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[2008] ZALCJHB 14
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New Clicks SA (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (JR1333/05) [2008] ZALCJHB 14 (27 February 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA HELD IN JOHANNESBURG
CASE
NO: JR 1333\05
In
the matter between:
NEW
CLICKS SA (PTY)
LIMITED Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION First
Respondent
ZOLISWA
TSHETSHE Second
Respondent
SOUTH
AFRICAN COMMERCIAL
CATERING
AND ALLIED WORKERS
UNION Third
Respondent
JERRY
SHAI AND
OTHERS Fourth
to Eight Respondents
JUDGMENT
MOSHOANA
AJ
Introduction
[1]
This is an application brought in terms of
section 145
of the
Labour
Relations Act, 66 of 1995
as amended.
Background
facts
[2]
The individual respondents were employed by the applicant in the
receiving department. On or about 10 March
2004 at or about 11H30,
two pallets, each consisting of forty boxes, were delivered to the
applicant. At or around 15H00 of the
same day, one Sithole Khumalo
discovered a shortage of eight boxes in the course of conducting an
audit in the receiving department.
[3]
A physical search was conducted and an inventory count was conducted.
None of that revealed the missing boxes.
The applicant obtained
statements from eight employees in the receiving department. Each of
those employees, including the dismissed
respondents gave account of
what happened.
[4]
The applicant also obtained statements from some security guards. The
applicant called upon all the eight
employees in the receiving
department to undergo polygraph tests. Two employees agreed to
undergo the test. The dismissed respondents
refused to do so. The two
employees who underwent the test passed it. The dismissed respondents
were then charged with gross misconduct
and dismissed.
[5]
Aggrieved by their dismissal, dismissed respondents through their
union referred a dispute of unfair dismissal
to the first respondent.
The first respondent, then appointed the second respondent to
arbitrate the dispute. On or about 03 May
2005, the second respondent
issued an award, and found that on the balance of probabilities, the
applicant has failed to discharge
the onus to prove that the
employees were dismissed for a fair reason relating to conduct. The
first respondent then ordered reinstatement
with back pay.
Aggrieved
by the award, the applicant brought this application.
The
challenge
[6]
Without necessarily abandoning the other grounds raised in the papers
and the heads of argument, Mr Watt-pringle
SC for the applicant
persued three grounds namely:
1.
The award is not reasonable.
2.
The remedy of reinstatement was inappropriate, regard
being had to the
provisions of
section 193
(2) (b) of the LRA.
3.
Absence of the record.
The
grounds considered
[7]
I shall in turn consider each of the three grounds persued by Mr
Watt-pringle SC at the hearing of this application.
Is
the award reasonable?
The
short answer to this is that it is reasonable. There is absolutely no
merit in the submission by Mr Watt-pringle SC that a reasonable
commissioner would not have issued the award. Having looked at the
award again when this judgment is being prepared, I find it
to be a
reasoned award, to a point of saying it is correct in all respect
though I am not required to go that far.
See:
Palaborwa Mining Co Ltd v Cheetham & Others
(2008) JOL 2130I
(LAC)
.
Sidumo
v Rustenburg Platinum Mines (2007) 28 ILJ 2405 (CC)
.
Fidelity
Cash Management Service v CCMA and Others DA 10\05 yet unreported
.
Appropriateness
of the remedy of reinstatement
Mr
Watt-pringle SC argued that, once the second respondent determined
that the dismissal was unfair, she sought to have applied
her mind to
the question whether reinstatement is appropriate given the fact that
the applicant did not trust the dismissed respondents.
He pegged his
submission on the provisions of
section 193
(2) (b) of the LRA.
The
section provides thus:
193
(2) The Labour Court or the arbitrator must require the employer to
reinstate or re-employ the employee unless—
(a)
…
(b)
the circumstances surrounding the dismissal are such that a continued
employment relationship would be intolerable.
(c)
…
(d)
…
[8]
As a point of departure the section recognises that reinstatement is
a primary remedy.
See:
SAA v Bogopa & Others 2007 (8) ILJ 2718 (LAC)
at
2714 para 65
.
SAAPAWU
Free State & Others v Fourie & Another
(2007) 1 BLLR 67
(LC)
.
Kroukam
v SA Airlink (Pty) LTD
2005 12 BLLR 1172
(LAC)
.
Amalgamated
Pharmaceuticals LTD v Grobler NO & Others
(2004) 6 BLLR 537
(LC)
.
[9]
In Mr Watt-pringle’s submission, the fact that the applicant’s
witnesses testified that the dismissed
employees were not to be
trusted is such circumstances contemplated in
section 193
(2) (b)
which would render continued employment intolerable. That being the
case, so the argument went, then the second respondent
was precluded
by operation of law to reinstate.
[10]
I do not agree. In all circumstances of dismissals for alleged
misconduct, employers more often than not would immediately
loose
trust on a dismissed employee. In my view such trust is lost the
minute an employee is brought before a disciplinary inquiry.
So if
section 193
(2) (b) were to be interpreted to mean that because at
one point, the employer has had a strong suspicion that an employee
is guilty
of misconduct then such renders continued employment
intolerable, then the primary remedy will never be afforded to an
employee
dismissed for misconduct.
