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[2017] ZALAC 80
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Ekurhuleni Metropolitan Municipality v South African Municipal Workers Union and Others (JA56/2015, JR1676/2012) [2017] ZALAC 80; [2018] 3 BLLR 246 (LAC); (2018) 39 ILJ 546 (LAC) (18 December 2017)
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Labour Appeal Court Case
no: JA56/2015
Labour
Court Case no: JR1676/2012
In the matter between:
EKURHULENI
METROPOLITAN
MUNICIPALITY
Appellant
and
SOUTH AFRICAN
MUNICIPAL WORKERS UNION
First Respondent
SKHOSANA, B W
S
Second Respondent
SOUTH AFRICAN
LOCAL GOVERNMENT
BARGAINING COUNCIL
Third Respondent
MATLALA, M L, N. O.
Fourth Respondent
Heard:
30 November 2017
Delivered:
18 December 2017
Summary:
An arbitrator held that the dismissal of an employee for
participation in a violent disruption of a disciplinary enquiry
was
substantively fair, but because that dismissal was not preceded by an
enquiry into the act of disruption
per
se
,
it was procedurally unfair. Because of the egregious conduct which
justified the dismissal, in the exercise of a discretion, the
arbitrator made no compensation order as contemplated by section
94(1) of the LRA
The employee brought a
review and the labour court concluded, on the basis that a collective
agreement that was binding on the parties
which prescribed an enquiry
before a dismissal could be effected, had not been observed, the
arbitrator had misdirected himself
and set the award aside and
remitted the matter for a fresh arbitration
On appeal the Labour
court’s order was set aside and the award confirmed
Held: the collective
agreement argument was a red herring – the dispute referred was
an unfair dismissal case as contemplated
by section 186, not a
dispute about a breach of a collective agreement, a species of
dispute regulated by section 24
Held: on the facts the
dismissal was plainly fair
Held: on the facts,
the finding that the dismissal was procedurally unfair solely because
there had been no prior hearing in the
circumstances where the
employee disrupted a disciplinary enquiry, had not been subjected to
a cross review or cross appeal, and
thus, it was not open to the
appeal court to express a view on the propriety of that finding which
had to stand
Held: the
exercise of the arbitrator’s discretion not to award any
compensation was, on the facts, a wholly proper decision,
fully
consistent with the test in
Sidumo
that it could not be said
that the decision was one to which a reasonable arbitrator could not
come.
Coram: Musi, Coppin et
Sutherland JJJA
JUDGMENT
SUTHERLAND JA
Introduction
[1]
This
appeal is against an order of the Labour Court reviewing and setting
aside an award given under the auspices of the Third Respondent.
The
award was that the dismissal of the second respondent (Skhosana) had
been procedurally unfair for want of an enquiry before
dismissal, but
substantively fair, and, because the misconduct was so egregious, no
compensation ought to be awarded for the unfair
procedure. The Court
a
quo
held that the arbitrator had misdirected himself by failing to give
consideration to provisions in a collective agreement that
made the
holding of an enquiry a condition precedent to a dismissal. The
relief granted was to set aside the award and remit it
for a fresh
hearing.
[2]
The
appellant failed to comply with the requirements of the rules of
court in prosecuting the appeal. The filing of the record was
35 days
late. As a result, it has been necessary to apply for the appeal to
be reinstated. The failure has been satisfactorily
explained as
resulting from administrative difficulties in preparing the record.
The appellant was also remiss in filing its heads
of argument
timeously; the heads were filed nine days late. The latter failure is
slight and caused no party any prejudice, least
of all in expediting
a hearing of the appeal. The prospects of success of the appeal are a
material consideration. Because the
view we have taken of the
prospects of success are positive, as addressed hereafter, and
because the non-compliance with the rules
and directives of the court
are inconsequential, condonation of the late filings ought to be
granted and the appeal ought to be
reinstated.
[3]
The
critical issue on appeal is whether the award was indeed susceptible
to a review on the basis so found by the court
a
quo,
and, more especially, whether the award satisfied the test in
Sidumo;
ie
that
the conclusions in the award were such that no reasonable arbitrator
could reach such conclusions.
[1]
The critical facts and
issues leading up to the award
[4]
Skhosana
and six co-workers had been subjected to a disciplinary enquiry. The
enquiry was protracted and hopped along for several
months, having
been instituted in June 2010. On 11 February 2011, the eighth
occasion the enquiry had been convened before an independent
chairman, Nolan, the enquiry broke up amidst violence, the chairman
being assaulted, the recording device disrupted, and the chairman’s
cell phone, with which he tried to record the fracas, being forcibly
taken from him and thrown against a wall.
[5]
As
a result, the enquiry was abandoned. The employer then summarily
dismissed all seven employees. Those who had physically engaged
with
the chair were reported to the police and a criminal charge laid.
