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[2016] ZALAC 58
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Interstate Bus Lines (Pty) Ltd v Phakwe and Others (JA27/15) [2016] ZALAC 58 (22 November 2016)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JA27/15
INTERSTATE BUS LINES
(PTY) LTD
Appellant
and
DANIEL
PHAKWE
First Respondent
THE SOUTH AFRICAN ROAD
PASSENGER
BARGAINING COUNCIL
Second Respondent
Dell, C
(N.O.)
Third Respondent
Heard:
24 May 2016
Delivered:
22 November 2016
Summary:
Review of arbitration award – by agreement between parties
arbitrator tasked to determine
only the fairness of the sanction
based on written submissions and a joint bundle of documents –
arbitrator taking in consideration
mitigating factors in arriving at
his decision – arbitrator alive to the employee’s
misconduct hence the order of reinstatement
was without back-pay –
arbitrator adopting a correct approach to the fairness of the
dismissal that balances the interests
of the parties –
arbitration award falling within the band of reasonable outcome.
Appeal dismissed.
Coram:
Tlaletsi AJP, Ndlovu et Sutherland JJA
JUDGMENT
Tlaletsi AJP
[1] This is an appeal
against the whole of the judgment of the Labour Court (Steenkamp J)
which dismissed the appellant’s
application to review and set
aside an arbitration award dated 14 December 2010 issued by the third
respondent (the arbitrator)
acting under the auspices of South
African Road Passenger Bargaining Council (the Bargaining council).
The award related to an
alleged unfair dismissal dispute referred to
the Bargaining council by the first respondent (the employee) against
his erstwhile
employer, the appellant.
[2] The arbitrator found
the sanction of dismissal against the employee, on 17 February 2010,
for the misconduct inappropriate and
directed the appellant to
reinstate the employee with a final written warning valid until 30
December 2011. The reinstatement directive
was conditional on the
employee forfeiting emoluments due to him from the date of dismissal
until the reinstatement date determined
as 3 January 2011. The
appellant applied and was refused leave to appeal by the Labour
Court. He is in this Court with leave granted
on petition to this
Court. The appeal is limited to the sanction imposed by the
arbitrator and confirmed by the court
a quo
.
[3] The factual
background leading to this dispute is either common cause or not
disputed. The employee was at all relevant times
employed as a bus
driver. His dismissal arose from an incident that took place on
Saturday 23 January 2010 at the appellant’s
Thaba Nchu bus
depot. Upon arrival at the depot to resume his duties, the employee
wanted to park his private motor vehicle at
a parking area located on
the premises. He apparently had to use his private transport because
the employer failed to fetch him
from home as it was the practice. He
was refused entry by the security officer employed by the company
contracted to the appellant
to man the entrance. The security officer
told him that he had received an instruction that parking inside the
premises was reserved
for management staff only, and not bus drivers.
The employee said he was not aware of such instruction and did not
believe the
security officer. According to him, in the past,
employees generally, including bus drivers, were allowed to park
their private
vehicles on the premises, especially on Saturdays when
most of management staff were not working and thus the parking space
was
available inside premises. A verbal altercation ensued
between the two, with the employee insisting that he was entitled to
park his motor vehicle on the premises, as there was no parking space
available outside the premises. He could not accept the security
officer’s explanation that he had received an instruction not
to allow employees to park their vehicles on the premises.
He
believed that he was being singularly targeted by the security
officer. Having failed to convince the security officer, the
employee, apparently out of anger, left his motor vehicle parked
across the depot entrance and left for his duties. Soon thereafter,
he left the depot driving a bus to attend to his tasks for the day.
[4] The appellant alleged
that as a result of the employee’s conduct, two buses that were
to enter the depot to be refuelled
could not gain entrance to the
premises. The one had to refuel at a private filling station at an
additional cost to the appellant,
and the other ran out of fuel on
the road. The appellant further alleged that some of the buses
commenced their shifts late as
a result of the employee’s
conduct.
[5] About a month later,
the employee was indicted on a misconduct charge of “sabotage
or any act by an employee to interfere with the normal operations
of the employer
”. A disciplinary hearing was scheduled for
17 February 2010. He was found guilty as charged and dismissed.
[6] Dissatisfied with his
dismissal, the employee referred an unfair dismissal dispute to the
second respondent which was arbitrated
after failed conciliation. The
parties agreed not to lead any evidence in the arbitration and agreed
to present written submissions
since the guilt of the employee for
the misconduct was conceded. What the arbitrator was required to
determine was the fairness
of the sanction of dismissal in the
circumstances of the matter.
