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[2009] ZALAC 22
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South African Breweries v Mothata (JA29/2007) [2009] ZALAC 22 (25 February 2009)
3
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD IN JOHANNESBURG)
CASE NO
: JA29/2007
In the matter between
SOUTH AFRICAN BREWERIES Applicant
and
WELLINGTON MOTHATA Respondent
_________________________________________________________
J U D G M E N T
_________________________________________________________
ZONDO JP
: This is an appeal from a judgment of the
Labour Court, in terms of which that court reviewed and set
aside an arbitration
award that had been issued by the third
respondent, a Commissioner of the Commission for
Conciliation Mediation and Arbitration
in a dispute between the
appellant and the first respondent about the fairness or otherwise of
the dismissal of the first respondent
by the appellant from its
employ.
In terms of that arbitration award, the third respondent found that
the first respondent was guilty of lying to Mr Mohamed
of the
Human Resources department of the appellant and that the
dismissal was fair or dismissal was a fair sanction for the
misconduct.
The first respondent was aggrieved by that arbitration award and
brought an application in the Labour Court to have the award
reviewed and set aside.
As I have already indicated, that application was successful and the
Labour Court reviewed and set aside that award. In
addition,
the Labour Court ordered the appellant to reinstate the first
respondent with the retrospective effect to the date
of dismissal and
to pay the first respondent’s costs.
The Labour Court subsequently granted the appellant leave to
appeal to this Court. Before I deal with the appeal, it is
necessary
to set out the facts as they emerge from the evidence given by the
parties in the arbitration.
In this regard, it is necessary to point out that most of the
relevant facts are not in dispute between the parties. The appellant
in this matter is South African Breweries Limited, a
well known company about which it is not necessary to elaborate.
It
operates from various parts of the country, including Polokwane in
the Limpopo province.
The first respondent is Mr Wellington Mothata, a former
employee of the appellant about whom I shall say more shortly.
The second respondent is the
Commission for Conciliation Mediation and Arbitration
(the CCMA). The third
respondent is Mr Jonas Shipalama, a
Commissioner of the CCMA who arbitrated the dispute between the
appellant and the
first respondent about the fairness, or otherwise
of the first respondent’s dismissal, which is the subject of
the litigation
which has led to this appeal.
The first respondent had been employed by the appellant for 17 years
when he was dismissed in September 2004. He was
based in
Polokwane at the time of his dismissal. In 2000 the appellant had
entered into a contract with the first respondent in
terms of which
for a period of 4 years, the first respondent was going to
pursue a program that would lead to his qualifying
as an artisan.
Some of the training was on the job training, whereas another part of
his training was theory, which was to be
dealt with at a training
institute in Kyalami in Johannesburg.
It would seem that from around July, if not earlier, of 2004 the
first respondent was attending his training at the training institute
referred to earlier in Johannesburg and was therefore not in Limpopo
where he was normally based. It would further seem that before
the
first respondent left Polokwane, the appellant intended to convene a
disciplinary enquiry in which he would have to answer
an allegation
that he had said that a certain manager was racist. This emanated
from his dissatisfaction with the finding made
by that manager in
connection with a grievance or complaint that he, that is the first
respondent, had lodged internally in the
company alleging certain
irregularities perpetrated, according to him, by certain employees or
managers within the company.
The first respondent left Polokwane before that disciplinary enquiry
could be convened. Consequently, after the first respondent
had left
Polokwane for his training in Johannesburg, the appellant made
attempts to have the disciplinary enquiry convened during
a time
before the first respondent would complete the period of training
that he was to spend in Johannesburg.
The first respondent adopted the attitude that the disciplinary
enquiry should not be convened until he had completed his training
in
Johannesburg and was back in Polokwane. He said he wanted to focus
or concentrate on his training, or on the preparation for
his test
that he would write at some stage when he was still in Johannesburg.
He put this in an email dated 19 July 2004.