Skhosana was among those who were present during the melee.
A letter
of dismissal to Skhosana, dated 11 February 2011, recounted the
history of the enquiry, alluded to the persistent disruptions,
and
concluded by stating, insofar as material to this matter thus:
‘ …
.
The conduct you displayed by inciting
and instigating the assault and/or partaking in the assault on the
person of Mr Darien Nolan,
the presiding officer, on the 11
th
February 2011.
To this end your conduct constituted
gross misconduct and [has] rendered the conduct of a legitimate
disciplinary process impossible.
Given the responsibility and position
you hold in our employ and as a leader/shopsteward of the recognised
trade union, you wittingly
failed to ensure that you are provided
with a fair opportunity to present your case to prove your innocence
in the allegations
levelled against you by the employer.
In the circumstances and the context
of your conduct you have effectively by way of your conduct waived
your right to present your
side of the story in front of an impartial
presiding officer.
Your contract of employment ….is
terminated with immediate effect.’
[6]
Self-evidently,
no disciplinary enquiry was held into the events of 11 February. The
option of suspending Skhosana and then running
a fresh enquiry was
not taken up.
[7]
Skhosana
referred an unfair dismissal dispute to arbitration. In that
arbitration, evidence was adduced from three eye witnesses
that she
did not physically engage with the chairman during the attack on him,
but that she and one other person stood into the
doorway, inhibiting
egress, and shouted “mshaye” ie “
hit
him, hit him
”
as the chairman was being assaulted. Terrence Pharo, a manager of the
appellant who was present, had to use force to get
through the door,
in the face of the respondent and another co-worker blocking access
to the door. The significance of that testimony
was that the
respondent made common cause with the assault and the deliberate
disruption of the proceedings.
[8]
Skhosana
testified that she was, throughout the affair, mute and seated at the
back of the room. She denied the allegations against
her. She
conceded the fracas which she said was the fault of Nolan who sought
to record the disruption.
[9]
The
task of the arbitrator was thus to make a credibility finding about
what facts were to found proven. The arbitrator concluded
that the
version implicating her was preferable. Accordingly, it was concluded
that she committed the misconduct complained of.
[10]
As
to the absence of an enquiry, the employer was criticised on the
basis that no sound reason existed not to convene an enquiry
into her
alleged misconduct on 11 February. There was no consideration given
to whether the circumstances that prevailed were such
as to excuse
the employer from holding an enquiry as contemplated in paragraph 4
of the code of good practice on dismissal in schedule
8 to the Labour
Relations Act 66 of 1995 (LRA). In the absence of a cross-review and
cross-appeal, this dimension of the matter
shall not be explored.
[11]
An
issue raised pertinently in the respondent’s heads of argument
and a central aspect of the review application and the judgment
a
quo
was the provision in the disciplinary code, a part of a collective
agreement between the appellant and the respondents’ trade
union, for an enquiry to precede disciplinary sanctions. It was not
pressed in argument before us, but owing to its significance
in the
reasoning offered by the court
a
quo
,
it is appropriate to address the point. In the course of the
arbitration, the representative for Skosana alluded to the collective
agreement binding on the employer. Among its provisions was clause 7
of that collective agreement which provides:
‘
7.1.1: The
rules of natural justice must be observed in the conduct of
proceedings.
7.1.2: Unless otherwise agreed to by
the parties, the hearing must be adversarial in
nature and character’.
The contention was
advanced on behalf of Skhosana that the common cause failure to hold
an enquiry prior to dismissal was a contravention
of the collective
agreement.
The review judgment a
quo
[12]
The
review grounds raised in the founding affidavit were threefold;
first, that it was unfair to find that despite the dismissal
being
procedurally unfair, no compensation was granted; second, the factual
findings rejecting her version, were wrong; and third,
that the
conclusion that she had shown no remorse was inappropriate as no
opportunity could exist in the absence of an enquiry.
A supplementary
founding affidavit was filed raising another ground; ie that the
dismissal was in breach of a collective agreement
and contended that
because the arbitrator did not address that point, on such a ground
alone, the award could not stand.
[13]
The
burden of the judgment given
a
quo
was the issue of the non-compliance with provisions of the collective
agreement as regards an enquiry. The court
a
quo
reached the conclusion that the arbitrator had misdirected himself
about the “type of enquiry” he had to embark on
and
should have examined and applied the collective agreement.
Evaluation
The rationale of the
judgment a quo
[14]
It
is argued on behalf of the appellant that the court
a
quo
misdirected itself in the approach it adopted to decide the review.
The thesis is that the point of departure ought to be first
to
identify the cause of action that was referred to arbitration. That
cause of action, it is contended, is an alleged unfair dismissal,
not
an alleged breach of a collective agreement. The submission is sound.
Indeed, a claim based on a breach of a collective agreement
is one
that is regulated by section 24 of the LRA.
