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[2006] ZALCJHB 6
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Fidelity Springbok Securit Services v Commission for Conciliation Mediation And Arbitration and Others (JR1275/01) [2006] ZALCJHB 6 (7 March 2006)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE
NUMBER: JR1275/01
In
the matter between:
FIDELITY
SPRINGBOK SECURIT
Applicant
SERVICES
(Pty) Ltd
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First
Respondent
CRONJE
NO
Second
Respondent
WEBISI
TELFORD
Third
Respondent
JUDGMENT
CELE
AJ
INTRODUCTION
[1]
This is an application in terms of section 145 of the Labour
Relations Act 66 of 1995 (“the Act”) to review and
set
aside an arbitration award dated 14 June 2001 issued by the second
respondent while he was acting under the auspices of the
first
respondent. The application is opposed by the third respondent.
Background
Facts
[2]
The third respondent commenced employment with the applicant on 8
October 1992 as a security officer. He then became a member
of a
trade union, SATAWU and later on, he became a shop steward of SATAWU.
[3] On
28 December 2000 there was a national security protected strike. A
number of applicants’ employees gathered at the
Bloemfontein
branch offices of the applicant. The third respondent was among the
strikers that morning. There was a knock on the
door of applicant’s
offices and one Mr L Tiller, the applicant’s Branch Manager in
Bloemfontein; went to answer it
by opening the Wooden door. He left
the security gate closed. The third respondent stood at the opened
door and he asked to rather
speak to Mr Pretorius, an Operations
Manager. Whether the third respondent did or did not speak to Mr
Pretorius is part of disputed
facts. Mr Tiller then closed the door
without allowing the third respondent in.
[4]
Members of the SAPS then arrived at the offices of the applicant.
They spoke to Mr Tiller and the third respondent. The third
respondent and his colleague, as shop steward, Mr Motumi were allowed
to enter the office. They made a telephone call to the applicant’s
head office relating to salaries. The third respondent spoke to a Mr
Barry Woan. A document was then sent by telefax and a copy
of it was
given to the third respondent and then the employees group and the
police left the building. The police addressed the
group outside and
then the group and the police left the scene.
[5] As a result of the
incident of 28 December 2000, the third respondent was charged by the
applicant with an act of misconduct.
The charge read:
“
On
28 December 2000, whilst participating in a national strike, you
picketed at Bloemfontein branch office, in the process enticing
fellow strikes also to picket with common intent, you threatened
management to hold them hostage at the branch office until the
following morning, you further had common intent to cause damage to
company property and in the process you smashed against the
company
premises’ door with a 500ml cold drink bottle, causing damage
to said door.”
[6]
The internal disciplinary hearing proceeded on 22 January 2001. The
third respondent attendant the hearing with two representatives,
a Mr
Mattai and a Mr Mabaso. The third respondent however, refused
to participate in the proceedings. He neither made any
statement nor
answered any questions.
[7] At
the end of the hearing, the third respondent was found to have
committed the act of misconduct with which he had been charged
and he
was dismissed on that day, 22 January 2001. The third respondent was
aggrieved by the dismissal. A dismissal dispute then
arose between
the third respondent and the applicant. On the following day, the
third respondent referred the dismissal dispute
for conciliation, to
the first respondent. Conciliation failed to resolve the dispute. A
certificate of outcome was issued by the
first respondent on 23
February 2001. It was endorsed that the dispute was concerning an
unfair dismissal. On that very day, the
third respondent referred the
dispute for arbitration.
[8]
The arbitration proceedings were held on 2 May 2001 and on 21 May
2001. The second respondent finally found that the dismissal
of the
third respondent was substantively unfair. He then ordered the
applicant to reinstate the third respondent with retrospective
effect
to date of dismissal and on terms no less favourable than were
applicable at the time of dismissal. It is this ruling which
the
applicant now seeks to have reviewed and set aside.
Arbitration
proceedings
[9] Mr
S.T. Matlou of SATAWU represented the third respondent while Ms Y.C.
