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[2006] ZALCJHB 7
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Ross Poultry Breeders (Pty) Ltd v Van Dijk and Others (JR1270/03) [2006] ZALCJHB 7 (31 May 2006)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE
NUMBER: JR 1270/03
In
the matter between:
Ross
Poultry Breeders
(Proprietary)
Limited
Applicant
and
Jan
van Dijk
First
Respondent
Commission
for Conciliation,
Mediation
and Arbitration
Second
Respondent
Kobus
Louw N.O
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 13 June 2003 issued by the third
respondent while he was acting under the auspices of the
second
respondent. The first respondent in whose favour the award was issued
opposed the application.
Background
facts
[2]
The first respondent commenced employment with the applicant some
time in 1991 as a Technical Advisor. The applicant conducted
business
as a breeder of poultry parent stock for the broiler industry.
[3]
On 26 November 2001 the applicant dismissed one Mr Schultz, its
Hatchery Manager on various grounds of misconduct. The first
respondent had represented Mr Schultz in that disciplinary hearing.
On the same day, Mr Schultz was granted access to the company
premises at the hatchery in order to download personal information
which he had stored in a computer which had been allocated to
him.
The first respondent accompanied Mr Schultz and was present when Mr
Schultz downloaded information from the computer which
had been
placed for him at the reception area. He was not allowed in the
Hatchery. He downloaded the information into 5 stiffy-discs
which he
was given by the staff which worked there. Mr Schultz then procured a
written statement from one Mr Mayisa, an employee
of the applicant,
who was present at the reception area. The first respondent and Mr
Schultz then left with Mr Schultz taking 5
stiffies and a statement.
[4]
The applicant had suspicion that the information downloaded by Mr
Schultz was not personal but that it contained sensitive company
information. This was later verified and the stiffies were returned
whereafter Mr Schultz was charged with a criminal offence of
theft.
This incident also led to the first respondent being charged by the
applicant with gross and deliberate acts of misconduct,
summarised
as:
“
1)
Intimidation of a subordinate to make a statement.
2) Abuse of his position
in the company.
3)
Dishonesty relating to his true reason why
he accompanied Doug Schultz to the Hatchery.
4)
His refusal and / or failure to ensure the
confidentiality or safety of company information.
5)
His participation in a fraudulent scheme to
remove company property without authority.
6)
His attempt to discredit and undermine the
authority of the Company Management.
7)
His failure and or refusal to act and
conduct himself in a manner expected and required of a reasonable and
professional Manager.
8)
The irrevocable breach of the trust and
good faith relationship.
9)
Conflict of interest between the
Company and the applicant.”
[5]
The disciplinary enquiry continued against him on 24 December 2001
after which he was found guilty of all the charges. A sanction
of
dismissal was imposed but an alternative sanction was offered to him.
The alternative,
inter alia
,
entailed:
Ø
Loss of leave equivalent to the number of
days of the employee’s suspension, which commenced on 29
November 2001.
Ø
Demotion with 6% loss of pay and benefits
and to be placed in a Trainee Technical Advisor position for 6
months.
Ø
A 12 months’ final written warning
Ø
A written apology.
[6]
The first respondent accepted, in writing, the alternative sanction.
He however lodged an appeal against the finding of the
hearing. The
applicant felt that the first respondent was reneging on the
agreement which had been reached and it gave the first
respondent an
ultimatum within which to withdraw the appeal or run the risk of a
dismissal being confirmed at the appeal. The first
respondent stood
by the appeal which he had lodged. He was not successful and was
dismissed. The decision to dismiss him aggrieved
him and a dispute
then arose between him and the applicant.
[7]
The first respondent referred the dismissal dispute to the second
respondent for conciliation. The dispute was not capable of
resolution and a certificate of outcome was issued on 13 March 2002.
He then referred the dispute to arbitration, the hearing of
which was
before the third respondent.
[8]
The applicant proceeded with its case by calling its two witnesses.
The applicant’s representative then addressed the
third
respondent by submitting that the real dispute they were supposed to
be dealing with was one of constructive dismissal. The
first
respondent’s representative opposed the submission. A
point
in limine
was thus being raised by the
applicant calling upon the third respondent to determine whether it
was the applicant or the first
respondent who terminated the services
of the first respondent. The applicant was however not alleging that
the third respondent
had no jurisdiction to arbitrate the dispute.