[2]
The dispute referred in this case is about an alleged unfair
dismissal and is regulated by section 191 of the LRA.
[3]
Moreover, the relief sought is that which is regulated by section 193
of the LRA which provides remedies for unfair dismissals,
not
breaches of a collective agreement.
[15]
Moreover,
this Court has addressed the marginality of a collective agreement in
relation to an unfair dismissal in
Highveld
District Council v CCMA and Others.
[4]
The
remarks at [14] – 16] are apposite.
‘
[14] The
relevant issue referred to the arbitrator was whether the
respondent's dismissal was procedurally fair. Put differently,
the
respondent sought to vindicate his right in terms of s 185 of the
Labour Relations
Act
66 of 1995
(the
Act) not to be unfairly dismissed. More specifically, the respondent
sought to vindicate his right in terms of s 188(1)
(b)
of
the Act to be dismissed only in accordance with a fair procedure
.
It is a right separate and distinct from the respondent's contractual
rights in terms of the collective agreement.
[15] Where the parties to a collective
agreement or an employment contract agree to a procedure to be
followed in disciplinary
proceedings, the fact of their agreement
will ordinarily go a long way towards proving that the procedure is
fair as contemplated
in s 188(1)
(b)
. The mere fact that a
procedure is an agreed one does not, however, make it fair. By the
same token, the fact that an agreed procedure
was not followed
does not in itself mean that the procedure actually followed
was unfair.
Mr
Venter
for
the respondent referred us to the arbitration award in
Ned
v Department of Social Services & Population
Development
(2001)
22 ILJ 1039 (BCA)
where
(at 1044B) the arbitrator said: 'The failure to honour an obligation
expressly undertaken, is per se unfair conduct.'
I must point
out that an arbitrator's award does not constitute an authoritative
precedent.
In
any event, read in its full context, especially in the context of
what is said at 1040 of the report,
I
do not think that the arbitrator in that case was stating a general
proposition that failure to comply with an agreed disciplinary
procedure in itself constitutes an unfair procedure in breach of the
Act.
If,
however, Mr
Venter
was
correct and that is what the arbitrator said in the
Ned
case,
I cannot agree
.
When deciding whether a particular procedure was fair, the tribunal
judging the fairness must scrutinize the procedure actually
followed.
It
must decide whether in all the circumstances the procedure was fair
(
Leonard
Dingler (Pty) Ltd v Ngwenya
(1999)
20 ILJ 1171 (LAC)).
[16] It does not follow from this
conclusion that a contractual procedure does not give rise to
contractual rights that a contracting
party can enforce in the
appropriate forum and in the appropriate manner.
In this case,
however, we are not called upon to adjudicate a contractual right,
but a statutory right to a dismissal that is procedurally
fair.
’
(underlining supplied)
[16]
The
court
a
quo
relied heavily decision in
Steven
Ngubeni v National youth Development agency
,
[5]
to justify the focus on the collective agreement as the central
issue. However, the decision is plainly distinguishable. In that
case, the cause of action relied on by
Ngubeni
was
a contractual right and he came before the court pursuant to the
Labour Court’s concurrent civil jurisdiction in terms
of
Section 77(3)
of the
Basic Conditions of Employment Act 75 of 1997
.
What was sought there was specific performance of a contractual right
to an enquiry prior to a lawful termination of a contract,
not an
unfair dismissal dispute, which is the cause of action in this
matter. It is not open to a court to conflate the two causes
of
action.
[17]
Accordingly,
the court
a
quo
indeed approached the matter incorrectly.
The award
[18]
It
is useful to be reminded of the test for review in
Sidumo
.
The test is concerned with outcomes, not the process by which the
outcomes are achieved. Only when the outcome is one which no
reasonable arbitrator, with the material that was to hand, could
produce, is an award liable to be set aside. The frailties of
an
arbitrator’s reasoning, or inattention to mentioning every
facet of relevance, or clumsiness in articulation are unimportant,
unless they are causally connected to an unfair outcome.
[19]
In
my view, the award is unassailable.
[20]
The
decision reached on the substantive fairness leg is supported by
witnesses whose credibility was in contestation with that of
Skhosana. The function of the arbitrator is to make credibility
findings. Nothing in the record suggests that the arbitrator’s
conclusions are findings which no reasonable arbitrator could make.
The factual findings are not shown to be in error, indeed the
overwhelming weight of evidence and the probabilities supports the
conclusions. This is illustrated boldly by the fact that the
evidence
of Siyabonga Mpontshana, the attorney appointed to prosecute the
case, whose evidence about the fracas was that the respondent
was
among those who howled and shouted, and who exhorted the others to
beat him up when he tried to intervene in the attack on
the chairman,
was never challenged by a contrary version being put to him in
cross-examination.