Taylor, a Labour Relations office appeared for the applicant.
Dismissal of the third respondent was not in issue and so the
applicant called its two witnesses first. They were Mr Tiller and
Mr
Pretorius.
[10]
The evidence of both Mr Tiller and Mr Pretorius was that when Mr
Tiller opened the door after the initial knock, the third
respondent
asked to speak to Mr Pretorius. Mr Tiller called Mr Pretorius who
came and had a discussion with the third respondent.
The third
respondent informed them that employees gathered at the offices had
come out of concern as they had not received their
salaries which
were normally paid to them on the 25
th
of every month. They had also come there to get their salary slips.
It was conceded by the applicant that the third respondent
had
telephoned the office and had alerted them that employees would come
there out of concern for the two issues, namely their
no- payment of
salaries and for their salary slips. The evidence of the applicant
was that the discussion between Mr Pretorius
and the third respondent
did not help to resolve the issues. Mr Tiller then closed the door
with the third respondent not allowed
in. Messrs Tiller and Pretorius
said that as the door was closed, they had seen the third respondent
being in possession of a 500ml
mineral glass bottle. They also added
that before the door was closed, the third respondent had threatened
them by saying that
the employees group would sleep at the office and
would not go home. Applicant’s view was that once the door was
closed there
were loud bangs on the front door, on the windows on the
door next to the garage and on the steel roller – up door which
had been kept closed. Mr Tiller said that he did see the third
respondent knocking at the door with the bottle. Mr Pretorius said
that he did not witness such as the door was then closed.
[11]
It was applicant’s evidence that the banging at the offices
caused the staff members who were inside to fear for their
lives. The
further evidence was that the front door was damaged and had bottle
marks and there was a crack on the door which was
close to the
garage. It was conceded by Mr Tiller that damage on the front door
could be erased by means of sand – paper
or a machine but that
the other wooded door would have had to be replaced.
[12]
It was further conceded that the applicant did not file any report to
the police about the events which ensued at the office.
In explaining
why a charge was not laid with police, Mr Tiller said that they just
wanted the police to resolve the matter, which
was what the police
had said they had come for.
[13]
The applicant’s further evidence was that the third respondent,
as a shop steward and leader, did not intervene when
there was
banging at the offices. That in brief was applicant’s case.
[14]
The third respondent’s version was that when he arrived at the
office door and knocked, he did not have a mineral bottle
as alleged
by the applicant. He was met by Mr Tiller whom he did not know and
asked to speak to Mr Pretorius but was told that
he was busy and Mr
Tiller asked how he could be of help. The third respondent said he
told him that the employees were there for
their earnings and their
pay slips. He said that Mr Tiller told him that their money had been
deposited into the bank whereupon
the third respondent produced a
bank statement to show that no payments had been made. He said that
he asked to be allowed into
the office so that he could speak either
to Mr Vaal Baartman or Mr Banny Woan at head office. He said that Mr
Tiller would not
allow him into the building as they were on a
strike. He said that he told Mr Tiller that in 1998, when workers
were on a strike
they came to the offices on a pay day and were paid.
He said that Mr Tiller still refused him entry and instead closed the
door
and walked away.
[15]
The third respondent said that he continued to knock at the door and
then saw police arriving. He said that they questioned
him and then
knocked at the door which was opened by Mr Tiller. He said that the
police questioned Mr Tiller and finally convinced
him to let him and
an other shop steward in. Once they got inside, with the police, he
said that he spoke to Mr Woan and reported
to him that the employees
had not received their pay. He said that Mr Woan who sounded
surprised by the report, undertook to investigate
the matter and to
telephone them back. After a while a telephone call came through and
the third respondent said he spoke to Mr
Woan who promised to sort
everything and, as agreed to between the parties, Mr Woan sent a
document by telefax to confirm his undertaking.
The third respondent
said that he gave one copy of that document to the police, one to Mr
Tiller and kept one for himself. He said
that the employees’
group and the police then left the offices but the police told them
not to return to the offices in the
event payments were not received
by employees as promised but that he was to telephone them instead.
