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[2015] ZALAC 38
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First Garment Rental (Pty) Ltd v Commision for Conciliation, Mediation and Arbitration and Others (JA01/14) [2015] ZALAC 38; [2015] 11 BLLR 1094 (LAC) (9 September 2015)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA,
JOHANNESBURG
Case
no: JA01/14
DATE: 09
SEPTEMBER 2015
Not
R
eportable
In
the matter between:
FIRST
GARMENT RENTAL (PTY)
LTD
.............................................................................
Appellant
And
COMMISION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
..................................................................................................
First
Respondent
COMMISSIONER
SETLAGO
MORWA
..............................................................
Second
Respondent
SOUTH
AFRICAN TRANSPORT AND
ALLIED
WORKERS
UNION
...................................................................................
Third
Respondent
WILLIAM
MLANGENI
..........................................................................................
Fourth
Respondent
MAKI
MARY
MORARE
............................................................................................
Fifth
Respondent
Heard:
17 March 2015
Delivered:
09 September 2015
Summary: Review
of arbitration award – employees dismissed for allegedly
assaulting manager during violent strike –
video tape recording
assaults adduced as evidence – video recording no evincing that
employees assaulted manager –
commissioner finding dismissal
substantively unfair – award reasonable – Labour Court’s
judgment upheld –
appeal dismissed.
Coram: Landman
JA, Sutherland JA, and Mngqibisa-Thusi AJA
JUDGMENT
MNGQIBISA-THUSI,
AJA
[1]
The appellant is appealing against the
whole judgment of the Labour Court (Bruinders AJ) handed down on 23
October 2013, dismissing
appellant’s application to review and
set aside the award issued by Mr Setlago Morwa (the arbitrator),
acting under the auspices
of the Commission for Conciliation,
Mediation and Arbitration (the CCMA), in which it was held that the
dismissal of the fourth
and fifth respondents was substantively
unfair. The appeal is with the leave of the Labour Court.
Factual
background
[2]
During August 2011, there was a strike
organised by South African Transport and Allied Workers Union
(SATAWU) at the appellant’s
Spartan plant in which some of its
employees did not join. The strike became violent, intimidation and
assault of non-striking
employees took place. On 15 August 2015, the
appellant obtained an interdict against SATAWU and its members who
were involved in
the strike as a result of the intimidation and
interference with non-striking workers. Furthermore, during the
course of the strike,
some of the strikers allegedly assaulted one of
the appellant’s managers, Mr Tshepo Thipe (Thipe). Mr Dennis
Hoy (Hoy), the
appellant’s general manager, took video footage
of the conduct of the strikers. Based on the video footage, the
fourth respondent
(Mlangeni) and fifth respondent (Morare) were
identified as having assaulted Thipe. As a result, Mlangeni and
Morare were charged
with the alleged assault of Thipe, who it is
alleged sustained some injuries.
[3]
At a disciplinary hearing scheduled by the
appellant, Mlangeni and Morare were found guilty as charged and were
dismissed.
Arbitration
[4]
SATAWU, acting on behalf of Mlangeni and
Morare, referred an unfair dismissal dispute to the CCMA. When
conciliation failed, the
dispute was referred to arbitration for
determination of whether the dismissal of Mlangeni and Morare was
substantively unfair.
[5]
At the arbitration hearing, both Hoy and
Thipe identified Mlangeni and Morare as having assaulted Thipe.
Further, Hoy and Thipe
testified that on the day of the assault,
Thipe had tried to lay a charge of assault with the police but the
police discouraged
him from doing so as he did not have visible
injuries. During cross-examination and when confronted with the video
footage taken
for identifying strikers who misconducted themselves,
which did not have photos of either Mlangeni or Morare assaulting
Thipe,
Hoy testified that he did not capture the alleged assaults, as
he was too shocked to see an assault on a manager. Thipe could not
explain why, despite having gone to the police station several times
on the day in question to depose to affidavits relating to
the
application for an interdict, he did not lay a criminal charge
against Mlangeni and Morare. The appellant’s third witness,
Amon Mohamme, testified that he did see Thipe being assaulted but
could not identify his assailants. Both Mlangeni and Morare denied
assaulting Thipe. Mlangeni admitted carrying a stick, which he
described as a traditional weapon but denied using it to assault
Thipe.
