About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2014
>>
[2014] ZALAC 26
|
|
South African Breweries Ltd v Commisssion For Conciliation, Mediation And Arbitration and Others (CA13/2012) [2014] ZALAC 26 (30 May 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
NOT REPORTABLE
CASE NO: CA 13/2012
In
the matter between:
SOUTH
AFRICAN BREWERIES LIMTED
Appellant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION First
Respondent
TARIQ
JAMODIEN
N.O.
Second
Respondent
CEDRIC
KARSTENS
Third
Respondent
Heard:
29 August 2013
Delivered:
30 May 2014
Summary: review of
arbitration award. Employee dismissed for unauthorised consumption of
employer’s property and being intoxicated
while on duty-
evidence proving only unauthorised consumption of alcohol. Employee
misconducting himself- misconduct not
serious as to warrant
dismissal- lack of remorse and dishonesty not another charge but an
aggravating factor- arbitrator
finding dismissal inappropriate -
Labour Court refusing to intervene- Labour Court’s judgment
upheld- appeal dismissed with
costs.
Coram:
Waglay JP, Musi and Dlodlo AJJA
JUDGMENT
DLODLO
AJA
Introduction
[1]
This is an appeal against the judgment of the Labour Court. In its
judgment, the Labour Court found that the arbitrator reached
a
conclusion that a reasonable decision-maker could have come to and
that therefore such conclusion should not be set aside.
[2]
In the award, the Commissioner described the employee’s
(Karstens) dismissal as unfair. It is contended on behalf of the
Appellant that the award ought to have been reviewed and set aside on
the basis that the arbitrator’s approach to sanction
failed to
take into account material facts and that he over-emphasized certain
other considerations to the detriment of the Appellant.
The
contention made on behalf of the Appellant is that the extent of
Karstens’ dishonesty coupled with his recalcitrant attitude
in
the subsequent hearings displaced any mitigating effect that his
length of service and disciplinary record could have had. On
the
other hand, on Karstens’ behalf, the contention advanced is
that the arbitrator correctly applied the prevailing law
that
required him to determine under all the circumstances whether the
dismissal was fair.
[3]
The determination of whether the dismissal was fair is a requirement
that must be exercised by the arbitrator independently.
I set out the
factual background
infra
.
The factual
background
[4]
Karstens worked for the appellant as from 1989. Three counts of
misconduct were proffered against him and he was found guilty
on all
three counts on 15 March 2011. He was subsequently dismissed from the
employment upon the conclusion of all the internal
processes. The
charges Karstens faced were (a) Drinking alcohol on duty; (b)
Unauthorized removal and consumption of alcohol belonging
to the
appellant; (c) Operating machinery after having consumed alcohol. All
these charges, I hasten to add, emanated from one
incident. Karstens
was employed by the appellant as a process operator. It is apparent
from the record of the proceedings that
the appellant had been
experiencing theft of beers from its sample refrigerators. It then
installed a covert video camera in its
samples laboratory on 6
February 2011.
[5]
It was said that early in the morning of 7 February 2011, Karstens
took a 750 ml beer bottle from the appellant’s sample
refrigerator and consumed it. The CCTV footage used as evidence shows
that Karstens “
had taken a few sips from the bottle of
beer.”
Karstens then returned to work on the appellant’s
production line where he operated heavy machinery. When he was
confronted
with the CCTV footage, Karstens came up with an elaborate
and an untruthful defence. He stated that the bottle contained
carbonated
water and not beer. Even at his internal disciplinary
proceedings, an internal appeal hearing and the arbitration itself
this remained
Karstens’ defence. Karstens’ defence was,
however, rejected by the Commissioner as untruthful. In effect,
Karstens
was pronounced guilty of the charges proffered against him
as listed above. Notwithstanding these findings, the Commissioner
concluded
that the misconduct was not serious enough to warrant
dismissal.
[6]
The Commissioner concluded that the dismissal was substantively
unfair and reinstatement without back pay was ordered. It is
important to mention that the overriding fact in the Commissioner’s
view appears to have been that Karstens had long service
with the
Appellant. The latter then applied to the court
a quo
to
review and set aside the award. In concluding that the sanction of
dismissal was unfair, the Commissioner reasoned that (a)
the
breathalyzer test had measured o.oo% “
which implies that he
was fit to work and hence did not place the business at risk;”
(b) the first charge (drinking on duty) was described by the
Commissioner as a “
misdemeanour”
on the basis that
Karstens had taken “
a few sips from the bottle of beer;”
(c) the second charge was referred to as “
the unauthorized
taking of beer”.
