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[2017] ZALAC 17
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IDWU obo Linda and Others v Super Group and Others (JA19/2015) [2017] ZALAC 17; (2017) 38 ILJ 1292 (LAC); [2017] 10 BLLR 969 (LAC) (28 February 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA19/2015
In
the matter between:
IDWU
OBO CYRIL LINDA AND 4 OTHERS
Appellants
and
SUPER
GROUP
First Respondent
W
M RAFELETA
N.O.
Second Respondent
NATIONAL
BARGAINING COUNCIL
FOR THE FREIGHT
INDUSTRY
Third Respondent
Heard:
22 March 2016
Delivered:
28 February 2017
Coram:
Tlaletsi DJP, Davis and Sutherland JJA
JUDGMENT
SUTHERLAND
JA
Introduction
[1]
The
appeal is brought on behalf of employees who had initially been found
by an arbitrator to have been unfairly dismissed by the
first
respondent (the employer),
[1]
but which award to that effect had been set aside on review.
[2]
Two
questions arise for decision. First, the state of a reconstructed
record provokes a need to consider whether it is appropriate
to hear
the appeal at all. Second, on the premise that it is appropriate to
do so, whether the award holding the dismissals unfair,
fails to pass
muster as one to which no reasonable arbitrator could have come.
[3]
The
judgment of the Labour Court is defended by neither party, and was
plainly incorrect as regards the test adopted for review.
It may
safely be ignored.
[4]
The
award of the arbitrator also leaves much to be desired. He had to
conduct two enquiries. First, he had to decide a dispute of
fact
about the reason for the dismissal. He favoured the employee’s
version, but neglected to offer an explanation why he
did so. Second,
he had to decide if any misconduct of which the employees were truly
guilty, warranted dismissal. This enquiry
he did not embark on
because he exonerated the employees of any misconduct.
[5]
Save
for raking out clues as to what evidence was adduced, the award may
also safely be ignored.
The Record
[6]
Not
for the first time, a transcribed record of an arbitration has not
been made available to litigants. The parties in this matter
have
made reasonable efforts to recompose one. What is before this Court
has been agreed to be the best that can be done. It is
a narrative
summary, in the third person, of what was supposedly said by three
witnesses. There is no rendition of questions and
answers. The origin
of the information is not expressly identified. Supposedly, it was
drawn from notes of the employees’
representatives at the
arbitration. An affidavit records that the respondent’s
attorneys gave ‘input’. Is it
good enough to enable a
court to decide a material dispute of fact?
[7]
The
problem of the adequacy of a record of an arbitration taken on review
has recently enjoyed the attention of the Constitutional
Court. In
Toyota
Motors (Pty) Ltd v CCMA
[2016]
3 BLLR 217 (CC)
[2]
and
in
Baloyi v MEC, Health & Social Development, Limpopo
(2016)
37 ILJ 549 (CC
),
[3]
the
dilemma which faces a review court when presented with an inadequate
record was addressed. What emerges from the various dicta
of that
Court is that where the interests of justice demand it, a pragmatic
approach is appropriate, despite the inadequacies of
the record.
[8]
In
my view, once a proper effort to reconstruct a record has been made,
the review court should tackle the task, provided the record
is
adequate to enable the relevant controversy to be decided. At the two
extremes there could, on the one hand, be an issue that
either does
not or hardly turns on the facts, and on the other hand, the issue
may be one in respect of which, close examination
of the content of
the
ipisima
verba
of witnesses is critical. The former may safely be heard, despite a
rudimentary record, the latter, perhaps, not at all. Many cases
will
fall in between these poles. A measure of judgment is called for to
assess the feasibility of a proper adjudication in a given
case.
[9]
In
certain cases, the record may be rather poor for the relevant
purpose, although not completely useless. The preferable option
may
be to set aside the whole proceedings and allow the dispute to be
adjudicated afresh. However, that option, although from a
purely
forensic standpoint may be attractive, the implications of a remittal
may work undue hardship on one or both parties. Typically,
that
unhappy predicament results from the long elapse of time since the
dispute arose. When a remittal would, after a long elapse
of time,
trigger prejudice, the appropriate choice may be to hear the matter,
warts and all. Generally, in such a case, it is appropriate
for a
court to weigh heavily the wishes of the parties, who after all,
carry the risks of the imperfections of the record; if both
prefer to
press on to a final resolution of the dispute on an inadequate
record, such a choice may tip the judicial judgment call
on whether
to carry on or to remit.