[21]
As
to procedural fairness, the view taken by the arbitrator was that it
was open to the employer to have convened a pre-dismissal
enquiry. It
has already been mentioned that in the absence of a cross- review on
this conclusion it is unnecessary to consider
whether it might indeed
have been excusable to convene another enquiry when the very
misconduct was the rendering of an enquiry
impossible. The criticism
by the arbitrator therefore stands.
[22]
Section
194(1)
of the LRA requires any compensation to be “just and
equitable” in the circumstances. The subsequent decision of the
arbitrator not to award compensation on the grounds that the riotous
behaviour by Skhosana and her co-workers in the enquiry was
so
serious that it warranted a deviation from the usual response to
procedural unfairness was, in the circumstances, a proper exercise
of
discretion and is not assailable.
[6]
In addition, it may be mentioned that the respondent, when exercising
her right to
audi
alterem
partem
in the arbitration proceedings persisted with a mendacious denial of
the facts and therefore showed no remorse whatsoever when
that
opportunity was available to her. Also, no less important was the
standing and role of the respondent in the appellant’s
employ,
which if anything was rightly weighed as aggravation.
Conclusions and costs
[23]
The
appeal must be upheld.
[24]
Both
parties seek costs.
[25]
The
Review court made no order as to costs; however, it is appropriate
that the appellant, in the circumstances, ought to be granted
costs
of those proceedings too.
The Order
(1)
The
failures of the appellant to comply with the requirements of the
court as to the timeous filing of an appeal record and of heads
of
argument are condoned.
(2)
The
appeal is reinstated.
(3)
The
appeal is upheld.
(4)
The
order of the Labour Court is set aside.
(5)
The
award is confirmed.
(6)
The
first and second respondents shall bear the appellant’s costs
in the review and in the appeal, jointly and severally,
the one
paying the other to be absolved.
_________________
Sutherland
JA
Sutherland
JA (with whom Musi and Coppin JJA concur)
APPEARANCES:
FOR THE
APPELLANT:
Adv N A Cassim SC
Instructed by Tshiqi
Zebediela Inc.
FOR THE FIRST AND SECOND
RESPONDENTS: Adv D V Nxumalo
Instructed by Cheadle
Thompson and Haysom.
[1]
Sidumo
and Others v Rustenburg Platinum Mines and Others
(2007) 28 ILJ 2405 (CC).
[2]
The
relevant portion of Section 24 provides;
Disputes about
collective agreements
(1) Every
collective
agreement
excluding an agency shop agreement concluded in
terms of section 25 or a closed shop agreement concluded in terms of
section
26 or a settlement agreement contemplated in either section
142A or 158 (1)
(c)
, must provide for a procedure to
resolve any dispute about the interpretation or application of
the
collective agreement
. The procedure must first
require the parties to attempt to resolve the
dispute
through
conciliation and, if the
dispute
remains
unresolved, to resolve it through arbitration.
(2) If there is
a
dispute
about the interpretation or application
of a
collective agreement
, any party to the
dispute
may
refer the
dispute
in writing to the Commission if-
(a)
the
collective
agreement
does
not provide for a procedure as required by subsection (1);
(b)
the
procedure provided for in the
collective
agreement
is
not operative; or
(c)
any
party to the
collective
agreement
has
frustrated the resolution of the
dispute
in
terms of the
collective
agreement
.
(3) The party who refers
the
dispute
to the Commission must satisfy it that
a copy of the referral has been
served
on all the
other parties to the
dispute
.
(4) The Commission must
attempt to resolve the
dispute
through
conciliation.
(5) If
the
dispute
remains unresolved, any party to
the
dispute
may request that the
dispute
be
resolved through arbitration.’
[3]
The
relevant portion of section 191 provides:
(1)
(a)
If
there is a
dispute
about the fairness of
a
dismissal
, or a
dispute
about an
unfair labour practice, the dismissed
employee
or
the
employee
alleging the unfair labour practice
may refer the
dispute
in writing to-
(i) ….
(ii) the
Commission ….
(b)
…
.
(2)…(3)
(5) If
the
dispute
remains unresolved-
(a)
….
the Commission must arbitrate the
dispute
at
the request of the
employee
if-
(i) the
employee
has
alleged that the reason for
dismissal
is
related to the
employee's
conduct
….
[4]
(2003)
24 ILJ 517 (LAC).
[5]
The
correct citation is (2014) 35 ILJ 1345 (LC).
[6]
The
reliance by the arbitrator on the decision in
Johnson
& Johnson v CWIU
(1999)
20 ILJ 89 (LAC) at [51] was apposite in the circumstances. In that
matter a procedurally unfair retrenchment attracted
no compensation
order because of the ‘unreasonable obstinacy’ of the
union who sought to exploit a procedural error
despite a tender by
the employer to retract and fully comply with section 189 of the
LRA.