[7] The arbitrator,
having considered the parties’ submissions, held that the
sanction of dismissal was unfair. He reasoned
that: there was no
intention on the part of the employee to sabotage the appellant’s
operations because his actions were
directed at the security officer;
the employee was refused access to the premises without prior notice
that he would no longer
be allowed to park on the premises; the
employee had an “impeccable and clean record” dating back
from 2002 when he
assumed his employment; there was clear provocation
for him to embark on his actions and that it was not a “planned
and/or
pre-empted” action but a once off incident which was
unlikely to be repeated.
[8] The arbitrator
proceeded thus:
‘…
However,
in balancing the interest of the employer party and taking into
consideration that the actions of the employee party cannot
be
condoned and this must therefore be clearly indicated to the employee
party. I am therefore of the opinion that dismissal was
not the
appropriate sanction in this matter and that an alternative sanction
should and could have been imposed.
However, to
indicate to the employee that his actions were wrong and that he
should take responsibility for such actions I intend
making the
award, which would be in the circumstances then fair to both the
employer party and the employee party’
.
[9] The appellant,
unhappy with the award, sought to have it set aside on review. The
Labour Court recorded that counsel for the
appellant contended that
the conclusion reached by the arbitrator was so unreasonable that no
other arbitrator could have reached.
The learned judge proceeded to
mention that counsel for the appellant had “
wisely abandoned
the argument in the Heads of Argument drafted by his attorney that
the arbitrator had exceeded his powers and further
that the
arbitrator could only interfere with the sanction imposed by an
employer where the sanction is unreasonable to the extent
that it
would fill a reasonable arbitrator with a sense of shock
”.
[10] The court
a quo
was satisfied that the arbitrator followed a process that was agreed
upon by both parties, properly considered all the submissions
made
before him in light of relevant case law, applied his sense of
fairness to the issue before him and dealt with the substantial
merits of the dispute. Significantly, the court
a quo
found
that the arbitrator imposed a heavy penalty on the employee in that
the employee would in addition to a final written warning
forgo a
substantial back pay of almost a year. The review application
was nevertheless dismissed on the basis that the award
fell within a
range of reasonable outcomes.
[11] The appellant has
raised a number of grounds upon which the judgment of the court
a
quo
is attacked. In summary, the appellant contends that the
court
a quo
erred in dismissing the review application and by
awarding costs in favour of the employee. The court
a quo
is,
inter
alia
, accused of erring in fact and law in the
application of the legal principles relating to the determination of
a fair sanction
and the application of the review test.
[12] At the hearing of
the appeal, we directed the parties to address us on the meaning and
implications of the remarks made by
the arbitrator under the heading
“Survey of Evidence and Argument” that “only
written arguments were submitted
and forwarded” to him by the
respective parties. It was not clear as to whether the agreement of
the parties was intended
to limit the arbitrator to only consider the
written submissions in deciding the dispute. If that was the case it
would suggest
that the matter was to be decided without any shred of
evidence being relied on as a basis to support the decision. None of
the
parties had dealt with this issue in their Heads of Argument.
[13]
Mr
Snyman
,
who appeared on behalf of the appellant, was quick to submit that on
the face of it, the arbitrator did not rely on any form of
evidence
to decide the dispute and that this fact alone is a valid ground for
this Court to set the judgment of the court
a
quo
aside and order that the dispute be referred back to the bargaining
council for arbitration
de
novo
by another arbitrator. He relied on the decisions of the Labour Court
in
Arends
and others v SA Local Government Bargaining Council and Others
[1]
and
ZA
One (Pty) Ltd t/a Naartjie Clothing v Goldman NO and Others
[2]
in support of his submission.
[14]
In response, Mr
Wilke
,
who appeared on behalf of the employee contended that it would be
impermissible to refer the matter back as contended on behalf
of the
appellant because this was never a ground of review raised by the
appellant. He relied on the decision of the Constitutional
Court in
Commercial
Workers Union of South Africa v Tao Ying Metal Industries and
Others
[3]
where it was held,
inter
alia
,
that a party who seeks to review an arbitral award is bound by the
grounds contained in the review application and that he/she
may not,
on appeal, raise a new ground of review. Counsel contended that this
matter should therefore be decided on the onus principle
alone
without relying on a new ground of review. He submitted that should
it be found that no evidence was properly adduced in
the arbitration
proceedings, it would automatically follow that the appellant had
failed to prove that the dismissal was fair and
the appeal should be
dismissed.
