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[2001] ZALCJHB 15
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Rustenburg Platinum v CCMA and Others (J712/200) [2001] ZALCJHB 15 (4 October 2001)
REPORTABLE
IN THE LABOUR COURT OF
SOUTH AFRICA
SITTING
IN JOHANNESBURG
CASE
NO
J712/2000
[Matter argued and
judgment
reserved
on 4/10.2001]
In
the matter between:
RUSTENBURG
PLATINUM
Applicant
and
CCMA
&
OTHERS
Respondents
ON
BEHALF OF
APPLICANT
A T MYBURGH
ON
BEHALF OF
RESPONDENT
F A BODA
TRANSCRIBER
SNELLER
RECORDINGS (PROPRIETARY) LTD
–
DURBAN
J
U D G M E N T
GERING
AJ
[1]
This is one of those cases where a commissioner of the CCMA has made
a finding in arbitration proceedings as to the existence
of
misconduct, but has decided that the sanction of dismissal imposed by
the employer was too harsh and has imposed a lesser sanction.
[2]
The issue in this case is whether the commissioner's award that
dismissal was too harsh and was not an appropriate sanction,
should
be set aside by the Court pursuant to an application by the employer
(the applicant) under section 145 of the Labour Relations
Act 66 of
1995 (the "Act").
[3]
The award appears in a paginated bundle of papers contained in a
lever arch file (the Bundle) at pages 61 - 73.
(Page references to the Bundle will be referred to as "B"
followed by the relevant page number).
[4]
The commissioner (Mr E R Mafolo) is the second respondent, the
employer is the applicant, and the three employees who were dismissed
by the employer, are the third, fourth and fifth respondents.
At times they will be referred to simply as the three employees.
[5] The lesser sanction
imposed by the award appears on B73:
"1.
that the employees be issued with final warning notices valid for a
period as determined by the employer's
disciplinary procedure;
2.
that the employer pays compensation to each employee the amount that
equals to six months' salary calculated
at the rate of pay each
received prior to their termination of service;
3.
that the employer complies with section 195 of the Act;
4.
that the employer to comply with the terms of this award within
fourteen days after receipt thereof."
[6] Helpful
heads of argument were filed and the matter was argued by Mr
A
T Myburgh
for the applicant and Mr
F A Boda
,
counsel for the three employees. I was referred to three
articles in Law Journals, namely:
(a)
"
Dismissal as a Penalty for Misconduct"
[2000] 21
ILJ 2145, by Myburgh and van Niekerk;
(b)
"
More Reasonable than Others"
[1999] 15(2)
Employment Law 15, by Grogan; and
(c)
"
Dismissals and the 'Reasonable Employer'"
[1999]
8(12) Contemporary Labour Law 101, by Le Roux.
See
also
Employment Law
[2000] 16(2), "
Death of the
Reasonable Employer"
and
[2000] 16(5)
"Who is the Fairest"
,
by Grogan.
[7] In the
applicant's heads, paragraph 44, the following is stated:
"Once it is accepted
that the reasonable employer test is the correct approach to be
adopted, it is submitted that it follows
that the commissioner
in
casu
committed a reviewable irregularity in failing to adopt the
aforesaid approach."
In
my view this submission is unsound and is clearly contrary to the
decision of the Labour Appeal Court in
Toyota
SA Motors Ltd v Radebe
[2000] 21 ILJ
340.
[8] In the
Toyota
case NICHOLSON JA stated:
"I do not believe
that the 'reasonable employer test' is part of our law."
[At 354, para 50.] He went on to
state that he believed:
"... that the
application of the reasonable employer test was a palpable mistake."
[At 354, para 50.]
ZONDO AJP (as he then
was) agreed with his conclusion, as well as with his reasons for that
conclusion [At 341, para 2.]
MOGOENG
AJA agreed with both judgments.
[9]
In my respectful view, the rejection of the 'reasonable employer'
test as part of our law is part of the
ratio
decidendi
in the
Toyota
case.
[10]
A commissioner in giving an award in a dispute about the fairness of
a dismissal must comply with the provisions of the
Act.
[11] Section
188(2) of the Act expressly provides that:
"Any person
considering whether or not the reason for dismissal is a fair
reason..." must
"... take into
account any relevant code of good practice issued in terms of this
Act."
This refers to Schedule
8, entitled "
Code of Good Practice: Dismissal"
.
Item 2(1) thereof expressly states:
"Whether or not a
dismissal is for a fair reason is determined by the facts of the case
and the appropriateness of dismissal
as a penalty."
Item 3(4) states:
"Generally, it is
not appropriate to dismiss an employee for a first offence, except if
the misconduct is serious and of such
gravity that it makes a
continued employment relationship intolerable."