The dishonesty displayed by Karstens’
failure to own up was contrasted by his long service and his
generally unblemished
disciplinary record. That led to the
Commissioner’s finding that Karstens deserved a sanction short
of dismissal. As stated
earlier on in this judgment, the review
application was unsuccessful primarily on the finding that the
conclusion reached by the
Commissioner was one which a reasonable
decision-maker could have reached.
Discussion
[7]
The review test is contained in the majority judgment of the
Constitutional court in
Sidumo and Another v Rustenburg
Platinum Mines Ltd and Others
(2007) 28 ILJ 2405 (CC);
[2007] 12
BLLR 1097
(CC). The review test set out in paragraph 110 of the
judgment reads:
‘
Is
the decision reached by the Commissioner one that a reasonable
decision-maker could not reach?’
The
Labour Appeal Court in the
Afrox
Healthcare
Ltd
v Commission for Conciliation Mediation and Arbitration and
Others
(2012) ILJ 1381 (LAC);
[2012] 7
BLLR 649
(LAC) per Mlambo JP in upholding an appeal brought by a
company commenced by undertaking an assessment of the Commissioner’s
reasoning in the context of the evidence led and concluded that the
Commissioner had not taken proper account of material placed
before
him and had failed to conduct a proper appraisal of the critical
portions thereof.
[8]
Turning to the review test (having referred to
Sidumo
matter
supra
and
Carephone (Pty) Ltd v Marcus NO and Others
[1998] 11 BLLR 1093
(LAC) and other authorities), the LAC held as
follows:
‘
The
fact of the matter is that the reasonable decision-maker yardstick
crafted in Sidumo, viewed in proper context, is none other
than that
in the absence of a ‘rational objective basis’ (
the
Carephone
test
)
between the decision arrived at and the material placed before the
decision maker, the relevant decision is clearly not one which
a
reasonable decision maker would have arrived at.’
[1]
[9]
In the instant matter, the Commissioner had to answer questions such
as (a) was Karstens guilty of the charges; and if so, (b)
was
dismissal a fair sanction; and, if not, (c) what penalty, if any,
should be imposed. This task on the shoulders of the Commissioner
had
to be performed by way of a
de novo
hearing and the Appellant
bore the
onus
of proof. The record of proceedings reveals that
when embarking on the analysis of the materials before him, the
Commissioner dispensed
with the defence put up by Karstens in respect
of the charges he faced. In other words, he indeed found that
Karstens was guilty
of misconduct. Then obviously the next issue the
Commissioner had to determine was what was a fair sanction. In
dealing with
the sanction, the Commissioner referred to the
Sidumo
judgment
supra
particularly where the judgment reads that
“
fairness requires a balancing of the interest (sic) of the
employer and employee parties”
and that “
[a]n
arbitrator must consider the totality of circumstances in determining
the fairness of the sanction.”
I agree with the proposition
made on behalf of Karstens that the arbitrator considered his role to
be the determination of whether
the employee’s dismissal was
fair based upon all the relevant circumstances. Notably, in the
award, the Commissioner recorded
the
ratio
of this Court in
Fidelity Cash Management Services v CCMA and Others
[2008] 3
BLLR 197
(LAC), namely, “…
the Commissioner would have
to answer the question whether dismissal was in all the circumstances
a fair sanction.”
demonstrates that the arbitrator was
alive to the issues placed before him for determination.
[10]
He correctly found that the Appellant was entitled to take a tough
stance on alcohol related misconduct and that the stance
should not
readily be interfered with. But the arbitrator had a duty to assess
“
all factors”
and come to a decision “
which
is even handed and fair.”
Upon the analysis of the evidence
and the charges proffered against Karstens, the record shows that the
arbitrator found that the
real issue was the drinking of alcohol
whilst on duty and the unauthorized taking of the property belonging
to the Appellant (in
other words, theft). According to the finding
made by the decision-maker, the only proof of the level of
intoxication was the physical
observation of Karstens drinking “
a
few sips of beer”.
It is common cause that the subsequent
breathalyzer test did not reflect any percentage of alcohol. The
conclusion arrived at by
the Commissioner that for purposes of
determining the fairness of the dismissal the first charge of
drinking on duty could not
conceivably have led (under all the
circumstances) to Karstens’ dismissal being justified, is being
assailed on behalf of
the Appellant.