The third respondent found that the applicant, through the first
respondents’
non-acceptance of the alternative offered,
terminated the first respondent’s services and that it was
upheld in an appeal
hearing on 14 January 2002. He found further that
the second respondent had jurisdiction to hear the matter and he
ruled that the
arbitration hearing was to continue. After the ruling
had been communicated to the parties, the arbitration hearing was
rescheduled
and it finally proceeded before him. On 13 June 2003 he
issued an award in which he found the dismissal of the first
respondent
to have been substantively and procedurally unfair and he
ordered the applicant to compensate the first respondent. It is that
finding which the applicant seeks to have reviewed and set aside.
Arbitration
hearing
[9]
Mr Redpath was the first witness to be called by the applicant. His
evidence was that:
·
He was appointed by the Managing Director
of the applicant to chair the internal disciplinary hearing, at that
time he was the Operations
Manager of the applicant but had then
become the Managing Director.
·
The hearing was scheduled for 29 November
2001 but it was postponed to 4 December 2001 whereafter it was
postponed to 20 December
2001 and to 24 December 2001.
·
In all of these dates a chance was being
given to the first respondent to get representation.
·
It was company rules that an employee be
represented by a colleague in a disciplinary enquiry. Representation
by a person from outside
was not allowed.
·
He agreed that the third respondent tried
in vein to get representation from three colleagues.
·
He admitted a letter which was shown to
him, dated 12 December 2001 stating that the hearing of 20 December
2001 was to proceed
since the first respondent had been accommodated
in finding a replacement to represent him.
·
Mr Redpath further recognised another
letter dated 14 December 2001, written by the first respondent who
was asking the company
to provide him with representation. In the
alternative he asked to be allowed to appoint a representation from
outside, in the
special circumstances of his case as three colleagues
had already turned him down for fear of being victimised by the
company.
·
He contacted a consultant Mr Van der Berg,
usually used by the company who, at his request, drew a letter as a
response to that
of the first respondent, to decline representation
suggested by the first respondent.
·
He found it to have been quite normal to
have discussed with Mr Van der Berg even as he well knew that Mr Van
der Berg had formulated
the charges against the first respondent.
·
The initiator had told Mr Van der Berg
everything allegedly done by the first respondent whereafter Mr Van
der Berg was to put all
of it in to legal terms, in formulating the
charge, to make sure that they cover every thing.
·
He confirmed that the hearing of 20
December 2001 was postponed at his instance as he could not attend
it. He agreed that when the
hearing started on 24 December 2001, the
first respondent was not granted another postponement after he had
asked for it in order
to get a representative.
·
The hearing was commenced by him reading
the company code to explain the rights of the first respondent. Mr
Mariott, a Breeding
Manager, would then have explained the charges in
detail for the first respondent, as the initiator.
[10]
Mr Redpath then stated the evidence which had been given to him
during the disciplinary hearing. That is the evidence that
has been
outlined as background facts hereto and need not be repeated. He
continued to testify that:
·
After the dismissal of Mr Schultz, Mr
Bopape was appointed as the Acting Manager of the Hatchery. While Mr
Bopape was present in
the hatchery, during the downloading of
information, his evidence given to Mr Redpath was that he was unable
to see what was downloaded
but his concern was satisfied by the
presence of the first respondent, as senior personnel.
·
Mr Schultz had requested Mr Bopape to take
a statement from one Mr Mayisa, but Mr Bopape refused, stating that
the permission was
granted to download information.
·
Mr Schultz was then said to have given a
note book to the first respondent to use in taking the statement from
Mr Mayisa. Mr Schultz
and the first respondent then left.
·
The downloading incident was reported to
the Managing Director who in turn discussed it with the first
respondent.
·
The first respondent went to Mr Schultz to
get the stiffy discs back.
·
The disks contained all information
relating to the company pedigree lines, the performance of various
pedigree lines in terms of
hatchability and fertility.
·
There were test results relating to certain
disease situation.
[11]
Mr Redpath continued to testify as follows:
·
The company business was increasingly
becoming competitive.
·
Information like one in the disks could be
used out of context and be shown to potential customers of the
competition with the perception
created of pending poor performance.
·
The outcome of the hearing was a finding of
guilt to all the charges whereafter the first respondent was
dismissed but was given
an alternative sanction.
·
He admitted taking part in a discussion of
the alternative sanction with Mr Gericke who was the immediate
superior of the first
respondent.
·
The first respondent initially accepted the
alternative sanction and handed in a letter of apology as required of
him.
·
The company then received a notice of
appeal from the first respondent, against the decision of the
disciplinary hearing.