Item 7 provides that:
"Any person who is
determining whether a dismissal for misconduct is unfair should
consider the provisions of paragraphs (a)
and (b)."
These paragraphs provide
as follows:
"(a) Whether
or not the employee contravened a rule or standard regulating conduct
in, or of relevance to, the workplace;
and
(b) if
a rule or standard was contravened, whether or not
(i) the
rule was a valid or reasonable rule or standard,
(ii)
the employee was aware, or could reasonably be expected to have been
aware, of the rule or standard;
(iii) the
rule or standard has been consistently applied by the employer; and
(iv)
dismissal was an appropriate sanction for the contravention of the
rule or standard."
[12] In the
Toyota
case, NICHOLSON JA stated:
"It seems to me to
be significant that a statutory arbitrator is also required to find
if a sanction is fair." [At 354
para.50]
In
my respectful view this statement is fully supported by the
provisions of the Act set out above, and accordingly I differ, with
respect, from the contrary view of WILLIS JA in
De Beers
v CCMA
[2000] 21 ILJ 1051 at 1064 para.
57).
[13] Indeed, as
stated in
Mzeku v Volkswagen
[2001] 8 BLLR 857
(LAC) at 863,
para. 15:
"Where the conduct
for which the employees are dismissed is unacceptable but the
sanction of dismissal is, in all the circumstances,
not a fair
sanction, the dismissal cannot be said to be substantively fair."
This
was the conclusion reached by the commissioner in the present case.
[14] NICHOLSON JA
quoted with approval the statement by John Brand in which the
latter rejected the 'reasonable employer'
test in "ringing
terms" (at page 353, para. 49). The statement by John
Brand included the following:-
"The
correct approach it seems to me is to consider whether the sanction
is fair, having regard to existing industrial relations
common law
and norms. Now applying this to the present case, it was common
cause that the rules were fair. I, therefore,
have to determine
whether the grievants have been proved on the evidence presented to
me to have been guilty of the offences charged
and whether dismissal
was the appropriate sanction." [See also [2000] 21 ILJ
2145-46.]
[15]
In sharp contrast to the position in the above cited passage, in the
present case it was not common cause that the rules
were fair.
[16]
As it was common cause that there had been a dismissal the
onus
was on the employer, in terms of section 192(2) of the Act to prove
that the dismissal was fair, including whether it was an appropriate
sanction, having regard to the provisions of the
Code
of Good Practice
set out above and "the
rule that each case should be judged on its merits". [Item
3(4) of Schedule A.)
[17]
There is much confusion in the evidence of the employer's witnesses
as to which were the applicable rules, and there
is reference to (a)
the SAFA rules; (b) the tournament rules; and (c) the workplace
rules. I refer to the following passages
in the bundle of
documents. [B265/266, B269, B289, B296-98, B303, B304, B474/5
para. 10, B491/2 para. 491, B493 paras.78-80.]
[18]
The misconduct in question took place on the morning of Saturday, 24
October 1998, not in the workplace nor even on the
employer's
premises but on the soccer field in the course of a soccer tournament
held at the West Driefontein Mine. [See B15, para.18.]
[19] The third
respondent was a senior welfare assistant at the applicant's B
Hostel; this was the normal scope of his duties
[See B506 para
130.2.1]. He was the sports organiser at the applicant mine,
and was the team manager of the Amplats soccer
team. This was the
first time he had been the team manager [See B301, B330].
He was described as a "great sportsman"
[See B272, B327].
He had been employed since March 1991 [See B11 para.6].
[20]
The fourth respondent was employed by the applicant as a chief clerk
at the applicant's Phula Hostel; that was the normal
scope of his
duties [See B506 para.130.2.2] and he was the senior coach of the
Amplats team. He had been employed since March
1997 [See B11
para.7].
[21]
The fifth respondent was employed by the applicant as a clerk at the
applicant's B hostel; this was the normal scope
of his duties [See
B506 para.130.2.3] and he was the assistant coach. This was the
first time he had acted in this capacity.
[See B331]. He
had been employed since April 1990 [See B11 para.8].
[22] These three
employees were part of the management team of the Amplats soccer team
together with one Saayman [See B325].
As stated by Saayman
[B299] in answer to the question:
'Was these
responsibilities in writing given to each one of them [the three
employees]? --- No.
Was it part of the
tournament rules? --- No."
Mr
Saayman's evidence appears at B265 - B275 and B288 - B336.
[23]
The problem that gave rise to the dismissal was the belief by the
three employees that their team qualified to play in
the semi-finals
and that the SAFA rules applied and governed this question [See B152,
B190, B267, B499 para. 105, B501 para.112].
Under the SAFA
rules the Amplats soccer team qualified but under the tournament
rules it appeared that the Amplats soccer team
did not qualify.