That email
read as follows:
“Kindly be informed that due to the change in trade testing
system in Oliphant’s and further the untimely resignation
of
millwrights facilitator a lecturer, Daniel Nthai, by the end of
July 2004, I am obliged to prioritise to do the job which
are more on
the mechanical side first as I will be amongst those who will first
be tested, based on the new system. I will then
need more time so
that I should endeavour to cover the mechanical scope before he
leaves. And I propose that the hearing be moved
to the third week of
September 2004. Your cooperation in this regard will be highly
needed.”
The appellant subsequently accepted the above reason as valid not to
have the disciplinary enquiry set down before September 2004.
The next event that took place happened on 5 August 2004.
Mr Mohamed who as I have indicated, is or was in the
Human Resources department of the appellant and referred to
himself in the evidence as a Human Resources Specialist
in
the employ of the appellant in Limpopo and the first respondent had a
telephone conversation, actually two or even three telephone
conversations on that day. There is no significance to whether it
was two or three telephone conversations that the two men had.
The
first was a call made by the first respondent to Mr Mohamed
about a request for a loan that he had made to the appellant
for his
child.
It is common cause that in one of the telephone conversations,
Mr Mohamed asked the first respondent whether the latter would
be available if the pending disciplinary enquiry was set down
for
10 August 2004. The first respondent’s answer was to
the effect that he was not available and he referred
Mr Mohamed
to his email of 19 July 2004 to which I have already
referred. Mr Mohamed accepted this and did
not pursue the
matter of the setting down the disciplinary enquiry for
10 August 2004.
I shall deal later with the detail of the first respondent’s
response to this suggestion or enquiry by Mr Mohamed.
Mr Mohamed had thought that, since it was going to be a long
weekend, the first respondent would be paying a visit to his
family
in Polokwane and could, therefore, delay his return to Johannesburg
by a day or two and attend the disciplinary enquiry.
It is common cause that at some stage on 5 August 2004
Mr Mohamed received a notification from the
Food and Allied Workers Union
that that union
would have a meeting in Port Elizabeth from the 10
th
to 14 August 2004 and that the union was asking that the
first respondent be released to attend that meeting. At this
stage I
must point out that the first respondent was a shopsteward of the
Food and Allied Workers Union in
the appellant’s
plant in Polokwane. The first respondent suggested in his evidence
that his telephone conversation with
Mr Mohamed was after 12:00
whereas Mr Mohamed testified that the conversations were all in
the morning.
Although the first respondent suggested that when he and Mr Mohamed
spoke on the telephone on 5 August 2004 about
the
possibility of setting down the disciplinary enquiry referred to
earlier on, Mr Mohamed had already received the notification
from the union about the Port Elizabeth meeting. I am prepared
for purposes of this judgment to assume, without deciding,
that the
conversations took place in the morning and before Mr Mohamed
received the notification.
It is common cause that the evidence on record does not reveal that
after receiving the notification, Mr Mohamed took any
steps to
speak to the first respondent about such notification nor about the
meeting or about what they had discussed earlier in
one of the
telephone conversations, in the light of the notification from the
union about the meeting in Port Elizabeth.
I have already pointed out that the notification from the
Food and Allied Workers Union was to the effect
that the company was being asked to release the first respondent to
attend that meeting in Port Elizabeth which was to take
place
from the 10
th
to 14 August.
According to Mr Mohamed it came to his attention during the
week of 13 August, that is during the week when the union
meeting in Port Elizabeth was taking place, that the first
respondent was not at the training institute in Johannesburg.
This
occurred because apparently somebody at the institute was looking for
the first respondent, wanting to give him another room,
but could not
find the first respondent and an email was then sent to the
appellant’s plant in Polokwane. The fact of the
matter is that
the first respondent was in Port Elizabeth at the time attending
the union meeting referred to earlier. This
was the meeting about
which Mr Mohamed had been notified by way of the letter or
notification of 2 August on 5 August 2004.
