to remind itself that the task of determining
the fairness or
otherwise of such a dismissal in terms of the Act primarily is 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 would have dealt
with the matter differently.
(para[98]). The court held further that:
“
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 the circumstances.”
The distinction between review and
appeal should therefore at all times be observed when considering
applications to the arbitration
awards issued under the auspices of
the CCMA.
[34]
It would appear that the
attack directed on the award of the third respondent in this matter
is mainly directed at the correctness
of the award particularly in
preferring the version of the first respondent’s witnesses
vis-à-vis
that of the appellant. The attack, in my
view, leans more on the side of an appeal than the review. This
conclusion is fortified
by the fact that the appellant, both in
founding and supporting documents, did not identify any of the
grounds of review provided
in section 145 of the Act that he is
relying upon both in the founding and the supplementary affidavits to
the review application.
In my view it is required of an applicant
for review to identify the real grounds provided in law upon which
he/she seeks to review
the award of a commissioner of the CCMA.
[35]
It is evident from the
record as a whole that the commissioner took into account both the
credibility of the witnesses and the probabilities
of the case before
her and the extent of corroboration of the versions presented to
her.The commissioner was faced with two diametrically
opposed
versions of the appellant and the first respondent. It is not correct
as it was alleged that the commissioner ignored or
failed to consider
the evidence that the appellant was told by the respondent to work
overtime against his consent.The commissioner
accepted Rabka’s
version that she never requested or instructed that the appellant
should work overtime. She only requested
him to wait for a few
minutes so that she could reissue a notice to attend a disciplinary
enquiry. It is only the appellant who
stated that he was instructed
to work overtime. His witness, Dlamini did not testify that he told
Dlamini that Rabka informed him
to convey to the appellant that he
should work overtime. He only made an allegation based on hearsay
that the manager who was supposed
to preside over the enquiry (Viola)
had been instructed to continue with the hearing that day. Viola was
not called to testify
to confirm the alleged instruction from Rabka.
I find it improbable that the appellant would complain that he was
instructed to
work overtime which he rejected but was prepared to
stay behind with Dlamini to balance his float after the altercation
with Rabka.
Whether Rabka told the appellant to work over time or not
is neither here nor there. This case is about the conduct of the
appellant
toward Rabka and not the instruction to work overtime. It
was not even the appellant’s defence that he was provoked by
being
instructed to work overtime and as a result he acted as he did.
He denied ever having been unruly and that instead Rabka is the
one
who was unruly.
[36]
The other aspect is that
if indeed Rabka wanted the appellant to work overtime, or hold an
enquiry after his working hours nothing
is said about what prevented
from continuing with the enquiry that she so insisted to proceed
with. I say this because on the appellants’
version he did
nothing wrong as he was calm and that Rabka was the aggressor. What
is also strange is that the appellant’s
attorney put a
proposition to Rabka during cross-examination that his instructions
were that
“(she) insisted that the (appellant) should remain
after hours for the enquiry, which he was never notified about”
.
This was mentioned on more than one occasion. The appellant also gave
the impression that she was only notified of the enquiry
that day and
that Rabka never intended to reschedule the enquiry. This version
contradicts the common cause fact that the appellant
had a pending
enquiry which had been postponed on previous occasions and was
scheduled to be held that day. I find it strange that
Rabka would
agree to speak to the appellant in her office and all of a sudden
without being provoked, push the appellant out of
her office only
because he does not want to allow a disciplinary enquiry to happen.
[37]
The commissioner’s
finding that the evidence of Rabka and De Villers corroborated each
other on the attempt to reschedule
the hearing and whether customers
and other staff were present is supported by the record. It is to be
noted that De Villiers was
at the shift manager’s desk where
the incident took place. He was in a better position to hear and see
what happened as opposed
to Dlamini who was some distance away. I
also find it strange that Dlamini could only hear what Rabka was
saying and not be in
a position to hear what the appellant was
saying. His hearing seemed selective. De Villiers testified that he
did not see what
happened inside the office. If he was really part of
the conspiracy against the appellant as he alleged, he could easily
have designed
his evidence to suit that of Rabka about the incident
that happened inside the office. It was suggested that De Villiers
might
have developed an attitude against the appellant because of the
earlier incident that led to the dismissal of the appellant. This
suggestion is speculative and is not supported by any admissible and
reliable evidence. It is also surprising that Dlamini would
see De
Villiers hand over a paper to the appellant and not hear the
discussions about the paper. Obviously this version is intended
to
corroborate the version of the appellant that he went and obtained a
shift roster from De Villiers. De Villiers has denied ever
handing
any paper to the appellant. His version is more probable on this
aspect and was correctly preferred by the commissioner.