[6]
The arbitrator, faced with two mutually
destructive versions, concluded that Mlangeni and Morare’s
dismissal was substantively
unfair, and went on to state that:
‘
17.The
charge against the applicants is that they assaulted the manager and
caused injuries to him. The respondent produced
a bundle of
documents in which photos of strikers were included. There is no
single photo that sought to deal with the charges
against the
applicant (
sic
).
The photographer stated that he was shocked by the assault and
therefore failed to take the photos. It is my view
that the
respondent’s photos are irrelevant, as they do not assist in
proving any charge against the applicants. The
photos were
taken to show that the applicants were violent during the strike, and
to freeze when the actual reason for which you
are taking the photos
is before you, is not convincing. The assault on the manager is
viewed as a serious issue, and the
reason for failure to capture such
evidence is shocking in itself.’
[7]
Further, the arbitrator concluded that the
failure by Thipe to report the assault to the police in spite of the
fact that he had
visited the police station more than 10 times on the
day of the assault and the failure to provide evidence on injuries
sustained
is not consistent with the facts proving the assault. The
arbitrator further concluded that the appellant had failed to
discharge
the
onus
of proving the assault and therefore found the dismissal of Mlangeni
and Morare to be substantively unfair.
[8]
The arbitrator ordered the reinstatement of
Mlangeni and Morare and further ordered that they report at work on 3
December 2011.
Furthermore, the arbitrator ordered the appellant to
pay Mlangeni and Morare arrear wages equivalent to two months’
salary.
Labour
Court
[9]
The
appellant brought a review application in terms of section 145 of the
Labour Relations Act
[1]
(LRA) in
the court
a
quo
for the review and setting aside of the arbitrator’s award on
the grounds that:
9.1
the arbitrator committed a gross irregularity by failing to apply his
mind to the relevant issues
and facts; and
9.2
the award is not reasonable in that it is not supported by the facts.
[10]
In dismissing the review application, the
court
a quo
found that there was no evidence that the arbitrator misconceived his
duties by failing to appreciate what issues had to be determined.
With regard to the reasonableness of the arbitrator’s award,
the court
a qu
o
concluded that the arbitrator, faced with two mutually destructive
versions, found the employees’ versions more probable
as the
appellant did not provide any objective evidence in support of the
allegation of an assault on Thipe. The court
a
quo
also concluded that, besides
failing to provide photos depicting the assault on Thipe (even though
he had footage of other assaults
not committed by Mlangeni and
Morare), the appellant did not give an explanation as to why the
assaults by Mlangeni and Morare
were not reported to the police
officers who were present at the place where the alleged misconduct
took place.
Appeal
[11]
The
appellant is appealing the court
a
quo
’s
judgment and order mainly on the ground that the court
a
quo
erred in finding that the arbitrator properly assessed the
probabilities of the two mutually destructive versions of the
appellant
and the fourth and fifth respondents.
[2]
Further, it is the appellant’s contention that the court
a
quo
erred in finding that the arbitrator’s award was reasonable
taking into account the material before him.
[12]
In
terms of section 138(1) of the LRA, an arbitrator is entitled to
conduct the arbitration proceedings in a manner that he or she
considers appropriate to determine the dispute fairly and quickly, as
long as he or she deals with the substantial merits of the
dispute
with the minimum of legal formalities.[13]
In
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others,
[3]
this
Court held that:
‘
[18]
In a review conducted under s145(2)(a)(ii) of the LRA, the review
court is not required to take into
account every factor individually,
consider how the arbitrator treated and dealt with each of those
factors and then determine
whether a failure by the arbitrator to
deal with one or some of the factors amounts to process-related
irregularity sufficient
to set aside the award. This piecemeal
approach of dealing with the arbitrator’s award is improper as
the review court must
necessarily consider the totality of the
evidence and then decide whether the decision made by the arbitrator
is one that a reasonable
decision-maker could make.