Notwithstanding the fact that Mr Mohamed had read that
notification on 5 August 2004, his evidence in the
subsequent
arbitration was to the effect that prior to the week of
13 August, he was not aware that the first respondent was
attending
the union meeting in Port Elizabeth during that week
and was therefore not at the training institute. It would also seem
that Mr Mohamed, after receiving the notification of the union
meeting in Port Elizabeth on 5 August, did not expressly
grant any permission for the first respondent to attend that meeting.
The first respondent testified that, before he went to attend the
union meeting in Port Elizabeth, he had asked a Mr Hadebe
from the institute for permission to attend the union meeting. It
would seem that he got such permission on 5 August 2004.
The first respondent testified that he was telephoned at some stage
on 5 August by the union’s regional office about
the union
meeting in Port Elizabeth the following week and was furnished
with a notification of such meeting. He testified
also that he then
made arrangements that the notification to the plant management in
Polokwane dated 2 August referred to
earlier; be emailed to the
plant and he spoke to a Mr Mtabane, a shopsteward and asked him
to go to a certain fax machine
and take that notification and make
sure that Mr Mohamed received it. This evidence by the first
respondent was not challenged
nor contradicted.
Mr Mohamed testified that when during the week of 13 August,
he learned that the first respondent was not at the institute
and was
attending the union meeting, he thought that the first respondent had
lied to him when he had spoken to him on 5 August
about
scheduling a disciplinary hearing for 10 August.
I shall say shortly what Mr Mohamed said he believed the first
respondent had lied about. He regarded the first respondent
as
having committed an act of dishonesty and instituted disciplinary
proceedings against the first respondent.
The allegation of misconduct that was preferred by the appellant
against the first respondent was framed in the following terms:
“It is alleged that you are guilty of dishonesty; in that on or
about 5 August 2004, you lied to Rodney Mohamed
(HRS
which would stand for Human Resources Specialists); in
regard to your availability for a disciplinary hearing on
10 August 2004, stating that you will be at TI, that is the
Training Institute; preparing for your trade test; knowing
that you
will be attending a union meeting in Port Elizabeth from the
10
th
to 14 August 2004. Subsequently a
disciplinary enquiry was convened, evidence was led and the first
respondent was found
guilty and dismissed.”
As I indicated earlier on, he was aggrieved by that dismissal and
subsequently referred the dispute about the fairness or otherwise
of
the dismissal to the CCMA for arbitration. And the result of that
arbitration is or was as indicated earlier on in this judgment.
It
is important to bear in mind exactly what the allegation was that the
first respondent faced in the disciplinary enquiry and
I have just
quoted the actual charge that he faced. I wish to draw attention in
regard to that charge to the fact that it seems
to be saying that
what he lied about was that he would be at TI, that is at the
Training Institute, preparing for his trade
test, knowing that
he would be attending a union meeting in Port Elizabeth.
In his evidence in the arbitration, the first respondent admitted
that at the time that he spoke to Mr Mohamed on 5 August 2004,
he was aware of the fact that there was going to be a meeting in
Port Elizabeth and that he was required to attend that meeting.
It is that knowledge, it seems, that the appellant relied on to say
that he lied because he knew that he was going to be at the
union
meeting in Port Elizabeth. But, as I have indicated, it is very
important to bear in mind exactly what the charge was
and what he is
alleged to have lied about.
In order to establish whether or not the evidence that was led
before the arbitration proved that the first respondent lied as
alleged, it is necessary to look at the evidence that was given by
Mr Mohamed, because obviously, only Mr Mohamed and
the
first respondent could tell the Arbitrator exactly what the first
respondent said to Mr Mohamed in that conversation.
I have indicated earlier on that the conversations that took place
between Mr Mohamed and the first respondent commenced
with a
telephone call that was made by the first respondent to Mr Mohamed
about the loan for his child that he had requested,
and he wanted
Mr Mohamed to make a follow up to establish exactly what was
going on about it and according to Mr Mohamed,
when he later on
returned to the first respondent to give him a report back on the
issue of the loan, he raised the issue of the
setting down of the
disciplinary enquiry.