·
The company, in response, issued a letter
wherein the first respondent was given an option of either being
dismissed and to proceed
with the appeal or to withdraw the appeal.
The appeal was not withdrawn and the first respondent proceeded with
the appeal which
he lost and was dismissed.
·
Mr Mauldenhauver, a Financial Manger,
presided in the appeal. He had been initially approached by the first
respondent and agreed
to represent him but later declined.
[12]
Mr Mariott was the next to testify with his evidence being to the
following effect:
·
He was aware that Mr Schultz had been
granted permission to go to and download information from a computer
he had used before his
dismissal.
·
He had a discussion with the first
respondent who had come to his office and learnt that the first
respondent would accompany Mr
Schultz.
·
He advised the first respondent that Mr
Schultz was not to get into the hatchery.
·
He then telephoned Mr Bopape to inform him
that Mr Schultz was coming to download information and had been
granted permission. He
told Mr Bopape to put the computer at the
reception area for Mr Schultz.
·
He did not deem it necessary to accompany
Mr Schultz as the first respondent, being senior personnel, said he
would.
·
Later on that day, Mr Mayisa called him and
reported that he had been asked by Schultz to sign a statement
relating to chick boxes
that were transported.
·
He investigated the matter and established
that 4 or 5 stiffy discs had been used to download which to him was
unusual for the downloading
of personal information.
·
The matter was then reported to the
Managing Director who in turn, discussed it with the first
respondent.
·
Most of the information contained in the
discs was confidential company information and would have been put on
26 November 2001
as that was the date showing on them. He conceded
that the date might relate to the last day on which a stiffy was
opened.
·
He did not know whether there was
information on the discs at the time they were handed over to Mr
Schultz. He admitted that the
discs belonged to the company and
therefore that it was possible that they had company information when
they were given to Mr Schultz.
·
He discussed the case further with the
Managing Director and a decision was taken to charge the first
respondent.
·
He had a discussion with Mr van der berg
and asked him to draw up the charges. He also discussed the charges
with Mr Redpath before
the hearing.
·
He is the one who served the first
respondent with a notice for a disciplinary hearing.
·
After the disciplinary hearing, but before
the outcome, he did attend a meeting to discuss an alternative
sanction. Also present
in that meeting were Mr Gericke and Mr
Redpath. The first respondent was not present.
[13] The first respondent
also testified and his version was that:
·
He asked some colleagues to represent him
at the hearing but they later declined and these included Ms
Henderson and Mr Ahmed. Mr
Ahmed worked under Mr Mariott.
·
He asked for more information from the
company to explain the charges but that was not given to him. When
the hearing commenced,
he had not been given enough time to prepare.
·
He did accompany Mr Schultz to the hatchery
to retrieve some information from the computer. No one had instructed
him what information
Mr Schultz was to obtain.
·
He did not work at the hatchery with Mr
Schultz but had an idea of the kind of work they did.
·
Once they were at the reception area, Mr
Bopape put the computer on the window to make it accessible to Mr
Schultz and gave used
stiffies to Mr Schultz. He did not know what
information was in those stiffies.
·
He went to sit on a chair on the right side
near the door as Mr Schultz downloaded information. He trusted that
only personal information
would be taken. In any event, no
instructions were given to him to watch what information was being
retrieved.
·
Mr Schultz did ask Mr Mayisa some questions
and a statement was drawn which Mr Mayisa signed freely. It seemed
that Mr Schultz wanted
to reopen his case against the company and
needed that statement from Mr Mayisa.
·
The first time he came to know there was
something wrong, was when the Managing Director called him. When the
nature of the concern
had been explained to him, out of his own
volition, he went to Mr Schultz, retrieved the stiffies and he handed
them back to the
company. He was being honest to the company.
·
He knew that Mr Schultz had a computer in
his house and would down load information from work to it. He also
knew that the company
opened a criminal case against Mr Schultz but
prosecution was declined.
·
He felt that he was honest as no
instructions has been given to him to watch the type of information
retrieved by Mr Schultz and
it was never his intention to act
dishonestly against the company.
[14] That, in brief,
concluded the evidence led at the arbitration hearing.
The
arbitration award
Procedural
fairness
[15]
The third respondent found that the first respondent was not afforded
the right to be represented by a non-employee such as
a union
official. He also found that the chairman was not impartial, having
colluded with the initiator. He concluded that dismissal
was
procedurally unfair.
