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[2007] ZALCD 3
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Edcon Ltd v Grobler and Others (D202/06) [2007] ZALCD 3 (10 August 2007)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD
IN DURBAN
CASE
NO: D 202/06
In
the matter between:
EDCON
LIMITED
APPLICANT
and
COMISSIONER
HILDA GROBLER
1
ST
RESPONDENT
COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION
2
ND
RESPONDENT
JANET
PAGE
3
RD
RESPONDENT
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
The applicant seeks an order
reviewing and setting aside an arbitration award issued by the first
respondent (the commissioner)
under case number KNDB 13948-05, dated
8 February 2006. In terms of the arbitration award, the commissioner
ordered the reinstatement
and compensation of the third respondent
(the employee).
Background
Facts
[2]
The employee who was employed as a
branch manager at the applicant’s Jet Stores in Field Street,
Durban, was charged and dismissed
for abusive language. The charge
proffered against her was formulated as follows:
“
Failure
in your duty to be obedient and show respect in that on the 26
th
July you used abusive, insulting and derogatory language when you
referred to Deshan, an employee of Coin Security, as a ‘monkey’
when speaking to his manager Yvonne Wagermaker thereby bringing the
Company’s name into disrepute.”
[3]
The incident that lead to the
dismissal occurred on the 25
th
July 2005 when the employee telephoned Mrs Yvonne Wagermaker of Coin
Security and enquired as to who “the monkey” was
who had
installed the panic buttons at the store. At that stage Coin Security
was a service provider responsible for the installation
of panic
buttons at the applicant’s workplace.
[4]
According to the applicant, Ms
Wagemaker took offence at the reference to one of her technicians
being called a “monkey”
by the employee. She reported the
incident to her senior, Mr George Kypreos, either on the same day or
the following day.
[5]
The employee did not dispute the use
of the word “monkey” with reference to the person who
installed the panic button.
She however, stated that at the time she
used the word she was stressed and concerned about the safety of the
applicant’s
employees. It is also undisputed that Ms Wagemaker
reported the incident to her manager via email nine days after the
incident.
[6]
The commissioner in her award
disagreed with the chairperson of the disciplinary hearing and found
that it was not possible to determine
how she (the chairperson)
arrived at the conclusion that the word “monkey” in that
context amounted to abusive, insulting
and derogatory language. The
commissioner also found that there was no basis to conclude that the
use of the word amounted to a
total lack of respect of the service
provider’s employee.
[7]
It is common cause that at the time,
the employee used the word; she did not know the identity of the
person who installed the panic
button in question. It is apparent
from the reading of the arbitration award that this influenced the
decision of the commissioner
in weighing whether the use of the word
could be said to amount to abuse, and lack of respect to the
unidentified employee.
[8]
The commissioner concluded that
there was no evidence that the employee was guilty of having used the
word in the manner that it
can be described as abusive, insulting and
derogatory. In this regard she found that the word was used without
malice or intention
to insult.
Grounds
for Review
[9]
The applicant based its challenge of
the arbitration award on two grounds. The first ground is that there
is no rational connection
between the evidence presented at the
hearing and the commissioner’s finding that the employee was
not guilty of the use
of abusive language. The second ground is that
the commissioner committed a gross irregularity by approaching the
arbitration proceedings
as one akin to a review of the disciplinary
hearing, and accordingly misapplied the legal principles applicable
to the arbitration
hearing.
[10]
The law is now settled as to which
test to use when considering whether or not to review an arbitration
award. The test was formulated
in a question form in
Carephone
(Pty) Ltd v Marcus N.O. and Others
(1998)
19 ILJ 1425 at 1435 paragraph 37, wherein the Court posed the
question as follows:
“
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 arrives at?”
[11]
The rationality test was recently reaffirmed by the Supreme Court of
Appeal in the case of
Rustenburg
Platinum Mines Ltd v CCMA & Others
(2006) 11 BLLR 1021
(SCA). The test for rationality is satisfied if
there is reasonable logical connection between the evidential
material properly
placed before the commissioner and his or her
decision.