In his evidence, Mr Mohamed was asked what happened when he
reverted to the first respondent about the loan and he said and
I
quote his evidence and I take it from Volume 1 at page 49 at the
right corner of the page at the top; and Mr Mohamed said:
“In our telephonic discussion I gave him (the first respondent)
feedback in terms of the loan and then I asked if he was
going to be
available for the hearing after the long weekend. He then informed
me that he wants to prioritise as per his previous,
he sent to me a
previous mail when I requested that he have it. He said that he
wants to concentrate fully on his trade test,
he does not want any
interruptions. Because the company has invested a lot of money in the
trainee, obviously you know it is important
for the employee to get
his trade test. So then I said it is fine. Being a long weekend, I
wanted to find out has he changed his
position in terms of that. And
then he is asked, he had told you previously that he wanted to
concentrate on his – and then
Mr Mohammed answers;
concentrate, it is a six week period. And then later on,
Mr Mohammed said; because it is a
long weekend he is going to be
coming up if has changed his mind in terms of his previous email, if
he could make himself available
for the disciplinary issue. He then
informed me; no, as per my previous mail, I want to concentrate on my
training and I was also
aware of staff shortages, because there was a
lot of turnover at TI; he indicated to me.”
The first respondent also gave evidence and the gist of his evidence
was that he was aware of the union meeting that was scheduled
for the
10
th
to 14 August and that he was required to attend
it. And that what he said to Mr Mohamed in the telephone
conversation
in question on 5 August was effectively to refer
him to the position he had taken in his email of 19 July, which
I have
quoted in full earlier in this judgment.
When one has regard to the evidence that was given by Mr Mohamed
and the evidence that was given by the first respondent;
it is quite
clear that the position taken by the first respondent, in relation to
the enquiry from Mr Mohamed on 5 August,
was o say: please
refer to my email of 19 July; the reasons which I gave in that
email, as to why the disciplinary enquiry
should be held in September
still stand. He did not put it in those terms, but there can be no
doubt when one reads his evidence
carefully and reads that of
Mr Mohamed that that indeed was what he was saying. And indeed
just as previously, the company
had accepted that as a valid reason
not to hold the disciplinary enquiry before September. Mr Mohamed
on this occasion on
5 August also accepted that the disciplinary
enquiry would have to wait.
The charge that the first respondent faced in the disciplinary
enquiry was that he had lied in that he had said that he would
be at
the training institute. Now, that could only be a lie if it means
that he said he was going to be in Johannesburg at the
Institute on
10 August; namely the date which Mr Mohamed wanted for the
disciplinary enquiry.
There is absolutely no evidence that the first respondent said to
Mr Mohamed that on 10 August he would be in Johannesburg
at
the training institute. What he said was; I stand by the reasons
that I gave in my previous email; namely that of 19 July;
don’t
schedule the disciplinary enquiry before September.
If the first respondent lied or intended to hide from Mr Mohamed
the fact that he was going to be at the union meeting in
Port Elizabeth on the 10
th
, one would have to find
the motive for him to lie about that. Counsel for the appellant was
asked during argument what he submitted
would have been or was the
first respondent’s motive for lying. Counsel for the appellant
had difficulty with making a submission
about what the motive was.
Indeed, when one has regard to what the first respondent did, in
order to try and ensure that Mr Mohamed
got notified about the
union meeting in Port Elizabeth and that he sought to be
released to attend that meeting, it becomes
very difficult to say
that the first respondent intended to or did lie about the meeting,
or did have a motive for hiding the fact
that he was going to attend
the union meeting.
The evidence which I have already indicated earlier on, by the first
respondent was that he emphasised to Mr Mtabane, one
of the
shopstewards that Mr Mtabane should make sure that Mr Mohamed
got the notification from the union, which was to
the effect that the
union was asking Mr Mohamed or the company to release the first
respondent to attend that meeting. If
the first respondent did not
want Mr Mohamed to know about the meeting, and that the union
wanted him to attend the meeting,
he would not have wanted Mr Mohamed
to be aware of that meeting. Furthermore, there was evidence by the
first respondent
that in the past, Mr Mohamed or the company had
never refused to whenever he needed to go and attend a union meeting.