Substantive
fairness
[16]
The third respondent noted that nobody had told the first respondent
what information Mr Schultz was allowed to download. He
noted further
that Mr Schultz had been allowed to take company information home. He
noted further that no password had been installed
on the computer. He
said that he was not convinced that the information on the stiffies
had become confidential.
[17]
The third respondent said that, according to the company code, none
of the offences charged was a dismissal offence. He found
that there
was not enough evidence on which he could find the first respondent
guilty. He further found that the first application
had not
contravened any rule in the workplace. He concluded that dismissal
was substantively unfair.
[18]
He awarded 6 months compensation for procedural unfairness and 6
months compensation for substantive unfairness.
Grounds
for review
[19]
There are three grounds on which the award is assailed, namely;
(i)
it is not legally justifiable,
(ii)
the commission exceeded his powers and
(iii)
the commissioner committed a gross
irregularity.
Analysis
[20] Section 145 (1) and
(12) of the Act reads:
“
145
Review of arbitration awards
(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”.
[21]
When dealing with the standard of review the decision in
Carephone
(Pty) Ltd v Marcus N.O and others (1998) 19 ILJ 1425 (LAC)
provides an appropriate guidance and a test to be followed. I need to
refer to paragraph 31 of the judgment which reads:
“
[31]
The peg on which the extended scope of review has been hung is the
constitutional provision that administrative action must
be
justifiable in relation to the reasons given for it
(s 33
and
23
(b)
of schedule 6 to the constitution). The provision introduces a
requirement of rationality in the merit or outcome of the
administrative
decision. This goes beyond mere procedural impropriety
as a ground for review, or irrationality only as evidence of
procedural
impropriety. But it would be wrong to read into this
section an attempt to abolish the distinction between review and
appeal.”
[22]
In determining whether the award is justifiable, the test set was
couched in the following terms:
“…
is
there a rational objective basis justifying the connection made by
the administrative decision maker between the material properly
available to him and the conclusion he or she eventually arrived at”
[23]
When, on the other hand, an award is attacked on gross irregularity,
the decision in the case of
Goldfields
Investment (Pty) Ltd and another v City Council of Johannesburg and
another 1938 (TPD)
at 560 has, over
years, provided an informative approach. Part of the often cited
paragraph reads:
“
The
law, as stated in Ellis Morgan (supra) has been accepted in
subsequent cases, and the passage which has been quoted from that
case shows that it is not merely high-handed or arbitrary conduct
which is described as a gross irregularity; behaviour which is
perfectly well-intentioned and bona fide, though mistaken, may come
under that description. The crucial question is whether it
prevented
a fair trial of the issues. If it did prevent a fair trial of the
issues then it will amount to a gross irregularity.”
[24]
With that in mind, I now approach the submissions made by the parties
in the consideration of this application. There are five
instances by
means of which the applicant attacks the award.
1.
Procedural fairness
[25]
The applicant attacked the finding that the first respondent was not
accorded his right to be represented by a union, in accordance
with
the Act (“the Code of Good Practice”). The applicant
submitted that the first respondent at no stage requested
to be
represented by a union official. The first respondent’s
submission was that he did ask, in writing, to be allowed outside
representation as three of his colleagues had suddenly declined to
represent him. Outside representation was, in my view, inclusive
of
representation by a union official. The company was well aware of the
predicament in which the first respondent found himself.
It was
common cause that each of the three employees who initially agreed to
represent him, declined out of fear that the company
might dismiss
them as well. The first respondent had just represented Mr Schultz
who had just been dismissed. The applicant, in
these circumstances
should have used the company code only as a guide and should
consequently have preferred the procedure provided
by the Act. Legal
representation is a very essential right to procedure which finds
authority from the Act. To decline an employee
the exercise of such
right merely because of the company code and because the employee
might be possessed of the necessary skills
to represent himself, is
in these circumstances unjust. The first respondent had the right to
representation by a person who was
not involved in the issues or
dispute, to bring in objectivity, when it was required. The third
respondent was able to see the
issues for what they were and, in my
view, his decision, in this respect is quite justifiable.
2.
Bias of the chairperson of the
disciplinary enquiry
[26]
The third respondent found that Mr Redpath was not an impartial
chairman. In his own evidence, Mr Redpath admitted that he
spoke to
Mr Mariott about the charge. As correctly cited by the third
respondent, in discussing with Mr van der Berg, Mr Redpath
did say
that they wanted to make sure that they covered everything. The third
respondent therefore reflected the evidence which
was adduced before
him and the record supports him. In identifying this aspect of
evidence, he therefore did not commit any gross
irregularity as
alleged by the applicant. For the chairperson of the enquiry to make
sure that they covered everything of the charges
against the first
respondent, who was to appear before him, suggests that he was not
treating the parties before him even handedly.