[10]
In
the present case, the precipitating event occurred on 8 February
2008, fully eight years and one month prior to the appeal being
heard. The award was given on 11 August 2008. The review was heard on
13 December 2011, and lamentably, judgment delivered on 1
October
2014. The employees, we have been told from the bar, do not seek
reinstatement. The parties do wish to press on. The long
delay ought
not to be exacerbated by a remittal.
[11]
In
our view, the sensible option is to hear the matter and put the
dispute to bed.
The (un)reasonableness
of the award
[12]
It
is common cause that the first respondent is a labour broker; that it
assigned the employees to Goodyear at a site in Germiston,
on 8
February 2008, and that they left the site before the end of the
work-day. The employer relies on the desertion of the employees
from
their jobs on that day to justify the dismissal The employees’
defence is that they did not desert; rather, one Lucas
Nkosi, a
supervisor, told them to leave as they were not up to the job, and
they acquiesced in that instruction. The versions are,
thus,
diametrically opposite.
[13]
The
arbitrator preferred the employees’ version. On review, shorn
of the wordiness of the abundant case-law,
[4]
the straightforward question to be asked is whether the body of
evidence that was put before the arbitrator could not have justified
a reasonable arbitrator in preferring the employees’ version.
[14]
The
employer called Hermien Willemse and Lucas Nkosi to support its case.
[15]
Willemse,
the operations manager, is based at the head office. She testified
that each of the employees had been in the employ of
the employer for
some time prior to 8 February. Their assignments had ended and they
were available for re-deployment. They were
offered assignments at
Goodyear. They accepted. Their wage rates remained static. They were
delivered to Goodyear at 8h00 on 8
February.
[16]
The
next she knew of the employees, was when she got an e-mail from Tom
Reid of Goodyear telling her they had deserted. That e-mail
was sent
at 14h15. She got a second e-mail from Nkosi at 15h02 to the same
effect. What decisions that were taken by the employer
was prompted
by the content of the e-mails, regardless of whether the contents
were true. The material contents of the e-mails
conveyed that the
employees left without announcing their intention to do so, or saying
why. Both Reid and Nkosi claimed that upon
their enquiring of other
staff, what was relayed to them was that “money” was
discussed and that the employees allegedly
said to other staff that
they were not prepared to work for R400 per week, as they were used
to getting R1500 per fortnight.
[17]
It
is common cause that the employees arrived at the head office later
that day, at an unspecified time, whereupon they got suspension
notices which stated:
‘…
.you
have breached the disciplinary code by:
a.
Dereliction
of duties on 8
th
February 2007 (sic) by abandoning your place of work from
approximately 10h00.
b.
Absent
without permission on 8
th
February 2007(Sic) from approximately 10h00….’
[18]
According
to Willemse, she attended a disciplinary enquiry held on 13 February.
A minute [175-179] of the enquiry was presented
to the arbitrator and
confirmed by Willemse as accurate.
[19]
What
happened at the disciplinary enquiry, as reflected in the minute, was
that the employees pleaded guilty to the charges, as
set out in the
suspension notices. Ostensibly, it was upon this basis that no other
evidence was adduced. Nkosi was available and
ready to testify but it
was apparently deemed unnecessary for him to do so. The most
significant portion of the minute is the remarks
made by the
arbitrator when giving the outcome. In paragraph 5.3, it is recorded:
‘
The accused
stated that they were not aware of the extensive travel costs
implicated in accepting their new positions in Germiston
and as a
result decided to desert their new workplace, placing the company’s
name into serious disrepute with the client’.
[20]
The
e-mails and the minute were challenged as fabrications by the
representative of the employees, and it was claimed no disciplinary
enquiry took place. Further, the employer’s case of desertion
or that they discussed pay with other workers was denied. Save
for
those notations, no further detail of the exchange is recorded. The
employee’s case concerning the events that occurred
at Goodyear
were not put to Willemse; correctly so, as she could, of course,
offer no comment.
[21]
Willemse
gave other evidence, addressed elsewhere about matters that do not
touch directly to the events of 8 February
per
se.
[22]
As
to the events at Goodyear, Nkosi, who had loitered at the
disciplinary enquiry in case of need, was now called at the
arbitration.