[11]
As to the second charge (the consumption of the Appellant’s
property), the Commissioner (having weighed various factors,
aggravating and mitigating) concluded that despite the dishonesty
element “
fairness, however, demands that I seriously
consider factors such as the value of the items involved, the
employee’s length
of service and disciplinary record.”
The stance adopted on behalf of the Appellant on the latter aspect,
namely that the Commissioner ignored highly relevant considerations
(that is Karstens’ continued dishonesty and lack of remorse)
deserves consideration. I do not accept that the Commissioner
failed
to give consideration to the dishonesty element as such. This was, in
my view, considered by the Commissioner. It was not
an irrelevant
consideration that the Commissioner mentioned the following:
‘
...
taking into account the totality of the circumstances, I find that
after 22 years employment and with a generally unblemished
record
[Karsten] deserved a sanction short of dismissal.’
[12]
On behalf of the Appellant, it was contended that seeing that
Karstens’ transgressions involved dishonesty, he should
have
been dismissed. For this contention reliance is placed on authorities
such as
Hulett Aluminium (Pty) Ltd v Bargaining Council for the
Metal Industry
[2007] ZALC 93
;
[2008] 3 BLLR 241
(LC) para 42, cited with
approval by the LAC in
Miyambo v CCMA
and Others
[2010]
10 BLLR 1017
(LAC) paragraph [16], where an employee persisted in her
dishonesty by denying that she had participated in any wrongdoing
(theft
of scrap metal) at her disciplinary hearing and the
arbitration. The court held
inter alia
that: “
...the
presence of dishonesty tilts the scales to an extent that even the
strongest of mitigating factors, like long service and
a clear record
of discipline are likely to have minimal impact on the sanction to be
imposed...whatever the amount of mitigation,
the relationship is
unlikely to be restored once dishonesty has been established in
particular in a case where the employee shows
no remorse.”
[13]
Notably also in
Kalik v Truworths (Gateway) and Others
[2008]
1 BLLR (LC) it was held by the Labour Court that an employment
relationship “…
.broken down as a result of an act of
dishonesty can never be restored by whatever amount of mitigation.
The underlying reason for
this approach is that an employer cannot be
expected to keep dishonest workers in his/her employ. The other
reason for this is
to send an unequivocal message to other employees
that dishonesty will not be tolerated.”
[14]
It was argued on behalf of the Appellant that the Commissioner
misconceived the correct test when considering the fairness
of the
sanction meted out to Karstens. According to the Appellant’s
contention, the arbitrator was required to determine
what was a fair
sanction rather than one that was “
appropriate.”
This is derived from the test as formulated by Navsa AJ in
Sidumo
supra
where the learned judge held that in terms of the LRA, a Commissioner
has to determine whether the dismissal is fair. But importantly,
Navsa AJ continued to clarify and held that in arriving at a
decision, a Commissioner is not required to defer to the decision
of
the employer but what is required is that he or she must consider all
relevant circumstances. Davis JA clarified and even simplified
the
task to be undertaken by the Commissioner in
Wasteman
Group v SAMWU and Others
[2]
when he held
inter
alia
that:
‘
The
Commissioner is required to come to an independent decision as to
whether the employer’s decision was fair in the circumstances,
these circumstances being established by the factual matrix
confronting the Commissioner’
.
[15]
I agree with the court
a quo
that the Commissioner’s
role is not akin to the role of the court sitting in review of the
arbitrator’s decision. The
Commissioner decides whether the
decision to dismiss was fair but the court reviewing the matter may
only decide whether the arbitrator’s
decision was so
unreasonable that no other arbitrator could have reached the same
decision. Therefore, in the instant matter, the
only question that
arises for determination is whether the Commissioner improperly
disregarded certain factors in mitigation or
in aggravation. Perhaps
one needs to stress that it is not my understanding of the test per
Sidumo supra
to be whether the Commissioner attached deserved
and/or appropriate weight to each individual factor or reached a
conclusion that
was (in the view of the Court) the correct one. The
test formulated in
Sidumo
supra
confirms earlier
decisions of this Court that there is a “
range of reasonable
outcomes”
in any matter.
[16]
The Commissioner clearly accepted that there are many authorities
that “deem” all acts of dishonesty to cause a
breakdown
in the continuation of the employment relationship. But he was then
alive to the requirement that each case had to be
treated on its own
merits and that not all cases involving dishonesty deserved the
ultimate sanction of dismissal. The Commissioner
correctly stated
that it was his duty to holistically assess these factors given the
context of the matter and in accordance with
the trite principle that
dismissal will not be lightly resorted to but is and remains reserved
only for the most serious misconduct.