[12]
The question in this matter is therefore whether there is a rational
connection between the evidence relating to the misconduct
for which
the employee was charged with and the conclusion of the commissioner
that the dismissal was unfair. The question in this
regard is not
whether the decision of the commissioner is correct, but whether it
is rational and justifiable.
[13]
The commissioner in her analysis of the evidence of Ms Wagemaker, on
whose evidence the case of the applicant was mainly based
on, took
into account her reaction and the context in which the alleged
abusive word was used. In this regard in summarising the
evidence of
Ms Wagemaker, she states:
“
Wagemaker
testified that she was ‘offended’ by the usage of the
word, and that she would have been offended regardless
of what word
(‘idiot’/’fool’ etc) was used to refer to her
technician. She conceded that she did not know
who the technician
concerned was. It appears from the evidence that neither did the
applicant know who the technician was. Wagemaker’s
e-mail makes
it clear that she also did not know why the applicant had referred to
the unknown technician as a ‘monkey’.
It is common cause
that no one thought or had understood that there was a racial
connotation to the usage of the word.”
[14] The commissioner in
arriving at the conclusion as she did assessed the alleged misconduct
in context within which the statement
was made. She in this regard
relied on John Grogan,
Dismissal (Juta & Co Lt, Lansdowne,
2002)
, wherein the learned author has the following to say:
“
While
it is expected that the workplace is not a finishing school, there
are limits to the language which employees are permitted
to use to
express their views. Swearing and invective are generally considered
to amount to misconduct, which may in certain cases
justify dismissal
even on the first occasion; This is so especially so when employees
use abusive words or phrases that impair
the dignity and
sensibilities of those against whom they are directed.”
[15]
After observing that whether language is abusive will depend, to a
certain extend on the circumstances and practice in a particular
work
place, the learned author quotes with approval the decision of the
arbitrator in the
Spinning Mills and
ACTWUSA (1998) ARB 8.13.2
where in
dealing with the issue of abusive language the arbitrator said:
“
It
is often difficult to distinguish between language used on the
shop-floor which undermine the authority of the employer and that
which is merely jocular or rude. The degree of tolerance for what is
sometimes called ‘industrial language’ varies
from one
plant to another and whether use of the same words constitutes
insubordination may differ from plant to plant and circumstances
to
circumstances.”
[15]
Whether language is abusive will depend on the circumstances of a
given case. The circumstances within which the language was
used has
to be evaluated in particular against whether the language used was
directed at a particular employee or employees. The
level of malice,
the extent of the abuse and its degree are factors that may aggravate
the offence. See PAK le Roux & Andre
van Niekerk, The South
African Law of Dismissal at 124-5.
[17]
In my view, the commissioner cannot be faulted. She correctly applied
the legal principles relating to the evaluation and assessment
of
evidence. She properly assessed and considered whether in the context
and the circumstances within which the word was used it
could be
considered abusive, and arrives at the conclusion that it was not.
[18]
As indicated earlier, the second ground upon which the commissioner’s
award was challenged, was that she approached the
proceedings as one
akin to a review.
[19] I
do not agree with the applicant that the commissioner in a sense
arrived at her conclusion through reviewing the record of
the
disciplinary hearing. The record of the disciplinary hearing was
placed before the commissioner as part of the documentation
and
accordingly constituting material properly before her.
[20]
In her analysis the commissioner contrasted and compared the evidence
which was presented in the arbitration and that which
was presented
at the disciplinary hearing. She does this with the main focus of
evaluating and assessing whether or not it could
be said that the
relationship between the employee and the applicant has irretrievably
broken down.
