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[2008] ZALCD 10
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Swartland Boudienste (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (D369/07) [2008] ZALCD 10 (1 July 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE
NO : D369/07
In
the matter between:
SWARTLAND
BOUDIENSTE (PTY) LTD
APPLICANT
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
FIRST RESPONDENT
LOUIS
EPSTEEN N.O
SECOND RESPONDENT
DEUANLALL
RAMBRIDGE
THIRD RESPONDENT
JUDGMENT
1 July 2008
PILLEMER,
AJ
This matter comes on review from the CCMA.
The applicant is the employer, the third respondent the employee and
the second
respondent the CCMA Commissioner whose award is being
challenged. The employee challenged the fairness of his
dismissal and
the matter was referred for arbitration before the
second respondent. Second Respondent found the dismissal to be
substantively
and procedurally unfair and awarded reinstatement.
The
evidence in the CCMA ran some two days and has been transcribed.
I have studied the transcript. In essence the dispute
concerned
allegations that the third respondent had behaved improperly on the
factory floor and in particular had been racist and
abusive in his
dealings with employees that were subservient to him within the
hierarchy of the business operation. The third
respondent had a
chequered history, there had been allegations of misconduct on his
part in the past. There was evidence, even
from a witness that he
himself had called, that he apparently did not speak in a way that
was regarded generally as being acceptable
to that particular
witness. He said on two occasions he had spoken to him in a way
that was unacceptable and not in a way
that he would speak to anyone
else.
The
thrust of the complaint really is the derogatory language and that he
referred to people in racist and derogatory terms.
There was
certainly evidence of this in the evidence led by the main
complainant and the protagonist in the case, a Mr Mtshali.
The
third respondent disputed the contentions against him and he led
evidence from others who worked on the factory floor to say
that they
had never seen anything of the kind that was alleged to be occurring
all the time.
The
main protagonists namely Mtshali and another witness who testified,
by the name of Jali, both had in the past had difficulties
with the
third respondent. The evidence established that they may well
have been antagonistic towards him because of the
manner in which he
had dealt with their family members who had been employed. In
the one case he had been responsible for
the dismissal of Mtshali’s
brother who was dismissed for theft. In another instance Third
Respondent had apparently
been found guilty of sexual harassment, but
was then found not guilty on an internal appeal. There were
reasonable grounds
for suspecting that the two witnesses who were
related to the complainant in that case may have had issues arising
out of the ultimate
outcome and in relation to him.
The
Commissioner was also faced with evidence dealing with how the
disciplinary inquiry was handled. He dealt in his award
with
procedural matters that troubled him. He found that the
chairperson was not sufficiently independent to chair the hearing.
He had been consulted by the person who was prosecuting in regard to
the charges and the chairperson had in fact drawn the charge
sheet up
himself. There were other procedural features such as the time given
to prepare and the vagueness of the charges which
the Commissioner
found did not afford him the sufficient opportunity to prepare
properly for the hearing.
In
arguing the matter today, Mr Conradie referred me to passages in the
record which indicated that an internal appeal had been
heard, that
witnesses had testified at that internal appeal and that that the
third respondent begrudgingly conceded that that
appeal process had
been fair. This according to the argument presented by Mr
Conradie went some considerable way towards
ameliorating any
unfairness that had arisen at the original disciplinary hearing and
it was contended that the arbitrator had misdirected
himself in not
taking these factors into account when he made his finding that the
dismissal was procedurally unfair.
In
relation to the substantive fairness of the dismissal Mr Conradie
argued that the arbitrator had adopted an approach that did
not
properly deal with the evidence of Mtshali and Jali who had indicated
that there were occasions when the third respondent had
been abusive
towards them and uttered, in the case of Mtshali, racially offensive
epithets. It was argued that the Commissioner
misdirected
himself when he dealt with the matter in paragraph 40 of his award.
This is what he said,
“
Dealing
with the substantive fairness of the dismissal I believe that the
evidence against the applicant was anecdotal and was too
general in
nature to
substantiate
his dismissal, no reference was made to any specific incidents.
Indicative of this is the evidence of Mtshali
who claimed that the
applicant addressed workers in a derogatory manner without citing any
specific instances in which this took
place. The same applies
to the evidence of Jali which was also very generalised and
unspecific. It is possible that
both Mtshali and Jali were
antagonistic towards the applicant because of the incidents involving
their relations [I assume he means
relatives] and this may have
influenced them in lodging complaints against the applicant.”