His account of the relevant events was that he met the
employees and put them to work, off-loading and stacking tyres. He
cautioned
them “to be careful with the tyres as he did not want
any accidents at the site” [298]. It is common cause that they
had arrived at about 8h00. At about 10h00, just after the tea break,
the employees had gone. As to why, he repeated what he had
stated in
his e-mail. The critical aspect of his evidence relates, of course,
to whether he had any exchange with the employees
when they left,
which according to him, there was none. In cross-examination, it was
put that Nkosi had failed to train the employees
and he had then
dismissed them for poor performance. His answer was that the job
entailed offloading tyres and packing them straight,
hence no
training was necessary. The employees, he said, deserted before
performance could be assessed. That was the sum of the
cross-examination, as recorded.
[23]
What
is the evidence to support the employee version? Only Cyril Linda
testified. He described being taken with co-workers to the
Goodyear
site in Germiston to begin a new assignment. Nkosi was introduced to
them. He instructed them to offload tyres and pack
them. Nkosi told
them to take care and avoid any accidents. The job entailed packing
tyres according to size and codes. Later Nkosi
called each man and
said they did not perform to standard and were thus dismissed. Why
Nkosi thought so was not made known to them.
They mutely acquiesced.
Thereafter, they phoned “Handsome” at the head office of
the Employer. When this happened and
who “Handsome” is
and what role he occupies at the employer were not recorded. (The
name Handsome Qobose appears on
the attendance list as an interpreter
in a minute of their disciplinary hearing on 13 February [Record
175]). Handsome told them
to return to the head office. No
corroboration of this communication was ever offered. It is common
cause that they returned, but
when is not recorded. At the head
office, it is common cause that they were suspended. They were
thereafter called to a disciplinary
hearing but were dismissed
without any hearing. Linda specifically denied complaining about
transport costs, and claimed Willemse
lied. The note of the
cross-examination reflects that he was challenged with reference to
the events at the disciplinary hearing,
and his contention that Nkosi
had dismissed him. In argument, it was suggested that Linda was not
challenged with the employer
version; on this record, that inference
cannot be made, rather a fair reading indicates that it must have
been put to him.
[24]
Such
was the material before the arbitrator upon which to make findings on
credibility and on the probabilities. Could a reasonable
arbitrator
conceivably prefer the employees’ version? The
onus
rests on the employer, so if there is doubt as to which version to
prefer, the employees’ version must be preferred.
[25]
In
my view, the employees’ version is so vitiated by improbability
that it is unreasonable to prefer it. Much was made of
the absence of
direct evidence of the employees supposed expressions of dismay about
their pay and travel costs. This is misdirected.
The proper
perspective is to take the remarks made by themselves at the
disciplinary enquiry as important. Their plea of guilty
to desertion
had to be explained; it was not. The travel costs grievance, which
was not a part of what Reid or Nkosi conveyed (for
what little that
was worth) was ventilated there for the first time in the
disciplinary enquiry. The employer charged the employees
with
misconduct based on hearsay allegations of desertion. There was
nothing improper with that. They pleaded guilty and offered
reasons
to mitigate their misconduct. They did not, at the disciplinary
hearing, say a word about Nkosi firing them for poor performance.
This body of fact, married to the e-mails, whose significance is not
the truth of their contents, but the timing of the allegations,
forms
a formidable case.
[26]
Unless
a finding could be made that the e-mails and Hearing were indeed
fabrications, that evidence was an insuperable obstacle
to believing
the employees.
[27]
Similarly,
a reason had to exist to reject Nkosi’s evidence. But again,
the probabilities favour his version, even absent
the reports he
received, supposedly, from other staff. The employees came and went
within two hours. How much work could five men
do in that time that
warranted the supervisor’s outright rejection of them?
Moreover, the very substance of their case is
preposterous: what
training is required to offload and stack tyres alongside other
workers doing the same task? Why would Goodyear
want to cover up that
the workers sent to them were inadequate if that was indeed the case?
No motive exists.
[28]
The
assessment is vexed by the arbitrator giving no clue as to why he
believed the employees. This requires a review court and this
Court
to speculate in order to plumb the possibilities that a reasonable
fact–finder could be persuaded that the employees
were chased
off by Nkosi, as alleged. To do so, one would have to find that
there was a conspiracy hatched by no later than
14h15 that same day,
and that the eight persons at a non-existent disciplinary enquiry
conspired soon after to concoct the employer’s
version.