[15] The bargaining
council has filed as part of the record of the arbitration
proceedings, a document purporting to be a transcript
of the
proceedings. The document is headed “
Preparation For RPNT
560
”. It contains names of witnesses and a list of
questions that the arbitrator intended to ask the respective
witnesses. The
document further reveals that Chantel Vos introduced
herself as the appellant’s representative and indicated that
they wished
to submit a bundle of documents. In the opening address,
she outlined the factual background underlying the dispute and a
brief
summary of all the witnesses who testified for the parties at
the disciplinary inquiry. She indicated that three witnesses
testified
for the appellant namely, Samosha- the security officer who
manned the gate; Lehare- who testified about the busses that could
not be refuelled and Mafa who issued the instruction for the
employees’ motor vehicles not to be parked inside the depot
except if they were to be cleaned. Mana and Rammile testified for the
employee. The transcript further contains a heading “
Closing
Statement and Argument
”. However, it is only the
appellant’s representative’s closing statement that is
reflected, which is similar
(word for word) to the written closing
statement that was submitted on behalf of the appellant.
[16] It is significant to
note that the parties’ closing statements refer to the evidence
that was tendered at the disciplinary
inquiry as well as the
photographs of the scene. The record of the proceedings of the
disciplinary inquiry is part of the appeal
record. It is not a direct
transcript of the proceedings but notes made by the chairperson
relating to the evidence and questions
put to the witnesses who
testified. The note further records the address by the parties’
representatives, the chairpersons’
reasons and verdict, address
on sanction and the pronouncement of the sanction by the chairperson.
[17] In my view, it is
evident that implicit in the parties’ agreement that no
evidence be tendered during the arbitration
proceedings and that only
closing arguments be submitted was that the record of the
disciplinary inquiry would be part and parcel
of the arbitration and
that it would supply the factual basis upon which the fairness of the
sanction is to be assessed. It is
for this reason that the arbitrator
made reference to some factual background, which could only be
extrapolated from the record
of the disciplinary inquiry that must
have been presented to him as part of the bundle. Although the record
of the disciplinary
inquiry is not a model of a perfect record of the
proceedings, it does however provide key elements of the evidence
tendered as
well as the submissions by the parties. Further, most of
the evidence is common cause and this appeal is limited to sanction
only.
What would therefore be more relevant in addition to the common
cause factual background would be the evidence on aggravating and/
or
mitigating circumstances as well as the reasons of the chairperson of
the inquiry on the sanction he imposed. All these factors
are found
on the record as it stands.
[18] Sending the matter
back for arbitration
de novo
would not only go against the
choice of the parties but would also be prejudicial to them. The same
witnesses who testified will
have to be recalled to repeat what they
have already testified about. There is no guarantee that they will
all be available to
testify given the time elapsed since the dispute
arose. Furthermore, sending the matter back to the Bargaining council
for arbitration
de novo
would defeat the purpose of
expeditious adjudication of labour disputes. In my view, it would be
in the interests of justice and
fairness that the matter be finalised
on the record as it stands.
[19] The circumstances of
this case are by far distinguishable from the circumstances in the
cases referred to us by Mr
Snyman
.
In Arends and Others v
Local Government Bargaining Council and Others
, the parties had
agreed not to lead any evidence and simply presented documents and
made oral and written arguments. There was
no pre-arbitration minute
nor did the parties provide the arbitrator with any agreed set of
facts. This Court correctly found that
the absence of any evidence;
the absence of a stated case; and the manner of its presentation
makes it impossible for the court
on appeal to determine whether the
dispute is indeed one about the implementation of a collective
agreement and how it should be
resolved. There was absolutely no
evidential material for the arbitrator and ultimately the Labour
Court to work on in resolving
the dispute. The
ZA One (Pty) Ltd
t/a Naartjie Clothing v Goldman NO and Others
case had to do with
the conduct of the arbitrator in the conduct of the arbitration
proceedings and not necessarily a case presented
without evidence
being tendered.
[20]
The proper test to be applied in a review of an arbitration award on
sanction is whether the decision of the arbitrator about
the fairness
of the sanction imposed by the employer is a decision that a
reasonable arbitrator could not reach.
[4]
It is the call of the arbitrator and not that of the Labour Court to
assess the fairness of the sanction of the employer. An arbitrator
is
tasked to objectively, impartially and fairly determine whether a
sanction of dismissal in the circumstances of the material
placed
before her/him is fair. In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
,
the Constitutional Court held that:
‘
In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or she
will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee’s
challenge to the
dismissal. There are other factors that will require consideration.
For example, the harm caused by the employee’s
conduct, whether
additional training and instruction may result in the employee not
repeating the misconduct, the effect of dismissal
on the employee and
his or her long-service record. This is not an exhaustive list.
To sum up. In terms
of the LRA, a commissioner has to determine whether a dismissal is
fair or not. A commissioner is not given
the power to consider afresh
what he or she would do, but simply to decide whether what the
employer did was fair. In arriving
at a decision a commissioner is
not required to defer to the decision of the employer. What is
required is that he or she must
consider all relevant
circumstances’.’
