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[2008] ZALCCT 11
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Morkel NO obo Houdamond Trust v Commission for Conciliation Mediation And Others (C39/07) [2008] ZALCCT 11 (6 November 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NUMBER: C397/07
In
the matter between:
MORKEL
NO, DIRK CLOETE obo THE HOUDAMOND
TRUST Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First
Respondent
BHANA
NO
Second
Respondent
BEUKES,
WERNER
Third
Respondent
JUDGEMENT
NGALWANA
AJ
Introduction
[1]
This is an application for the review and setting aside of an
arbitration award made by the second respondent on 28 June 2007
under
case number WE2786/07 and under the auspices of the first respondent.
[2]
The second respondent found that the third respondent’s
dismissal on 28 February 2007 had been “
substantively
unfair
” and ordered payment of
compensation in the sum of R23 100 by 31 July 2007.
[3] The applicant now
seeks to have the award of the second respondent set aside on the
ground that it is unreasonable. This
charge is founded on the
following factors:
[3.1]
the third respondent threatened and intimidated a superior with a
stick in front of fellow employees;
3.2]
the second respondent ignored a range of relevant factors;
[3.3]
the award is predicated on a charge that was never preferred against
the third respondent – assault.
[4]
But what are the facts underpinning the second respondent’s
decision which the applicant says is unreasonable?
The
Facts
[5]
The third respondent worked at the Belevue Estate wine farm as a
driver and store man earning a monthly salary of R3300.
He had
been working there for 17 years when he was dismissed on 28 February
2007 after he had been found guilty at a disciplinary
hearing on
charges of undermining authority and intimidation. He did not
attend the disciplinary hearing which was held in
his absence on 28
February 2007.
[6]
Notice of the disciplinary hearing given to him on 26 February 2007
(which he tore up and threw in a dust bin) advised him that
the
charges to be preferred against him were undermining authority
(“
ondermyning van gesag
”)
and threat to assault (“
dreigement
to aanranding
”). However,
in his evidence-in-chief Mr Morkel, the chief director at the farm,
confirmed that the third respondent
had been dismissed for
“
intimidasie en ondermyning van
gesag
”. According to the
applicant’s disciplinary code both infractions carry a sanction
of summary dismissal on a
first offence.
[7]
The following events gave rise to the dismissal. On 26 February
2007 Anneke Potgieter told Kritzinger about what she termed
the third
respondent’s suspicious behaviour (“verdag”).
Kritzinger then saw the third respondent carrying
a bunch of grapes
and placing it on the dashboard of his car. He was doing this
right in front of Kritzinger, the chief wine-maker,
who was senior in
rank to the third respondent (Kritzinger said in his
evidence-in-chief, “
hy het toe een
takkie haneppot druiwe by die aflaaibak gaan haal en voor my daarmee
verby geloop
”).
[8]
Because he did not want to confront the third respondent about the
suspicious behaviour, Kritzinger waited until the third respondent
had returned to work and then searched his car. He says he
discovered about 20 bunches of grapes in the third respondent’s
boot. The third respondent and his witnesses denied this.
That employees are generally at liberty to take grapes from
the farm
for their own consumption is not in dispute.
[9]
Kritzinger then telephoned Morkel to enquire whether he had given the
third respondent permission to take grapes. Morkel
said he had
not but that he would take the matter up with the third respondent
himself. He asked Kritzinger not to take the
matter any further
with the third respondent.
[10]
Kritzinger then left the farm for about two hours to buy enzymes at
Killarney Gardens. On his return, the third respondent
confronted him for searching his car in his absence without his
permission. The third respondent was very angry (Kritzinger
says he was “
buiten homself van
woede
” on several occasions in
his evidence).
[11]
A heated exchange of words ensued between the two and the third
respondent turned around and walked away from Kritzinger towards
his
car. Kritzinger followed him. The third respondent picked
up a stick and persisted in asking Kritzinger why he
had searched his
car in his absence and without his permission. Kritzinger says
the third respondent prodded and tapped him
in his chest, his body
and on the shoulders with this stick in front of other employees thus
lowering his esteem in their eyes.
The third respondent and his
witnesses deny this.
[12]
Under cross-examination Kritzinger advanced as the reason for not
asking the third respondent to open his boot so that he could
search
it that he wanted to avoid a confrontation as he could see the third
respondent was beside himself with rage or anger (“
woede
”).
