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[2014] ZALAC 111
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SOUTH AFRICAN BREWERIES LIMITED V KARSTENS (CA 13/2012) [2014] ZALAC 111 (30 May 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR APPEAL
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.