[19]
To do it differently or to evaluate every factor individually and
independently is to defeat
the very requirement set out in section
138 of the LRA which requires the arbitrator to deal with the
substantial merits of the
dispute between the parties with the
minimum of legal formalities and do so expeditiously and fairly. This
is also confirmed in
the decision of
CUSA
v Tao Ying Metal Industries.’
[4]
[14]
From a reading of the arbitrator’s
award, it is clear that the arbitrator was alive to the fact that in
dealing with mutually
destructive versions, he had to determine the
probabilities of the parties’ versions. The
onus
of proving the guilt of the fourth and fifth respondents’
misconduct was on the employer. The appellant’s version was
that the fourth and fifth respondents had assaulted Thipe during the
course of the strike. However, although video footage of other
violent and intimidation scenes was taken, this particular incident
was not recorded. Further, although Thipe had visited the police
station on the relevant day and there were police officers at the
place where the strikers were picketing, Thipe did not lay a
charge
against the fourth and fifth respondents nor was the alleged assault
reported to the police who were present. Furthermore,
although the
charge sheet referred to injuries sustained by Thipe in the assault,
the appellant did not, during the arbitration
hearing adduce any
evidence relating to the injuries. Consequently, after weighing all
the evidence before him, the arbitrator
concluded that the fourth and
fifth respondents’ version was more probable than that of the
appellant. The fact that the
award was not as detailed as the
appellant would have liked does not imply that the arbitrator did not
apply his mind to the facts
before him and that he did not take into
account the credibility of the witnesses. I am of the view that the
arbitrator correctly
found that the probabilities favoured the
version of Mlangeni and Morare and that the appellant’s
complaint in this regard
has not basis.
[15]
Having
concluded that the appellant did not prove the assault on Thipe by
Mlangeni and/or Morare, the arbitrator reached a conclusion
that the
dismissal of Mlangeni and Morare was substantively unfair. In my view
and in the absence of a guilt finding of Mlangeni
and Morare, the
decision reached by the arbitrator with regard to the dismissal of
Mlangeni and Morare is one which falls within
the band of
reasonableness as set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others.
[5]
[16]
Accordingly the following order is made:
The
appeal is dismissed with costs.
Mngqibisa-ThusI
AJA
Landman
and Sutherland JJA concur in the judgment of Mngqibisa-ThusI AJA
APPEARANCES:
FOR THE APPELLANT:
Adv G Fourie
Instructed
by Brian Bleazard Attorneys
FOR THE FOURTH AND
FIFTH RESPONDENTS:
Mr S Mabaso
Instructed
by Mabaso Attorneys
[1]
66
of 1995.
[2]
In
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell & Cie SA
and Others
2003 (1) SA 11
(SCA) at 14J-15E, the court in setting out how a
court should deal with two mutually destructive versions held that
the court
has to weigh the evidence tendered by the parties and
apply the probability test and if necessary take into account the
credibility
of the witnesses.
[3]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at paras 18-19.
[4]
[2009]
1 BLLR 1 (CC); (2009) SA 24 (CC).
[5]
2008
(2) SA 24
(CC);
[2007] 12 BLLR 1097
(CC) where the Constitutional
Court held at para 110 that “
To
summarise,
Carephone
(Pty) Ltd v Marcus NO and Others
[1998]
11 BLLR 1117
(LAC) held that s 145 of the LRA was suffused by the
then constitutional standard that the outcome of an administrative
decision
should be justifiable in relation to the reasons given for
it. The better approach is that s 145 is now suffused by the
constitutional standard of reasonableness. That standard is
the one explained in
Bato
Star (Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
[2004] ZACC 15
;
2004
(4) SA 490
(CC
)
.
Is the decision reached by the commissioner one that a reasonable
decision-maker could not reach? Applying it will
give effect
not only to the constitutional right to a fair labour practices, but
also to the right to administrative action which
is lawful,
reasonable and procedurally fair”.