When indeed no payments were
received as promised, he said that he
telephoned the police and that helped to resolve the problem.
[16]
The third respondent said that the strike went on until 3 January
2001 when it was decided that it was to end. He said that
on 4
January 2001, he communicated with management and reported that
employees on the night shift would start to work. He said
that
management informed him that not all employees were to report back
for duty. He said that he was told to come to the office
to collect
some documents and when he did, he found that those were letters of
suspension of some of the employees, including him.
He said that up
to the day he attended the disciplinary hearing the applicant company
had not informed his union that he was suspended
and charged with
misconduct.
[17]
The evidence of the third respondent was further that he raised the
issue of the union not having been informed of the charges
against
him, as a shop steward. The chairperson of the disciplinary hearing
allowed that to be investigated and, the third respondent
said that
when an instruction came from head office of the applicant for the
chairperson to proceed with the hearing, the chairperson
took the
position that he would not preside in an enquiry where prescribed
procedures were not followed and he took his belongings
and left. He
said that he also left with his companions.
[18]
The third respondent said that he attended the next hearing after
being duly warned for it but decided not to take part in
it as proper
procedures had not been followed by the applicant even after the
union had raised the issue with them. He said that
at the end of the
hearing he was found to have committed the act of misconduct with
which he was charged and was dismissed. He
was told of his rights to
appeal and he said he lodged documents for the appeal but that the
applicant never constituted the internal
disciplinary appeal hearing.
He then referred the dismissal dispute to the CCMA for conciliation
but he said that the applicant
did not attend that hearing.
[19]
The third respondent then called Mr Moleka and Mr Malangwana. Both
said that the third respondent did not have a bottle while
he stood
at the office door and they said that he did not speak to Mr
Pretorius while he was standing outside the office door.
They both
denied that there were any markings left on the front office door as
a result of the knocking or banging on it. They
said that he was
knocking with his hand. Both said that the third respondent did not
threaten management. After all the evidence
was led, the second
respondent took the parties for an inspection
in
loco
– to observe the condition
of the office door. The proceedings were then adjourned for parties
to hand in their written arguments.
That was basically the evidence
of the third respondent.
The
arbitration award
[20]
The second respondent found on the probabilities of the case that the
third respondent had a mineral bottle as he was at the
office door.
He said that as a result of the inspection
in
loco
, he had observed various markings
on the front door indicating half circles which might correspond to
the bottom of a bottle being
used on the door. He said that there was
no evidence which suggested to him that there either were or were no
markings on that
door before the incident in question. He said that
he could therefore not find on a balance of probabilities that the
third respondent
indeed used the bottle when he knocked against the
door. He said that, even if he accepted that the third respondent
used the bottle,
the damage to the door was of minimal nature. He
went on to examine whether the only reasonable option was a
dismissal, if it was
to be accepted that the third respondent used
the bottle on the door. He found guidance on the words used in the
charge sheet which
he said indicated some form of evidence. He found
on the balance of probabilities that the third respondent did not, in
a violent
way, knock or “smash” against the said door. He
found that dismissal was not justifiable.
[21]
Regarding the intent to threaten management, to hold them hostage, he
found that at no point was any reference made that employees
would
sleep inside the building or that they would hold the management
hostage inside the building until they received their payment.
[22]
He found that, on the evidence, there were indeed other employees who
committed acts of banging against windows and kicking
against doors.
He said that on the evidence there was no common intent made by the
third respondent to associate himself with such
conduct. The only
intent which he said emanated from all the evidence, was of
collecting money and payslips. He said that there
was no evidence
which could justify the employer to dismiss the third respondent for
his misconduct during the strike action or
for the employer’s
operational requirements.
[23]
He found that the applicant had complied with the procedures
regarding the holding of a disciplinary enquiry as the union,
SATAWU,
was subsequent to the suspension of the third respondent, informed of
it and he found that the third respondent had ample
time to prepare
for the hearing.