[29]
In
my view, the body of evidence cannot sustain the result rendered by
the arbitrator. The appropriate set of facts to be found
proven was
that advanced in support of the employer’s case. This is
not simply because this court takes that view and,
ergo, the
arbitrator was unreasonable. Rather, the finding in the award is
perverse in relation to the evidence. Accordingly, the
employees were
guilty of desertion.
The Sanction
[30]
Self-evidently,
an enquiry into an appropriate sanction on the proper facts was not
undertaken. That task must be performed now.
[31]
The
contestation over sanction involves, on the one hand the plight of
the employees who had miscalculated the impact of additional
travel
costs and who rashly abandoned their posts, against, on the other
hand, the impact of that abandonment on the business credibility
of
the employer.
[32]
A
reading of the disciplinary enquiry minute does not reveal that a
sensible appreciation existed of the employees’ predicament.
It was indeed appropriate to weigh the business embarrassment factor
as the chairman did, but in the absence of addressing the
circumstances holistically, the question of the
degree
of culpability was fudged.
[33]
Anterior
to the events which hitherto have been the focus of the judgment are
the circumstances of the business of the employer
at the time of the
deployment of the employees to Goodyear. Willemse testified to those
circumstances. Two elements of her evidence
are pertinent.
[34]
First,
she explained that the labour broking market was competitive, hence
maintaining credibility with customers was imperative
to retain
custom. The desertion dented the employer’s goodwill with
Goodyear. No further placements have been called for
since this
incident. No challenge was put up to these contentions. In my view,
it is fair to accept that the probabilities indeed
support such a
perspective.
[35]
Second,
she explained the contractual relationships with the employees. By
its very nature as employees of a labour broker, the
employees
formally agreed to be moved from site to site as operational demands
required and opportunities changed. Transport to
and from workplaces
were the responsibility of the employees. The group of five employees
concerned had been employed in April
2007, save for one who was
employed from May. Thus, they had all been employees for about 10
months. Their written contracts of
employment were adduced, the terms
of which, supported this evidence. Accordingly, they were all
familiar with the usual operational
arrangements. Moreover, they were
invited to take up posts at Goodyear when their previous assignment
terminated; the assignments
were not forced on them. This position,
however, must be qualified by the fact that had they not agreed to
take up the Goodyear
posts, there was no other work available, and
their retrenchment would have, unavoidably, followed.
[36]
In
my view, admittedly derived from a paucity of facts on this record,
it is not apparent why the personal circumstances of the
employees
did not enjoy greater consideration. The perfunctory handling of the
issue of guilt owing to a plea of guilty may be
overlooked in the
hands of laymen, but the matter of sanction warranted conscious
consideration. It seems to me that the sole premise
for deciding the
sanction was the embarrassment the employer suffered. That was not
good enough. On the meagre wages being earned,
it must be obvious
that the net earnings after transport costs is a major factor in the
ability of these employees to support themselves,
and no less,
support or contribute to the support of their families. The fact that
they would walk out in mid-shift seems to me
to lend weight to the
sincerity of their grievance, which regardless of contractual
obligations ought to have been investigated.
The common labourer is
not to be treated as a mere unit of labour. He is also a human being.
No more than a modicum of empathy
ought to have propelled the
chairman of the disciplinary enquiry to probe the implications of
their predicament and weigh that
factor in determining the degree of
blameworthiness to attach to their actions.
[37]
Accordingly,
despite the employees having been guilty of desertion, and despite
the serious consequences for the business credibility
of the
employer, the sanction of dismissal was inappropriate. Allowing due
weight to the effect of their misconduct on the business
credibility
of the employer, a final written warning would be proportionate to
their delinquency. If there had been no other opportunity
to be
placed, as appears to be the case, the employees would have faced
retrenchment.
[38]
Compensation
is sought by the employees. This Court shall determine an appropriate
sum.
[39]
Paradoxically,
if they had been retrenched in February 2008, they would probably
have been given retrenchment packages based on,
a most, a year’s
service, perhaps at two weeks’ pay. At R400 per week that would
have yielded R800. In inflated money
terms, by my rough calculation,
R400 in February 2008 is about R600 now, in March 2016. Their
hypothetical retrenchment packages
would have been about R800 each.
[40]
In
giving weight to that consideration, and allowing an appropriate
measure to denote the unfairness of the dismissal, I would award
as
compensation to each employee-appellant the sum of R2400, a sum
equivalent to one months’ wages, at an estimation of current
2015 values.