[11]
In my view, the section must be interpreted to mean that evidence
need to be led to substantiate the fact that continued
employment
would be intolerable. Such may include but not limited to evidence of
a fall out between the dismissed employee which
is caused by a factor
independent of the allegations of misconduct or closely connected to
the misconduct alleged.
[12]
This must be so, in that once a commissioner finds that the
misconduct alleged has not been proven, then the cause of
intolerability would be naturally removed. However, if an employer
leads evidence to suggest that despite the finding of misconduct
there exists circumstances and not allegations that would render
continued employment intolerable.
[13]
Again care must be exercised by employers to leave it for the
commissioner as it is argued in this matter to phantom
that the
continued relationship would be rendered intolerable. It is the duty
of an employer to present evidence that will suggest
that the
continued employment will be intolerable.
[14]
Another situation would be where a commissioner finds that a
misconduct has been committed and such a misconduct does
not warrant
dismissal, but there was evidence that the said misconduct serious as
it may not be had rendered continued employment
intolerable.
[15]
Therefore in such situations, a commissioner may justify refusing the
primary remedy by taking into consideration such
circumstances as
supported by evidence. Of course given the fact that reinstatement is
a primary remedy, the commissioners should
sparingly and after
careful consideration of all circumstances invoke the provisions of
section 193
(2) (b) of the LRA, to deny the remedy.
[16]
Otherwise, commissioners might find themselves in the situation that
prevailed pre-
Sidumo
,
if too much weight is given to the circumstances.
[17]
All in all, I am saying for
section 193
(2) (b) to defeat the primary
remedy, there must be convincing reasons for such. Accordingly, this
court should not readily review
the decision of commissioners to not
have refused reinstatement when there is some evidence by the
employer that the employee is
not to be trusted anymore.
[18]
On the contrary, a decision to refuse the primary remedy is
reviewable if no cogent reason supported by evidence is given
for it.
Such in my view would be an unreasonable award.
[19]
In fact the LAC in
Kroukam
said, therefore this court or an arbitrator has no discretion whether
or not to grant reinstatement. Faced with such true statement
of law,
I cannot see how the refusal to reinstate could have been justified.
[20]
Such similar argument was rejected by this court in
Amalgamated
Pharmaceuticals
supra
. At para 13 of the judgment the
following was said:
“
The
mere fact that the applicant does not trust the individual
respondents cannot without, more, be a basis for holding that
employment
relationship has broken down’… To punish the
individual respondents with unemployment, even if this is accompanied
with some compensation, without finding them guilty of any wrongdoing
is grossly unfair”
.
[21]
I must add to deny individual employees job security albeit with
capped compensation, offends the very basic principle
upon which the
right to fair labour practice is founded. Accordingly, this ground
must fail too.
Absence
of the record
[22]
It does appear that there is a growing trend that absence of the
record is used opportunistically to have awards reviewed.
See:
Uee—Dantex Explosives (Pty) LTD v Maseko & Others
2001 (7)
BLLR 842
(LC)
.
[23]
In the matter before me there seem to be a dispute between the
parties that the record is incomplete. The respondents
submitted that
the missing portions were adequately reconstructed by the typed notes
of the second respondent. The applicant without
suggesting that any
of its grounds are germane from the missing records argued that the
typed notes are cryptic and for that reason
the record is incomplete
and therefore the award should be reviewed and set aside on that
ground.
[24]
It ought to be emphasised that in
Uee—Dantex
matter the commissioner failed to keep a record. The court there said
in appropriate cases, which was one before it, an award is
reviewable
on that ground alone.
[25]
In the matter before me, there are records which the applicant
laboriously relied on portions thereof to substantiate
its grounds of
review. The commissioner filed written notes for the missing portions
of the record. Therefore the respondent cannot
be accused of failing
to keep proper records. It ought to be emphasised, in instances where
the court adopted the approach to review
and remit due to incomplete
record, such were cases where a reviewing party would have been
severely prejudiced to show the defect
as the record is not there. In
such cases, the reviewing party is given the benefit of the doubt as
it were.
[26]
But where a reviewing party like the applicant before me was able to
demonstrate its grounds on portions of the records
available, such a
party is not prejudiced and should not gain advantage simply because
certain portions not germane to its grounds
are missing.
[27]
All in all, I am saying, it will not always be the case that where
the record is incomplete then review should be granted
simply
because, an attempt to reconstruct took place and the record is still
inadequate though no reliance would be placed on the
inadequate
portions of the record. If it were so then gates would be open to
unscrupulous review litigants much to the changrin
of other
litigants, in instances like this poor employees who have a perfectly
reasonable and valid award.
Accordingly
this ground must fail. As for the remaining grounds, foreshadowed in
the founding affidavit and the heads of argument,
such lacks merit.
They too must fail.
Order
[28]
In the result, I make the following order:
1.
The review application is dismissed with
costs.
_________________
Moshoana
AJ
Acting
Judge of the Labour Court
Johannesburg
Appearances
For
the Applicant : Mr
Murray
For
the Respondent : Union official
Date
of hearing
: 22 February 2008
Date
of Judgment : 27 February 2008