[24]
He then found that the dismissal of the third respondent was
substantively unfair and he ordered the applicant to reinstate
him
with retrospective effect from the date of dismissal without any loss
of benefits. The applicant felt aggrieved by this finding
and has
embarked on the application to have the award reviewed and set aside.
Grounds
for review
[25] Two grounds for
review appear to have been relied upon by the applicant namely:
(1)
Gross irregularity – by failing to properly determine the
evidence before him, and
(2)
Unjustifiability and irrationality of the decision of the second
respondent.
Analysis
[26]
The review application is premised on the provisions of section 145
of the Act which reads:
“
(1)
Any party to a
dispute
who alleges a defect in any arbitration proceedings under the
auspices of the Commission may apply to the Labour Court for an order
setting aside the arbitration award-
(a)
within six weeks of the date
that the award was served on the applicant, unless the alleged
defect
involves the commission of an offence referred to in part 1 to 4, or
section 17, 20 or 21(in so far as it relates to the
aforementioned
offences) of Chapter 2 of the Prevention and Combating of Corrupt
Activities Act, 2004; or
(b)
if the alleged defect involves
an offence referred to in paragraph (a) within six weeks
of the date
that the applicant discovers such offence.
(2)
A defect referred to in section (1), means –
(a)
that the commissioner –
(i)
committed misconduct in relation to the ,duties of the commissioner
as an arbitrator;
(ii)
committed a gross irregularity in the conduct of the arbitration
proceedings; or
(iii)
exceeded the commissioner’s powers; or
(b)
that an award has been improperly obtained”.
[27] The applicant has
also placed reliance for their application
inter alia
on
Shoprite Checkers (Pty) Ltd v Ramdaw NO & others (2001) 22 ILJ
1603 (LAC).
On page 1631 at para 82, Zondo JP had this to say-
“
In
considering whether or not the first respondent’s award falls
to be set aside on the ground that it is not justifiable
in relation
to the reasons given for it, I consider that one must have regard to
the material that was properly available to the
first respondent, the
decision he took and the reasons that he gave for such decision. As
one does this, one must bear in mind
what Chaskalson P said in the
Pharmaceutical Manufacturer’s case, namely that a decision that
is objectively irrational is
likely to be made only rarely. Of
course, I am saying this insofar as it seems that there is much
commonality between justifiability
and rationality. One must also
bear in mind the importance of maintaining the distinction between
appeals and reviews. It must
also be borne in mind that the Act
contemplates that disputes that it requires to be referred to
arbitration are meant to be put
to an end by way of arbitration and
that the dispute resolution dispensation of the Act- which is meant
to be expeditious –
would collapse if every arbitration award
could be taken on review and set aside.”
[28] Nicholson JA
expressed himself on how he understood “rational”, in
Crown Chicken (Pty) Ltd t/a Rocklands Poultry v Kapp & others
(2002) 23 ILJ 863 (LAC
) at 868, para 19 and said-
“
By
rational I understand that the award of an arbitrator must not be
arbitrary and must have been arrived at by a reasoning process
as
opposed to conjuncture, fantasy, guesswork or hallucination. Put
differently the arbitrator must have applied his mind seriously
to
the issues at hand and reasoned his way to the conclusion. Such
conclusion must be justifiable as to the reasons given in the
sense
that it is defensible, not necessarily in every respect, but as
regards the important logical steps on the road to his order”.
[29]
The applicant submitted that the second respondent completely ignored
the evidence of the nature of the strike action when
making his
determination. It is said that in particular, the clear and
undisputed evidence before the second respondent was that
the strike,
despite being protected, was often violent and extremely destructive.
Applicant said further in fact, the nature of
the particular strike
in this instance should have served as a factor against the third
respondent, and not a factor in his favour.
It is submitted that the
second respondent, in failing to make such a determination, committed
a gross irregularity.
[30]
The attack waged against the second respondent on the nature and
proposition of the strike action is either misguided or an
attempt at
endeavouring to twist the very clear evidence presented at
arbitration. The second respondent properly examined the
behaviour of
the third respondent while he stood and knocked at the door. He dealt
with the evidence on whether the third respondent
had a mineral
bottle and if so, examined the violence which might have been
perpetrated by the third respondent and his companions.