[13]
When asked by the second respondent why he followed the third
respondent to his car if he wanted to avoid a confrontation with
him,
Kritzinger said he wanted to explain to the third respondent in
private his reason for searching his car.
[14]
The third respondent reported to Morkel what he considered to be an
unlawful search of his car by Kritzinger and sought disciplinary
measures to be taken against Kritzinger. Morkel considered such
action against Kritzinger to be unjustified. Instead
he gave
the third respondent notice of a disciplinary hearing on charges of
undermining authority (presumably Kritzinger) and threatening
to
assault Kritzinger. The latter charge later became
intimidation.
[15]
The third respondent tore the notice up and threw it in the dust
bin. He did not attend the hearing at which he was found
guilty. Morkel then dismissed him for intimidation and
undermining authority.
The
Standard
[16]
Section 145 of the Labour Relations Act, 66 of 1995 (“the LRA”)
on which the applicant relies for this review application
requires
that he proves one of four grounds of review. These are
misconduct on the second respondent’s part in relation
to his
duties as an arbitrator; gross irregularity in the conduct of
arbitration proceedings;
ultra vires
conduct by the second respondent in the exercise of his powers and an
improper obtaining of the award.
[17]
On a
conspectus
of all the cases, however, it seems to me the permissible grounds of
review are wider than those set out in section 145 of the
LRA and can
perhaps be reduced to this: for the applicant to succeed the decision
must be shown to be irrational (in the sense
that it does not accord
with the reasoning on which it is premised or the reasoning is so
flawed as to elicit a sense of incredulity)
and unjustifiable in
relation to the reasons given for it (
Crown
Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp NO
(2002)
23
ILJ
863
(LAC) at paragraph [19];
Shoprite
Checkers (Pty) Ltd v Ramdaw NO and Others
(2001)
22
ILJ
1603
(LAC) at paragraph [26];
Carephone (Pty)
Ltd v Marcus NO and Others
(1998) 19
ILJ
1425
(LAC) at paragraph [37];
Pharmaceutical
Manufacturers’ Association of SA and Others: In re Ex Parte
Application of the President of the RSA and Others
[2000] ZACC 1
;
2000
(3) BCLR 241
(CC)). It is not the reviewing court’s task
to consider whether or not the decision is correct in law as that
would
be an appeal (
Minister of Justice
and Another v Bosch NO and Others
(2006)
27
ILJ
166
(LC) at paragraph [29]).
[18]
More recently, the Constitutional Court has pronounced that “the
better approach” is to enquire whether the decision
reached by
the commissioner is one that a reasonable decision-maker (presumably
faced with the same evidence) would not reach (
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007)
28 ILJ 2405 (CC), at paragraph [110]).
[19]
In my respectful view the “constitutional standard” now
propounded by the Constitutional Court in
Sidumo
bears a striking resemblance to the test usually applied in
applications for leave to appeal, the only difference being the
substitution
of “a reasonable decision-maker” for the
higher court or another court. The danger is thus the blurring
of the
line between an appeal on the merits on the one hand, and a
review based on the rationality and justifiability of the decision
when regard is had to the evidence advanced on the other. It is
hoped that the reasonableness standard now introduced by the
Constitutional Court will in future be tightened to ensure there is
no confusion as regards the extent to which reasonableness
of the
commissioner’s decision may be tested.
[20]
It seems to me the proper approach is to ask not whether the
commissioner’s decision is one that a reasonable court (or
reasonable decision-maker) could not reach but rather whether, in
light of the evidence advanced and having due regard to
considerations
of equity (after all, the Labour Court is primarily an
equity court), the commissioner’s decision is one that can
properly
be said to be reasonable. Thus phrased, the standard
avoids a review enquiry that leads inexorably to entanglements in
appeal
territory.
[21]
This in my respectful view is not an exercise in substituting this
court’s own standard for that of the Constitutional
Court.
It is rather, I make bold to say, an attempt at giving the
constitutional standard a construction that eschews the
blurring of
the line between reviews and appeals.
Applying
the Standard
[22]
On an objective assessment of all the evidence presented before the
second respondent I am unable to fault his decision as
being
unreasonable. In the Constitutional Court’s turn of
phrase, this is not a decision that in my view a reasonable
decision-maker could not reach.