As correctly submitted
by the first respondent, the chairperson should, at the very least,
be impartial and disinterested in the
outcome of the hearing. I would
have no quarrel with the chairperson seeking legal advice for his
role as a chairperson and nothing
more. The question of how the
charges were to be drafted should have been left only to Mr Mariott,
as the initiator. Mr Redpath
allowed himself to be part of a meeting
with Mr Mariott and Mr Gericke to decide the fate of the first
respondent, in his absence.
That was not a hall mark of the
impartial chairperson, the result thereof notwithstanding. I find the
decision of the third
respondent in this respect, justifiable.
3.
Sufficiency of evidence.
[27]
The applicant submitted that there was a duty to exercise reasonable
care towards the employer, more so as a senior employee.
The
difficulty with the submission made by the applicant is that, it is
the applicant which chose to charge the first respondent
with
“
gross
and deliberate”
acts of misconduct.
It excluded any negligent acts of misconduct. The evidence of the
first respondent was never disputed namely
that he was never
instructed to watch the information collected by Mr Schultz and that
he sat next to the door such that he could
not see, like Mr Bopape,
what information was being downloaded. I would however not agree that
Mr Schultz could still be entitled
to take the company information
away as his status had then changed. He had been dismissed and was
accordingly not entitled to
such information. The first problem with
the case of the applicant is that it failed to prove that Mr Schultz
did download company
information. Mr Mariott conceded that the
information could very well have been in the stiffies when Mr Bopape
gave them to Mr
Schultz. The second problem lay in the absence of the
instruction, as a safety valve, to control that which Mr Schultz
could retrieve.
The third was the failure of the company, as already
indicated, to charge the first respondent with acts of negligence, in
the
absence of gross and deliberate acts on his part. The third
respondent was quite alive to these shortcomings. In my view, his
award
is unassailable due to being sound and justifiable.
4.
Exceeding powers in awarding
compensation
[28]
The applicant contends that the third respondent exceeded his powers
by awarding a separate compensatory amount for procedural
and
substantive unfairness. The submission by the first respondent is
that section 194 of the Act, as amended, has created a discretion
which allows the arbitrator to award compensation that is just and
equitable in all circumstances where the dismissal is substantively
or procedurally unfair or both. He submitted that the arbitrator in
no way exceeded his powers and that nothing prevented him from
setting out separate amounts as he did. The applicant has failed to
show in what manner the separate quanta of compensation for
procedural and substantive unfairness amounts to exceeding the powers
of an arbitrator. As correctly pointed out, in my view, by
the first
respondent, the third respondent has such discretion. He did not
exceed the limitation imposed by section 194 of the
Act. Exceeding
simply means that the award is one which the commissioner did not
have the power to make – see
Le
Roux v CCMA & others
(2000) 6 BLLR 680
(LC) at para 15.
[29]
There was not a shred of evidence against the first respondent, yet
the applicant wanted to make sure it covered everything
in this
matter. The applicant declined to give the first respondent a listen
ear when he called out for help, just so as to have
a fair hearing.
The first respondent lost what was, at that time, to him, a valuable
job. The compensation awarded to him was therefore
in no way
excessive or unwarranted.
5.
Recognition on the alternative
sanction.
[30]
The applicant submitted that the first respondent reneged on the
agreement to accept an alternative dismissal. That conduct,
it was
submitted, ought to have been taken into account by the third
respondent in determining the appropriate compensation to
be awarded.
This approach fails to take into account the fact that the first
respondent protested his innocence through the hearing.
Even in the
letter he wrote to tender in his apology, he still pleaded his
innocence and an absence of any intention to act dishonestly
against
the company. For the same reasons as stated in the previous
circumstance, I find the award justifiable and devoid of any
defect
as envisaged in section 145 of the Act.
[31]
I accordingly make the following order:
The
application is dismissed with costs.
CELE
AJ
__________________
DATE
OF HEARING :
22 NOVEMBER 2005
DATE
OF JUDGMENT :
31
MAY 2006
APPEARANCES
FOR
THE APPLICANT
:
MR M VON AS (ADVOCATE)
INSTRUCTED
BY
:
WEBBER WENZEL BOWENS
FOR
THE RESPONDENT
: MR
W
SAIIMAN (ADVOCATE)
INSTRUCTED
BY :
BOUWE WIERSMA ATTORNEYS