[5]
[20] In terms of the
Code
of Good Practice: Dismissal
, an employer must in addition to the
gravity of the misconduct consider factors such as the employee’s
circumstances including
the length of service, previous disciplinary
record and personal circumstances, the nature of the job and the
circumstances of
the infringement itself. In terms of article 5,
employers should keep records for each employee specifying the nature
of any disciplinary
transgressions, the actions taken by the employer
and the reasons for the actions.
[21] In this case, the
arbitrator followed a process that was agreed to by the parties. It
is, therefore, unfair to accuse him of
failing to have had regard to
the nature of the misconduct, the complete breakdown in the trust
relationship, the lack of remorse
by the employee and prejudice to
the appellant. The arbitrator was alive to the nature and seriousness
of the misconduct hence
his remark that the actions of the employee
cannot be condoned and punished him by not awarding him emoluments
that would have
been due to him from the date of dismissal to the
date of reinstatement. What the arbitrator effectively did was to
direct that
the employee be re-employed to his previous position with
a final written warning. His other entitlements and rights barring
back
pay would remain intact as if he had not been dismissed.
[22]
The arbitrator’s approach of the need to balance the interests
of the parties in assessing the fairness of the sanction
imposed by
the employer was in my view the correct approach under the
circumstances. The balancing of the interests of the parties
to the
dispute is what the arbitrator is enjoined to do in terms of the Code
of Good Practice on dismissals for misconduct and
the
dicta
of this Court and the Constitutional Court referred to above. The
Constitutional Court in
NEHAWU
v The University of Cape Town and
others
[6]
instructively held as follows:
‘
Security of
employment is a core value of the LRA and is dealt with in Chapter
VIII. The chapter is headed “Unfair Dismissals”.
The
opening section, section 185, provides that “[e]very employee
has the right not to be unfairly dismissed.” This
right is
essential to the constitutional right to fair labour practices. As
pointed out above, it seeks to ensure the continuation
of the
relationship between the worker and the employer on terms that are
fair to both. Section 185 is “a foundation upon
which the
ensuing sections are erected.’
[7]
(References omitted).
The arbitrator was
further alive to the fact that the
Labour Relations Act 66 of 1995
advocates’ progressive discipline and that dismissal should be
implemented as a last resort.
[23] The appellant did
not lead any evidence to suggest that the trust relationship between
the appellant and the employee had been
destroyed as a result of the
employee’s conduct. It is, of course, acceptable that the
breakdown of trust may be inferred
from the nature and seriousness of
the misconduct, the conduct of the employee after the misconduct and
from any other factors
justifying such an inference. However, there
exists, in this case, no such circumstances justifying such a
conclusion. The submissions
in the Closing Argument is not evidence
from which it can be justifiably inferred that the trust relationship
had been broken.
On the contrary, the arbitrator found,
inter
alia
, that the actions of the employee were not directly intended
against the appellant but against the security officer without
realising
the consequences of his actions; that the employee had a
clean record and did not pose any threat or further danger to the
appellant.
Added to these factors, is that it took the appellant
almost a month to charge the employee for the misconduct. In that
period,
the employee continued to perform his normal duties. There is
no evidence placed on record to suggest that he reoffended or that
the trust relationship proved intolerable.
[24] The award of the
arbitrator contains reasons for his conclusion that the sanction
imposed by the employer is under the circumstances
unfair. I am not
persuaded that his conclusion on the process agreed to by the parties
and material placed before him does not
fall within a band of
reasonable decisions. Similarly, the court
a quo
committed no
misdirection in concluding that there was no need to interfere with
the award of the arbitrator. The appeal, therefore,
falls to be
dismissed. In my view, it would be in accordance with the
requirements of the law and fairness that each party pays
its own
costs on appeal.
[25] In the result, the
following orders are made:
a)
The appeal is dismissed.
b)
There is no order as to costs.
____________________
Tlaletsi AJP
Ndlovu
et
Sutherland JJA concur in the judgment of Tlaletsi AJP.
APPEARANCES:
FOR THE
APPELLANT:
MR S Snyman of Snyman Attorneys
Johannesburg
FOR THE FIRST RESPONDENT:
Mr FJ
Wilke
(Original heads of
argument prepared by Mr FR Memani)
Instructed by Lennon
Moleele and Partners Johannesburg.
[1]
(2015) 36 ILJ 1200
(LAC).
[2]
(2013) 34 ILJ 2347
(LC).
[3]
(2008) 29 ILJ 2461
(CC).
[4]
Sidumo and
Another v Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097
(CC) at para 110.
[5]
Ibid at paras
78-79.
Fidelity
Cash Management Service v CCMA and Others
[2008] 3 BLLR 197
(LAC) at paras 94-95.
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
[2014] 1 BLLR 20 (LAC).
[6]
(2003) 24 ILJ 95
(CC).
[7]
At para 42.