One of the factors that
influenced the Commissioner’s finding was the degree of
consumption and the question of whether the
drinking of this beer
rendered Karstens intoxicated. Mr. Karstens had “
a few sips”
and this finding was based on the visual evidence contained in the
CCTV recording. This in turn received some confirmation from
the
subsequent breathalyzer test.
[17]
On behalf of the Appellant, it was submitted that it was unreasonable
for the Commissioner to make a finding that only a few
sips had been
consumed whilst the probabilities showed that the entire 750 ml
bottle had been consumed. It was pointed out that
many hours had
passed between the actual drinking of the beer and the use of the
breathalyzer such that the blood alcohol level
had diminished
irrespective of how much Karstens had drunk. However, the fact of the
matter is that the only evidence presented
showed that Karstens drank
a few sips from the bottle and not that he consumed all the contents
of the bottle. There was thus no
other evidence with regards to the
balance of the contents of the bottle. I do not accept that the
Commissioner should have concluded
that the balance of the contents
of the bottle had been consumed as well, probably outside of the area
of view of the CCTV camera.
There was simply no evidence to that
effect. The Appellant remained burdened with the
onus
of
proof. The results of the breathalyzer negatived the possibility of
intoxication on the part of Karstens. I hold the view that
it was
completely rational for the Commissioner to have found as he did that
there was little, if any, risk posed to the Appellant
or its
employees by the conduct of Karstens. He also found that the degree
of theft was serious.
[18]
Indeed no evidence was led that the relationship of trust between the
Appellant and Karstens had in fact been destroyed irretrievably.
The
high water mark in this regard is Macauley’s (who gave evidence
on behalf of the appellant) “
disappointment”
with
Karstens given their lengthy history of working together. It is so
that another Commissioner might have reached a different
conclusion.
But I remain of the view that the conclusion reached by the
Commissioner in the instant matter is not one that no reasonable
Commissioner could reach. It is certainly within the range of
reasonable outcomes. The Commissioner considered Karstens’
lack
of contrition and he took this factor into account when deciding the
question of whether dismissal was fair and whether reinstatement
was
appropriate. He found that having balanced this factor with the other
factors, reinstatement without retrospectivity was a
fair outcome to
the dispute.
[19]
In
Edcon Ltd v Pillemer NO and Others
[2010] 1 BLLR 1
(SCA),
the Supreme Court of Appeal expressed the view that an employee’s
dishonest conduct during an investigation following
the commission of
the misconduct with which the employee was charged could not be
elevated to in effect become a new disciplinary
charge. Such conduct
remained an aggravating factor, and as such, it is to be assessed
holistically along with all other relevant
factors. Ultimately it was
for the employer to demonstrate what effect the employee’s lack
of candour had on the employer’s
business. The SCA in saying
the aforegoing was referring to the decision of this Court in
De
Beers Consolidated Mines Ltd v CCMA and Others
[2007] 12 BLLR
1097
(LAC). This Court in
Wasteman
matter
supra
also
recognized that the degrees of misconduct could find their expression
in the award ultimately made by the arbitrator or judge.
Thus in the
same
Wasteman
matter
supra
, the judge in the court
a
quo
had corrected the arbitration award to reinstate the employee
with limited retrospective effect. The same approach was adopted in
the instant matter by the Commissioner.
[20] In
Wasteman
matter
supra,
this Court made the following finding:
“
The
logic of the argument, namely that the [arbitrator] considered this
to be the ultimate form of insubordination, while the learned
judge
in the court a quo considered it to be short of the ultimate
sanction, simply does not stand up to scrutiny. There is an
enormous
difference between an order which seeks to take insubordination
seriously, but notwithstanding, orders reinstatement and
one who
(sic) denies an employee any opportunity of working for that
employer.”
[3]
There
is no basis in law or in logic to distinguish this approach from
cases involving dishonesty, particularly of the sort perpetrated
by
Karstens. There are questions of degree and the Commissioner was (all
factors considered) entitled to determine to his own satisfaction
whether the sanction of dismissal was fair and, if not, what sanction
ought to have been applied to remedy the wrong.
Order
[21]
In the circumstances, I would make the following order:
(a)
The appeal is hereby dismissed with costs.
_____________
Dlodlo
AJA
I agree
.
_____________
Waglay,
JP
I
agree
______________
Musi
AJA
[1]
Afrox
Healthcare
Ltd
at
para
21.
[2]
[
2012]
8 BLLR 778
(LAC) at para 781D-E.
[3]
At 783I-J.