Indeed, Mr Mohamed in his evidence was asked whether there
would have been any motive for the first respondent to lie with
regard to attending that meeting. And Mr Mohamed’s answer
was that the first respondent had no motive to lie, because
he had
always released him. It is true that, on the one hand, the first
respondent gave evidence to the effect that he did not
need
permission from the management for him to attend the meeting but it
is quite clear, when one reads the notification from the
union, as
well as when one reads the collective agreement between the appellant
and the Food and Allied Workers Union
that
permission is required. And to that extent the first respondent must
have been mistaken about that. But the first respondent
gave
evidence that he did obtain permission from Mr Hadebe. And
therefore, he did not go to the union meeting without anybody
knowing
about it. He might have got permission from a wrong person. Indeed
that submission was made on behalf of the appellant.
But it does not
appear that the appellant took that issue seriously, because if it
had taken it seriously, I have no doubt that
it would have added a
second charge in his disciplinary enquiry, namely attending a union
meeting without permission. The fact
of the matter is that the
appellant did not charge the first respondent with misconduct in
terms of attending the union meeting
without permission from the
person who was supposed to give such authority.
If the first respondent was dishonest, he would have had to
misrepresent the facts to Mr Mohamed intentionally. He could
not be dishonest if he acted negligently. Accordingly, one has to
look at his own subjective state of mind and there is absolutely
nothing in the evidence that was led before the Arbitrator to suggest
that in his own mind subjectively, he intended to mislead
or
misrepresent any facts to Mr Mohamed.
It seems to me that Mr Mohamed misconstrued what the first
respondent said to him. It may well be that, if Mr Mohamed
had
rejected the reason advanced by the first respondent in his email of
19 July for saying that the disciplinary enquiry
should not take
place before September; it may well be that if Mr Mohamed had
rejected that reason, the first respondent might
have said to
Mr Mohamed in any event, there is another reason; I have a union
meeting to attend. But, that stage was not
reached, because
Mr Mohamed accepted the first reason advanced, namely the reason
that he had always advanced in terms of
his email of 19 July.
I have dealt with this matter in the manner in which I have dealt
with it fully conscious of the fact that the matter that was
before
the Labour Court was a review application. And therefore the
Labour Court was not dealing with the matter as
a court of first
instance. And that this court should also deal with the matter on
the same basis, because it was the Arbitrator
who was the tribunal of
first instance to deal with the matter.
But, it becomes then necessary to look at the review application and
decide whether or not the court
a quo
was correct in the
conclusion that it reached, namely to grant the review application
and set aside the arbitration award.
When one has regard to the founding affidavit in the review
application; one of the complaints advanced by the first respondent
is to be found in paragraph 7.8 of the founding affidavit and it
reads as follows:
“The third respondent which is the Commissioner, failed to
consider whether in the circumstances of the case, the sanction
of
dismissal was justified in the disputed event that I was found to
have lied to the first respondent. I submit that even in
that event,
the third respondent should have found that my misconduct was not of
such a serious nature as to warrant a dismissal
regard being had to
the fact that I served the first respondent faithfully and diligently
for a period of over 17 years uninterruptedly.”
This complaint by the first respondent refers to the arbitration
award and how the Commissioner dealt with the matter. The
Commissioner
deals with substantive fairness from the last paragraph
of page 18 of his award; which is page 24 of the record, which is to
be
found in Volume 1. In that last paragraph, he first deals with
the arguments advanced by the parties. And then he says: “The
applicant also confirmed under cross examination that he knew on
5 August when he spoke to Mr Mohamed that on the 10
th
he would be attending a meeting in Port Elizabeth and therefore
would not be in Johannesburg. However, the applicant’s
defence
is that he did not have to seek permission from Mohamed but from
Hadebe which he did. Therefore, he did not commit any
misconduct.