[38]
The appellant submitted
that the commissioner should have drawn an adverse inference because
of the first respondent’s failure
to produce evidence of the
CCTV. As submitted on behalf of the first respondent, it is implicit
from the award and the findings
that follow the summary of the
appellant’s evidence, that the commissioner obviously did not
accept this submission and accepted
the
bona fides
of the
first respondent’s on this issue. Rather than decide the matter
on this basis she reasonably chose to evaluate the
evidence and
direct testimony of the witnesses. I can think of no reason for the
first respondent to deliberately conceal this
evidence which
supported its version. The chairperson of the enquiry in his findings
remarked that
“from the tape evidence, the statement from
Dirk De Villiers and the case presented by Scheenagh’s Rabka,
it is clear
that you are the aggressor in this situation. I feel that
your body language and gestures on the tape evidence was
inappropriate
and as such also constituted a further form of
insubordination”.
This finding by the chairperson was not
challenged during the arbitration. The only issue raised was the
absence of the video footage.
Surely if the video footage was indeed
available, the first respondent would have made sure to make it
available to support the
recorded observation by the chairperson of
the internal disciplinary enquiry.
[39]
The appellant as a
witness was not impressive. The record is replete with instances
where he was evasive and argumentative when
cross-examined. He
portrayed himself as a victim that the company was bent on conspiring
with everybody to have him dismissed.
He even went to the extent of
stating as a fact that on the day of the incident the employees of
the first respondent deliberately
gave him “
false change
”
so that his ‘
float
’ should not balance in order
for them to have charges preferred against him. It is surprising that
respondent’s employees
would do such a thing and at the same
time want to hold an outstanding enquiry after hours. The appellant
did not explain whether
his float ultimately balanced or whether it
did not balance as designed by the first respondent. If the float did
not balance,
it meant that he was to be charged once again for
variance cash in line with the respondent common course policy. This
version
of deliberately giving him a “
false charge
”
and conspiracy was not even put to the witnesses for the first
respondent as well as Dlamini.
[40]
I am of the view that
the finding by the Labour Court that what was reflected in the
findings of the chairperson of the enquiry
that he
“find
that there is insufficient evidence to substantiate unruly behaviour
”
is a typographical error is the correct finding. It is true that the
appellants did not approach their case on that basis.
That aspect was
never raised in the opening statement to the arbitration. Neither was
it raised during cross-examination of the
first respondent’s
witness. It was only raised during evidence in chief of the appellant
for him to give it his preferred
interpretation. The evidence
presented and the finding by the chairperson all indicate that the
appellant was found to have behaved
unruly otherwise there would not
have been any reason to dismiss him.
[41]
It cannot be suggested
that no reasonable decision maker could have made the findings that
the commissioner made in his award. Her
value judgment that the trust
relationship between the parties did not exist cannot be faulted. It
was never the appellant’s
case that the dismissal of the
appellant if found guilty of the misconduct would be an inappropriate
sanction. In my view it is
not necessary to deal with the allegations
that the Labour Court did not take cognisance of the LRA and the
Constitution, or that
the review Judge was not supposed to have heard
the matter and that he acted unfairly. These allegations are all
unfounded and
were correctly not argued and were correctly not
addressed in the appellant’s heads of argument.
[42]
What remains is the
issue relating to costs. There are in my view no grounds to interfere
with the order of the Labour Court about
the costs. However, I am of
the view that it would be in accordance with the requirements of the
law and fairness that each party
should pay its costs on appeal.
[43]
In the result I make the
following order.
1. The appeal is dismissed.
Each party is to pay its costs.
________________
Tlaletsi AJA
I agree
_________________
Waglay ADJP
I agree
__________________
Sangoni AJA
Date of hearing: 26 November 2009.
Date of Judgment: 29 January 2009
For the Appellant: Adv. L Memela
Instructed by: Mzamo Attorneys
For the respondent: Adv. F A Boda
Instructed by: Deneys Reitz
Attorneys