He visited
the scene, in an inspection
in loco
and
found that only minimal damage was caused to the front door. This by
the way was the evidence of the applicant. Even when considering
that
the second door, near the garage, sustained a crack, any suggestion
that the strike was often violent and extremely destructive
is
fantasy, guesswork and baseless. In my view, the second respondent
applied his mind seriously to the issue at hand and reasoned
his way
to the conclusion.
[31]
The second respondent, having considered the evidential material
properly available before him and the probabilities of the
case,
concluded that the evidence that the front door was damaged on the
day of the incident in question, was lacking. Again, he
seriously
applied his mind to the issues at hand. Any disagreement with the
conclusion which the second respondent arrived at,
can only be
justifiable in appeal and not review proceedings.
[32]
In as much as the second respondent found that the third respondent
lied in denying being in possession of the bottle, it did
not follow
necessary that the only plausible inference to draw was that the
third respondent used the bottle to knock at the door
with it. The
second respondent again dealt with such evidence by reasoning his way
to the conclusion he reached. That I may not
agree with the
conclusion he reached, does not entitle me, in review proceedings to
review and set aside the award, only on that
basis.
[33]
It is interesting to note that the applicant has criticised the
second respondent for failing to find that the strike was often
violent and extremely destructive but is able to state that it does
not matter what the damage to the door was. The applicant went
on to
say that the third respondent acted in an aggressive and hostile
manner when refused access to the premises. In my view,
the
submissions by the applicant in this respect, have no factual basis.
It is Mr Tiller who decided to close the door on the face
of the
third respondent. In so doing, he closed a chance for himself and his
colleague to see if the third respondent did inspire
the other
employees to act unlawfully. What was then left was for the applicant
to conjecture on what was going on behind the closed
door. The second
respondent was wide awake to this and he applied his mind
appropriately to the issues at hand.
[34]
The brief submissions made on behalf of the third respondent were
that the second respondent applied his mind to the evidence
before
him. In relation to the damage to property, it was said that the
second respondent chose the direct evidence of the third
respondent
and his witnesses against the conjuncture of the applicant’s
witnesses.
[35] In relation to the
charge of threatening management, the evidence of Mr Tiller is clear
to that of Mr Pretorius. It is to the
effect that the third
respondent said that him and other employees would sleep at those
premises and would not go. Against the
background that they had come
for their salaries which were already overdue and their pay slips,
and considering the manner in
which they all arrived at the offices,
without dancing or singing, considering how they knocked and how
entry was initially refused
to the shop stewards, the words used were
indeed no threat. They were an indication of how determined they were
to pursue the issue
at hand. The words were clearly not that
management would be kept hostage in the offices. When Mr Tiller was
invited to elaborate
on the threat he said on page 10 of the
transcript-
“
Before
I closed the door, Mr Nebisi (third respondent) said that he will
sleep at the office, he won’t go home. The entire
watch has no
problem”.
[36]
Mr Tiller did not tender any other words allegedly said by the third
respondent in threatening to keep management hostage.
The second
respondent consequently reasoned properly in concluding that there
was no evidence of a threat to take any people hostage.
[37]
There being no evidence of the third respondent having behaved in an
unacceptable manner, what Kroon JA said in
County
Fair foods (Pty) Ltd v CCMA and others (1999) 20 ILJ 1701 (LAC)
in relation to the standard of conduct an employer may set for its
employees, as suggested by the applicant, has no application
in this
case.
Order:
1.
The application is dismissed with costs.
CELE
AJ
__________________
Date
of hearing : 24 November 2005
Date
of Judgment: 07 March 2006
Appearances
For
the Applicant : Mr SNYMAN
Instructed
by : SNYMAN VAN
DER HEEVER HEYNS
For
the Respondent: CHEADLE THOMPSON & HAYSOM
Instructed
by : ADV CORR