I may add that the relevant page of the tournament rules dealing with
this was not placed before the commissioner
[See B306 - B307].
[24]
The tournament rules were decided at a meeting in August 1998 without
any of the three employees being present [See B333].
It is
clear from the evidence of each of the employees that they believed
that the SAFA rules applied and they were unaware that
the tournament
rules led to a contrary result. Nowhere on the evidence does it
appear that prior to the scheduled start of
the semi-final match
on the morning of 24 October 1998 did Mr Saayman (or anybody
else) draw the attention of any of
the three employees to this
material point [See B325 and B496 para.91].
[25]
It is interesting to note that it is stated by the applicant in the
affidavit filed on its behalf that, "the rules
of the game are
paramount" [See B16 para.26.3].
[26]
The result of this was the Amplats team remained on the field until a
clear explanation was given to the effect that
under the tournament
rules the team did not qualify for the semi-finals. According
to a report in the Mining News the other
team qualified on a
technicality [See B 313].
[27]
The Amplats team remained on the field for approximately two and a
half hours until they received a clear explanation.
[28]
It seems to me that the belief of the three employees that the SAFA
rules governed was most material in considering whether
or not the
sanction of dismissal imposed by the employer was an appropriate
sanction. This is not referred to anywhere in
the applicant's
founding affidavit.
[29]
It is of course clear that there are some unsatisfactory features in
the award. Thus it is stated that the employees'
behaviour was
"not one of the best" [See B71] without specifying any
particularity in relation to each particular employee;
in regard to
the allegation of assault (which related only to the fifth
respondent) he stated it had not been "conclusively"
proved, whereas the test is proof on a preponderance of
probabilities; he refers in a general way to the need for the rules
to
be valid and clear without specifying which rules were applicable
and whether each of the three employees knew or could reasonably
have
been expected to have been aware that the rules were applicable and
that under the rules the team in question did not qualify
for the
semi-final.
[30] As stated in
Shoprite Checkers (Pty) Limited v Ramdaw N.O.
[2001] 9 BLLR
1011[LAC]
at 1043 para.101:
"In my view it is
within the contemplation of the dispute resolution system prescribed
by the Act that there will be arbitration
awards which are
unsatisfactory in many respects but nevertheless must be allowed to
stand because they are not so unsatisfactory
as to fall foul of the
applicable grounds of review. Without such contemplation, the
Act's objective of the expeditious resolution
of disputes would have
no hope of being achieved. In my view the first respondent's
award cannot be said to be unjustifiable
when regard is had to all
the circumstances of this case and the material that was before him."
In
my view this statement applies equally to the present case.
[31] There are a
number of factors which support the view that dismissal, which has
been described as "the supreme penalty"
[See
Toyota
case cited above, page 352, para. 44] or "the ultimate sanction"
[See
Orange Toyota v van der Walt
[2001] 1 BLLR 85 at 88,
para. 17] was not appropriate in the present case. I would
mention the following:
(a) The
belief by the three employees, on the basis of the SAFA rules, that
their team qualified for the semi-finals,
and they were never
informed prior to the match that the tournament rules led to a
different result.
(b)
This was the first time that the third respondent acted as the team
manager [See B301, B330].
(c)
Their duties in relation to the soccer tournament were outside the
normal scope of their duties in the workplace.
(d)
There was no evidence of the rules applicable in the workplace and
that the three employees were informed
that the work rules would
apply during the tournament [See B508 para.138].
(e) The
three employees were singled out even though other employees, who
were members of the team, had been guilty
of misconduct [See B472].
No disciplinary action, however, was taken against any other team
members who were employees
of the applicant.
(f) The
three employees were banned pursuant to a decision by the tournament
[See B472]. The three employees
were banned for life.
(g)
That the employer's witnesses exaggerated the evidence, for example
stating that the players' "invaded"
the field.
(h)
There was no physical damage or injury caused.
(j)
These were first offences.
(k)
The length of service of each of the three employees.
[32] I may add that
there was no attack on the arbitrator's award on the basis of his
finding that there was no procedural
unfairness. The
commissioner found that the dismissal was procedurally fair and the
applicant obviously took no issue with
that finding [See B29
para.77.1, B30 para.79].
[33]
In my view there was a reasonable and objective basis on the evidence
for the commissioner to come to the conclusion
that dismissal was too
harsh in relation to the gravity of the offence and was not a fair
sanction, and no grounds have been established
under section 145
of the Act to warrant the setting aside of the commissioner's award.
[34] I,
accordingly, order that the application for the review and setting
aside of the commissioner's award be dismissed
with costs.
_________________________________
GERING
AJ
ACTING JUDGE OF THE
LABOUR COURT