Order
[41]
I
make this order:
41.1.
The
appeal is upheld, in part, and dismissed in part.
41.2.
The
Judgment of the court
a
quo
is set aside.
41.3.
The
award of the arbitrator is reviewed and set aside.
41.4.
The
employees are declared to have been guilty of desertion.
41.5.
The
sanction of dismissal is declared to have been inappropriate and
unfair.
41.6.
Compensation
is awarded to each employee-appellant in the sum of R 2400.
41.7.
There
is no order as to costs.
The court expresses its
appreciation to Advocates Myburgh SC and Itzkin, and their attorney,
Mervyn Taback, who acted pro amico
in the matter
_____________
Sutherland JA
(with
whom Tlaletsi DJP and Davis JA concur)
APPEARANCES:
FOR
THE APPELLANTS:
Adv A Myburgh SC, with him Adv R Itzkin,
Instructed by Meryyn
Taback Inc,
Ref: St Elmo Wilkin
FOR
THE FIRST RESPONDENT:
Adv W Hutchinson,
Instructed by Fluxmans
Inc,
Ref D
Mer
[1]
The parties have
put up no quarrel with ‘Super Group’ being cited as the
employer. The evidence indicates that the
employer was ‘Sizeka’
a labour broker. The relationship is not explained on these papers.
However, as this was not
a controversy, no attempt is made in this
judgment to unravel the exact facts.
[2]
In
Toyota
at [43] the Constitutional Court held:
‘
Toyota,
as the party seeking review, had an obligation, when it became
apparent that there were difficulties with the record,
to have
initiated steps towards reconstruction. In
Lifecare
[Special Health Services t/a Ekurhuleni Care Centre
[2003]
4 BLLR (LAC]) the Labour Appeal Court had occasion to determine how
the reconstruction of the record should be undertaken
by a party
whose obligation it is to do so. The Court said the following:
“
A
reconstruction of a record (or part thereof) is usually undertaken
in the following way. The tribunal (in this case the
commissioner) and the representatives . . . come together, bringing
their extant notes and such other documentation as may be
relevant.
They then endeavour, to the best of their ability and recollection
to reconstruct as full and accurate a record
of the proceedings as
the circumstances allow. This is then placed before the
relevant court with such reservations as
the participants may wish
to note. Whether the product of their endeavour is adequate
for the purpose of the appeal or
review is for the court hearing
same to decide, after listening to argument in the event of a
dispute as to the accuracy or completeness…..When
it appeared
that there were difficulties with regard to the record, it was the
obligation of Lifecare, as the reviewing party,
to initiate the
enquiries and steps which have been set forth in this judgment.
It should not have been left to the Labour
Court at first instance,
and to this Court on appeal, to resolve problems which were other
than residual or intractable.”
[at 17019].
3.
In
Baloyi,
the Constitutional Court was divided three ways
about the approach to an incomplete record. At the review stage, the
Labour Court
had ordered a reconstruction. This was done but was
attended by inordinate delay. The Labour Court was criticised for
lack of
circumspection in assessing the adequacy of the record for
the purposes of the review application. It was held that the Labour
Court ought to have remitted the matter, given the inadequacies of
the proffered record. Nevertheless, The Constitutional Court
faced
with the choice of remittal or hearing it, opted for the latter
course of action. The rationale was that a remittal would
be
‘cumbersome and unduly hard on the applicant’ [see at
[36] and [41]]. As a result, the Constitutional Court intervened
on
the merits. See esp [26]-[36] per Moseneke DCJ.
[4]
The authorities
have been traversed in the law reports
ad
nauseam,
and bear no repetition:
Sidumo
& Another v Rustenburg Platinum Mines Ltd
[2007] 12 BLLR 1097
(CC);
Heroldt
v Nedbank Ltd
(2013) 34 ILJ 2795 (SCA) at [25];
Gold
Fields Mining (SA) (Pty) Ltd (Kloof Gold mine)
v
CCMA
and
Others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC);
Head
of Dept of Education v Mofokeng
[2015] 1 BLLR 50
(LAC) at [33]. Most recently, the decision in
Anglo-Platinum
(Bafokeng Rasemone Mine) v De Beer
[2015] 4 BLLR 394
(LAC) at [11] adds to the pronouncements of the
review test.