It was argued by Mr
Conradie that this approach constituted a serious enough misdirection
to enable him to satisfy the stringent
the test set out in the
Constitutional Court case of
Sidumo v Rustenburg Platinum Mines
[2008] 2 BCLR 159
(CC). The test is set out in paragraph [110]
of the judgment and is expressed in this question,
“
Is
the decision reached by the Commissioner one that a reasonable
decision-maker could not reach?”
The effect of Mr
Conradie’s argument was that the decision could not have been
reached by a reasonable Commissioner because
the evidence that was
given did not support that conclusion as there was sufficient
evidence of detail for it not to be termed
anecdotal.
As
I read the award, what the Commissioner was saying was that the
manner in which the allegations were presented in evidence was
very
general. In my assessment the record bears him out. On
top of that the persons making the allegations potentially
had an axe
to grind and he therefore had to take that into account when
assessing the evidence as a whole. The Commissioner
points this
out in paragraph 42 of his award where he says this,
“
On
the other hand three witnesses gave evidence on behalf of the
applicant to the effect they have never witnessed him behaving
badly
towards other workers and this included Kasavlu Naidoo who was
clearly a reluctant witness having been subpoenaed by
the applicant.
Deena Naidoo who gave evidence on behalf of the respondent also
testified he had never witnessed bad behaviour
on the part of the
applicant towards other workers.”
In essence the
Commissioner found that the evidence against the applicant was
unreliable and, seen in context, could not be accepted
as discharging
the
onus
of proving that he was guilty of the misconduct
alleged. And on that basis he came to the conclusion that the
dismissal was
substantively unfair.
It
seems to me that the approach he adopted is an approach that could
properly be adopted by an arbitrator and he has provided his
reasoning in his award. It was reasoning based on the material
before him and in my assessment it cannot be said that his
conclusion
was one that a reasonable decision-maker could not reach.
In
those circumstances the test laid down by
Sidumo
has in my view not been met in relation
to the question of substantive fairness in this review. That is
the decisive issue
because it is on that basis that the reinstatement
order that is challenged was granted. The review therefore
cannot succeed
and the application is in consequence dismissed with
costs.
_____________________
M PILLEMER
ACTING JUDGE OF THE
LABOUR COURT
Date:
APPEARANCES
For
the Applicant:
Bradley Conradie-Edward
Nathan Sonnenbergs
For
the Respondent:
Kevin Dass-Farrell and
Associates
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBA
CASE
NO
:
D369/07
DATE
:
1 JULY 2008
In
the matter between
SWARTLAND
BOUDIENSTE PTY
LTD
APPLICANT
and
CCMA
1
st
RESPONDENT
LOUIS
EPSTEEN
NO
2
ND
RESPONDENT
DEUANLALL
RAMBRIDGE
3
RD
RESPONDENT
BEFORE
THE HONOURABLE MR JUSTICE PILLEMER
ON
BEHALF OF APPLICANT
:
[?]
ON
BEHALF OF RESPONDENT
:
[?]
EXTRACT
JUDGMENT DELIVERED ON
1 JULY 2008
CONTRACTOR
Sneller
Recordings (Pty) Ltd. Durban – 103 Hofmeyr Road –
Westville 3630
Tel
031 2665452 – Fax 031 2665459
CERTIFICATE
OF VERACITY
This
is, to the best abilities of the transcriber, a true and correct
transcript of the proceedings,
where audible
, recorded by
means of a mechanical recorder in the matter:
SWARTLAND
BOUDIENSTE PTY LTD v CCMA
LOUIS
EPSTEEN AND DEUANLALL RAMBRIDGE
CASE
NO
:
D369/07
COURT
OF ORIGIN
:
DURBAN
TRANSCRIBER
:
MRS S M BOYCE
DATE
COMPLETED
:
31 JULY 2008
NO
OF TAPES
:
CD
NO
OF PAGES
:
7
CONTRACTOR
Sneller
Recordings (Pty) Ltd. Durban – 103 Hofmeyr Road –
Westville 3630
Tel
031 2665452 – Fax 031 2665459