[23] It seems to me
Kritzinger was riled by a farm worker who is a “store man”
and a driver screaming at him, in his
first name, in front of other
farm workers of similar low rank. He felt embarrassed by it.
Nowhere is this evinced
more poignantly than in his evidence-in-chief
when he said:
“
Normaalweg
het hy vir my aangespreek altyd as meneer, en baie vriendelik en
alles, en in die geval het hy absoluut op my geskree
jy en jou en
Wilhelm en super-aggressief. (sic)”
[24]
In my view this does not constitute the undermining of authority,
especially in circumstances where the employee’s superior
invades the employee’s privacy without reasonable
justification. Kritzinger could not advance a plausible
explanation
as regards why he did not ask the third respondent to
open his boot so that he could search it in his presence. The
explanation
that he sought to avoid a confrontation with the third
respondent is immediately rendered implausible by his following the
third
respondent to his car while the third respondent was, in
Kritzinger’s own evidence, beside himself with rage.
[25]
What Kritzinger did in this case was at least disrespectful and, more
accurately, an unjustified infringement of the third
respondent’s
right to privacy. A superior position in employment does not
confer on one a right willy-nilly to rummage
through the possessions
of those who are lower in rank. Kritzinger testified that the
third respondent walked past him with
the grapes that ultimately
triggered the confrontation (“
hy
het . . . voor my daarmee verby geloop
”).
Why did he not ask him then to open his boot so that he could search
it? The event that gave rise to the third
respondent’s
rage had not yet arisen at that stage, and could very well have been
averted if Kritzinger had simply asked
the third respondent to open
his boot instead of assuming authority simply to rummage through the
third respondent’s property.
[26]
The second respondent’s decision was in these circumstances
eminently reasonable. The evidence of intimidation,
such as it
was, was unsatisfactory. Even the applicant’s
representative was alive to this and sought to introduce into
evidence, irregularly, a polygraph test report to “prove”
that the applicant’s witnesses were telling the truth.
[27]
The evidence of intimidation was unsatisfactory for another reason.
While Kritzinger said he had been prodded, stabbed
(“
steek
”)
and tapped (“
tik
”,
not of the inebriating variety) with a stick in his stomach, body,
neck, shoulders and chest his witnesses said, variously,
that he was
tapped on his shoulders (“
Hy het
hom getik, tik op sy skouers
”),
that he was not seriously tapped (“
Nee,
dit was nie baie hard gewees toe hy hom getik het nie
”)
and that he was pressed around the stomach and shoulders (“
hierso
in die maag rond gedruk en teen die skouer gedruk
”).
Moreover, none of the witnesses could hear what words were
exchanged between the third respondent and Kritzinger.
On that
evidence, it cannot be said that the second respondent’s
decision that there was no intimidation was one which a
reasonable
decision-maker, on the same evidence, could not reach.
[28] The applicant says
the second respondent ignored a range of relevant factors.
Among these he counts
[28.1]
the fact that Kritzinger had confronted the third respondent over the
theft of grapes thus looking
after the best interests of the
applicant. Theft was not even raised as an issue before the
second respondent and so it is
unclear why it should have been a
relevant factor for him to consider at all.
[28.2]
Kritzinger’s seniority and authority over the third
respondent. It is not clear why this
should give Kritzinger the
license to rummage through the third respondent’s property
without permission. It does not
and the second respondent was
with respect quite reasonable in not according this factor more
weight than he did.
[28.3]
Kritzinger’s evidence that employees started ridiculing him a
few days after the incident of
26 February 2007, and that the
confrontation took place in front of other employees. By this,
the applicant seems to suggest
this demonstrates that the third
respondent had set a precedent for continuing insubordination or
undermining of authority.
In my view this factor is relevant
only to show what happens when a superior pulls rank improperly.
It should serve more
as a lesson to Morkel and Kritzinger than reason
to discipline employees.
[28.4]
the fact that the confrontation was planned. There is no
evidence of this on record.
[28.5]
the fact that the third respondent did not “raise a
grievance”. This is not borne
out by the evidence.
In Morkel’s own evidence he said the third respondent sought to
have Kritzinger disciplined for
rummaging through his car without
permission but that he (Morkel) considered that unjustified.