[21]
The above analysis is informed by the fact that this is a review and
not an appeal. It should also be pointed out that the
misapplication
of relevant legal principles is not in itself sufficient to justify
an interference with the commissioner’s
decision. See
Federated
Timbers (Pty) Ltd v Lallie N.O. & Others (1999) 20 ILJ 348 (LC)
and
Standard
Bank of SA Ltd v CCMA & Others (1998) 19 ILJ 903 (LC)
.
[22]
If it was to be found that the approach adopted by the commissioner
was incorrect, then I would submit that the misapplication
of the
legal principles, if at all, is not serious enough to justify
interference with the arbitration award.
[23]
The third ground of review concerns the finding by the commissioner
that the dismissal was not an appropriate sanction. The
applicant
contended that the commissioner committed a reviewable conduct in not
taking into account the Code of Good Practice:
Dismissal in
determining “whether the dismissal was the appropriate
sanction.” To this extent the applicant’s
case was that
the employee was already on a final written warning and therefore the
commissioner should have confirmed the dismissal.
[24]
There is authority that the discretion to determine a sanction in a
disciplinary hearing lies with the employer and not the
arbitrators.
The discretion of an arbitrator is limited to determining the
fairness of the sanction. The criterion is not whether
an arbitrator
would have imposed a different sanction or he/she did not like the
sanction imposed by the employer. The question
is whether or not the
sanction is correct, or the commissioner agrees with it. The question
is whether or the sanction is fair.
See
Rustenburg
Platinum Mines LTD (Rustenburg Section) v CCMA & others
[2006] 11 BLLR 1021(SCA).
[25]
Having determined the function of a CCMA commissioner, the SCA in the
Rustenburg Platinum Mines LTD case
followed the decision in
County
Fair Foods v CCMA
(1999)
20 ILJ 1701(LAC
) also reported at
(1999) 11 BLLR 1117
(LAC)
,
where it was held that, c
ommissioners
should not substitute their decisions
for the decision fairly exercised by the employers.
[26]
The principles discussed in both
Rustenburg
Platinum Mines
and
County
Fair (supra)
arose in the context where
the respective commissioners found the respective employee’s
guilty of misconduct and after assessing
and evaluating the
mitigating circumstances of the employee, the arbitrator deemed it
necessary to interfere with the sanction
imposed by the employers.
The sanctions were interfered with because they were in both
instances found to be unfair by the commissioners.
The decisions of
the arbitrators were set aside on both appeals.
[27]
The issue of whether the sanction was appropriate does not, in my
view, arise where a commissioner or an arbitrator
finds
that the reasons for the dismissal was substantive unfairness. The
finding that the dismissal was substantively unfair concludes
the
inquiry and the commissioner or the arbitrator may either reinstate,
or re-employ or award of compensation in terms of s193
of the LRA.
[28]
In the present case the commissioner found on the bases of the
evidence before her that the employee was not guilty of misconduct
of
using abusive, insulting and derogatory language. In essence this
finding amounts to nothing but a finding that the dismissal
was
substantively unfair. It was for this reason that she ordered the
reinstatement and compensation of the employee.
[29]
The commissioner also dealt with the appropriateness of the sanction
which in my view was not necessary. However, I do not
belief that
this approach by the commissioner would justify interference with the
arbitration award. This approach does not have
a material bearing on
the logical connection between the reasoning and the outcome of the
arbitration award. In fact even if this
portion of the award was to
be excised, the award would still be above reproach. In other
words with or without this portion
of the arbitration award dealing
with the issue of the sanction, the arbitration award would still
retain its rationality and justifiability.
[30] I
see no reason why the costs should not follow the result. It follows
from the above that the applicant has not made out a
case for the
relief sought and in the premises the application is dismissed with
costs.
____________
MOLAHLEHI
J
DATE
OF HEARING :
18
MAY 2007
DATE
OF JUDGMENT :
10 AUGUST
2007
APPEARANCES
For
the Applicant : M Alexander of Deneys Reitz
Inc
For
the Respondent: B Purdon of Brett Purdon Attorneys