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[2007] ZALCD 11
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Nampak Products Ltd v Stilwell and Others (D765/05) [2007] ZALCD 11 (17 October 2007)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
OF
INTEREST
CASE
NO
: D
765/05
In
the matter between
NAMPAK
PRODUCTS
LIMITED
Applicant
and
COMMISSIONER
PATRICK
STILWELL
1
st
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
2
nd
Respondent
C
MARION
3
rd
Respondent
SOUTH
AFRICAN TYPOGRAPHICAL
UNION
4
th
Respondent
JUDGMENT
PILLAY
D, J
[1]
It is not always manifest from arbitration awards precisely what
factors commissioners take into account when they decide cases.
Hence
it is important for a party who seeks to review an award to stipulate
quite clearly what the grounds of review are and where
the
commissioner failed in his duty to give a rational and justifiable
decision and one free of any irregularity.
[2]
When the commissioner is not informed precisely of what the
criticisms against his award are, then he cannot respond and the
Court is left in the dark as to whether the criticisms are valid.
This observation is particularly true when commissioners
are
criticised for not applying their minds to some or other material
before them.
[3]
In this case, the applicant employer pleaded that the commissioner
failed to show due deference to the employer’s decision
to
dismiss the employee and took into account mitigating factors, some
of which were not well-founded.
[4]
Since the pleadings and the heads of argument were filed, the legal
position has changed. The pleadings were drawn on
the strength
of the Supreme Court of Appeal’s decision in
Rustenburg
Platinum Mines Ltd (Rustenburg Section) v CCMA and Others
[2000] 11 BLLR 1021 (SCA). Since that decision, the
Constitutional Court, under unreported case No CCT85/06, has reversed
the decision of the Supreme Court of Appeal. Of significance in
this case is the Constitutional Court’s decision that
the test
for fairness is not deference to an employer’s decision.
[5]
The Constitutional Court’s decision has weakened the employer’s
grounds of review in this case to such an extent
that Mr I
Pillay
,
who appeared for the employer, argued from the Bar a new complaint
against the award. He submitted that the award is reviewable
because the commissioner failed to take into account the purpose of
the rule that prohibited pornography. The purpose was
to limit
the risk to the employer’s computer technology system and to
protect its reputation, he submitted.
[6]
This is a material allegation, and to require this Court to hold that
the commissioner did not apply his mind to it, places
on the employer
an obligation to plead that proposition so that the commissioner can
accept or refute it.
[7]
In the absence of any allegation in the pleadings to that effect, the
applicant must be barred from raising it in these proceedings
from
the Bar.
[8]
In any event, assuming that the commissioner did not take the
employer’s policy into account, the Court is in a position
to
consider the policy to determine whether the penalty imposed is
appropriate for the offence for which he was charged.
The
penalty imposed by the commissioner was to deprive the employee of
about five months’ remuneration.
[9]
The employer was in a position to impose such a penalty at the time
of the disciplinary inquiry as the employee tendered to
work for a
period of time without pay. Such a penalty could only be
imposed with the consent of the employee. As that
offer
included a tender of the employee’s services, it would also
have been as, if not more, onerous to the employee than
the award of
the commissioner.
[10]
As Mr
Bingham
for the third respondent employee pointed out, the chairperson of the
disciplinary inquiry, as representative of the employer,
was also in
a quandary as to whether he should, on the one hand, strictly
maintain the policy and the standards in the workplace
or, on the
other hand, take into account mitigating factors. Misconduct
arising from the distribution of pornography raises
for any
adjudicator difficult questions of morality, dignity, ethics,
privacy, reputation and risk.
[11]
The Court is of the view that the appropriate penalty is one that
deprived the employee of some amount of his remuneration.
As
this is a review and not an appeal, the amount determined by the
commissioner is reasonable and represents a fair balance of
the
respective interests of the parties.
[12]
In all the circumstances, the nature of the offence is not one that
goes to the root of the relationship of trust between the
parties, it
is a relationship that can be resurrected, and with the high cost
that the employee has had to bear, not only in terms
of sacrificing
his remuneration, but incurring the costs of litigation and the
stress of it, he will no doubt be slow to transgress
in a similar way
again.
[13] The application for
review is dismissed with costs.
-
- - - - - - - - - - - - - - - - - - - - - - -
________________________
[Signed]
PILLAY D, J
JUDGE
OF THE LABOUR COURT
DATE
OF JUDGMENT
: 17 OCTOBER
2007
APPEARANCES
ON
BEHALF OF THE
APPLICANT
:
MR I PILLAY
ON
BEHALF OF THE 3
RD
RESPONDENT
:
MR BINGHAM