However, if that was the case that it was not necessary for the
applicant to obtain Mohamed’s permission, why
did the union
have to waste its resources and fax a letter to Polokwane Brewery.
Further, why did the applicant go to such
lengths as asking
Adone Mtabane to make sure that Mohamed personally receives the
fax pertaining to his release and the meeting
in the Port Elizabeth.”
That of course relates to the issue of permission, but then later on
in page 25 the Commissioner says; “Overall, I found
the
respondent’s case to be more probable then that of the
applicant. I therefore find that the applicant lied to Mr Mohamed
and thereby been dishonest about the real reason for unavailability
for the disciplinary hearing on 10 August 2004.
I
therefore find that the company succeeded in proving that it had a
fair reason to dismiss the applicant as required in terms
of
Section 188(1)(a) of the LRA.”
It is quite clear that in his award the Commissioner did not after
finding that the first respondent had lied to Mr Mohamed,
asked
the question whether or not, or expressly asked the question, whether
or not dismissal was an appropriate sanction in the
circumstances of
the case. And in regard to that question, of course he would have
had to have regard to all such mitigating circumstances
as they were
before him one of which was that the first respondent had served the
appellant for about 17 years without any interruption.
Counsel for the appellant submitted before us that the fact that the
Commissioner did not in his award refer expressly to that
part of the
enquiry where he was supposed to deal with the question whether or
not dismissal was a fair sanction in the circumstances,
did not mean
that he did not consider it.
It is true that Commissioners are not required in terms of the Act
to give lengthy reasons for their award, for obvious reasons.
And it
is true that there will be cases where a Commissioner has not
referred to a specific factor that he took into account,
in his award
but, nevertheless, can be taken to have taken into account.
However, in those cases where the aspect that the Commissioner did
not deal with expressly in his award, is quite critical, it
would be
difficult to say why the Commissioner would leave out of his award a
critical aspect of the case that he was supposed
to consider.
In my view, the question of whether or not, if an employee is
guilty of misconduct, the sanction of dismissal is a fair sanction,
is a critical matter. Indeed, in this case it was a critical issue.
And the fact that the Commissioner did not expressly deal
with it, it
seems to me is indicative of the fact that he did not consider it.
And failure to consider it was a gross irregularity,
because he
should have considered it.
But apart from that, the Commissioner in his award dealt with the
matter on the basis that the evidence by the first respondent
and
that of Mr Mohamed about what the first respondent said to
Mr Mohamed was materially different. The fact of the
matter is
that, the evidence of the two witnesses was not really materially
different. Construed properly, they both said that
the first
respondent’s response to Mr Mohamed, when Mr Mohamed
asked him whether he was available for 10 August;
was
effectively to refer him to the reason advanced in his email of
19 July. Both witnesses in effect said that that is what
the
first respondent did. And a reference to that email was a reference
to the effect that he wanted to focus on his training
and did not
want the interruption of a disciplinary hearing before he completed
his training.
In the evidence there is nothing in Mr Mohamed’s evidence
to the effect that he said that on that day, that is the
first
respondent, he would be in Johannesburg.
In those circumstances, it would seem that the Commissioner
completely misconstrued the evidence of the two witnesses. And this
led to the finding that he made that the first respondent had lied to
Mr Mohamed.
In those circumstances, it seems to me that the finding made by the
court
a quo
that the award issued by the Commissioner was not
justifiable, was fully justified.
Indeed, I am of the opinion that, when one has regard to the
totality of the evidence that was given in the arbitration, and if
the Commissioner had properly understood that evidence, the
Commissioner would not have reached the conclusion that he reached.
I have no doubt in my mind that the finding that the Commissioner
made is not a finding that a reasonable decision maker could
have
reached if he had applied his mind properly to the evidence that was
led.
And in those circumstances, I am of the view that the appeal should
fail and that the appellant should be ordered to pay costs.
Zondo JP
I agree:
_____________________
Davis JA
I agree:
_____________________
Jappie JA
That is the order of the Court:
______________________
Zondo JP.
Date of Judgment: 25-02-2009