[28.6]
the fact that the polygraph test results were intended to corroborate
the applicant’s witnesses’
evidence, and that there was
no need for the witnesses themselves to testify to it. The
applicant misses the point.
He presented no evidence on the
authenticity and veracity of the results and so it would have been
impossible for the third respondent
to test its veracity.
Nevertheless, the document forms part of the record. There is
no indication in the award that
the second respondent rejected the
document. Instead, he drew an adverse inference from its
introduction. That in my
respectful view was not an
unreasonable thing to do in these circumstances.
[28.7]
the fact that the third respondent refused to attend the disciplinary
hearing and tore up the charge
sheet. This in my view is more a
sign of frustration with management than intimidation or undermining
authority. The
context is that this happened shortly after
Morkel, the owner, had refused to discipline Kritzinger for what was
in effect an unjustified
infringement of the third respondent’s
right to privacy. Instead he sought to discipline the third
respondent in circumstances
where the third respondent considered it
was he who had been wronged.
[28.8]
the fact that the third respondent admitted to taking the law into
his own hands. On a holistic
consideration of the facts in this
case, this hardly justifies a different decision by a reasonable
decision-maker.
[29]
There are numerous other factors which the applicant says should have
been considered by the second respondent. They
do not warrant
any mention or consideration. While there is no evidence that
they were indeed never considered, the second
respondent would in my
view have been justified and reasonable in rejecting them. For
example, the applicant says one factor
that should have been
considered is that the third respondent should have given evidence
first before his witnesses and his not
doing so was a relevant
factor. There is no merit in this and other similar
submissions.
[30] The applicant also
claims that the award is predicated on a charge that was never
preferred against the third respondent, namely,
assault. Much
of the applicant’s case appears to be rooted in this edifice.
It is unstable. The second
respondent pointed out clearly as
follows in his award:
“
It
is also important to note that the [third respondent] was not charged
with assault and the [applicant’s] witnesses testified
to what
would be defined as assault. The [third respondent] was instead
charged with intimidation and undermining authority,
but none of the
[applicant’s] evidence showed how the [third respondent] was
possibly guilty of these alleged offences.
I am not convinced
that by questioning someone who had searched his vehicle without
permission, the [third respondent] was guilty
of intimidation or
undermining authority.”
[31]
On the basis of this clear language, a submission that the second
respondent’s finding is premised on the charge of assault
is
clearly without any merit. The second respondent’s
decision in this regard was also eminently reasonable.
Relief
[32]
In these circumstances, the application cannot succeed.
Costs
[33]
In his answering affidavit the third respondent asked for costs.
In argument, Mr Faber sought costs of two attorneys
and for him costs
on a scale of senior counsel. I am not aware of any such scale
or rate in general terms. Senior counsel
vary in the rates they
charge, and the fee parameters issued by the constituent Bars from
time to time serve simply as a guide
(more so to some than to others,
it must be said).
[34]
It would thus be inappropriate to grant the costs order sought by Mr
Faber at the rate he seeks.
[35]
Mr Stelzner opposed the costs order sought by Mr Faber on the basis
that both Mr Faber and Mr Steenkamp appear pro bono in
this matter
and so have no basis for claiming costs. I am inclined to
agree. Costs are incurred by the litigant and
not the legal
representatives. When the litigant secures legal counsel on a
pro bono basis he thereby incurs no costs in
prosecuting his claim.
[36]
This is not to discourage legal practitioners from accepting pro bono
cases. Counsel acting in such matters ought in
my view to be
satisfied, and indeed derive some pride, in the knowledge that they
have contributed in assisting a person who would
otherwise not have
afforded their services in these days of unaffordable legal services
for the vast majority of South Africans.
With any luck,
judicial gratitude should be an icing on their cake. After all,
theirs is primarily a profession and only
secondarily (if at all) a
business.
[37]
In the result, each party is to pay its own costs.
____________________
Ngalwana
AJ
Appearances
For
the applicants:
Mr R G L Stelzner
Instructed
by:
Basson Blackburn Inc
For
the 3
rd
respondent: Mr
P Faber and Mr A Steenkamp
Instructed
by:
Edward Nathan Sonnenbergs
Date
of hearing:
29
October 2008
Date
of judgment:
06 November 2008