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[2008] ZALCD 15
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Nampack Corrugated Containers (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (D863/06) [2008] ZALCD 15 (21 July 2008)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
no: D863-06
In
the matter between:
NAMPACK
CORRUGATED CONTAINERS (PTY)
LTD
Applicant
And
COMMISSION
FOR CONCILIATION,
MEDIATION AND
ARBITRATION
1
ST
Respondent
LISTER SULLIVAN NO.
2
ND
Respondent
GORDON TIMOTHY
3
RD
Respondent
JUDGMENT
Molahlehi
J.
Introduction
[1]
This is an application in terms of which
the applicant seeks an order reviewing and to setting aside the
arbitration award issued
by the second respondent (the commissioner)
under case number KNDB7209-06 dated 17
TH
November 2006. In terms of this award the dismissal of the third
respondent was found to be unfair and the applicant directed to
reinstate and compensate him.
[2]
The application was opposed by the third
respondent. The reasons for the order I made on 5
th
June 2008 reviewing and setting aside the award are set out below.
The
background facts
[3]
The third respondent was prior to his
dismissal employed by the applicant in its waste department. The
applicant is a manufacturer
and distributor of corrugated containers.
The dismissal of the third respondent arose from three charges
relating to misconduct
in that he misrepresented himself as an
attorney acting on behalf of the applicant, threatening to take legal
action against a
firm of attorneys on behalf of the applicant and its
employee if the firm of attorneys did not furnish him with the
information
he demanded from it and bringning the name of the
applicant into disrepute.
[4]
The misrepresentation as an attorney acting
on behalf of the applicant and its employees occurred during January
2006, when the
third respondent telephonically contacted Chaplin and
Hathorn attorneys (the attorneys), on behalf of Mr Basil Bhekokwake
Luthuli,
a fellow employee who needed information regarding the
balance on a garnishee order which the attorneys had obtained against
him
(Mr Luthuli) on behalf of one of the client. The telephone
conversation was with Ms Valarie Brisley of the attorneys.
[5]
In her testimony Ms Brisley testified that
at the time of the call the caller identified himself as "Gordon
Timothy, an attorney”
retained by the applicant on behalf of
its employees to investigate the garnishee orders. According to her
it became apparent during
the conversation that the third respondent
did not understand the fundamental principles relating to garnishee
orders. She became
suspicious as in her experience attorneys are
generally well versed in the workings of garnishee orders.
[6]
During the telephone conversation Ms
Brisley enquired from the third respondent as to which law firm he
was working for. The third
respondent informed her as indicated
earlier that he was from a firm of attorneys known as "Timothy
and Associates."
According to her the third respondent became
abrasive and argumentative when she was unable to provide him with
the requested immediately
which information related to the
outstanding balance of the garnishee against Mr Luthuli. Ms Brisley
took his telephone number
and undertook to revert back to him as soon
as she had found the information he was looking for.
[7]
As promised, Ms Brisley called the third
respondent back only to discover that the telephone number he
furnished to her was that
of the applicant but nevertheless requested
to be put through to him. The call was put through to the third
respondent who was
immediately on picking up the call challenged by
Ms Brisley as to why he misrepresented himself as an attorney.
According to her
the third respondent did not own up to his wrong
doing but instead became again argumentative and abrasive.
[8]
Ms Brisley reported the incident to her
superior and in turn it was reported to Mr Joel Sibanda, who was the
responsible manager
of the third respondent at the applicant’s
work place. Mr Sibanda requested that the complaint be reduced to
writing. The
written complaint is contained in two letters from the
attorneys to the applicant for attention Mr Sibanda.The relevant
parts of
the first letter dated 30
th
March 2006 read bas follows:
“
Re:MR
GORDON TIMOTHY
The telephone of even
date refers.
Please be advised, the
abovementioned employee of NAMPAK has been calling our office and
impersonating himself as an attorneyof
NAMPAK.
Kindly note, he has
been very rude to members of our staff that he has contacted and has
even threatened to take matters to court
on behalf of Nampak.
We
confirm that this is a matter of seriousness as we intend to inform
the Law Society of this crime, if your company takes no action
against him.”
The
contents of the second letter dated 5 April 2006 from the attorneys
to the applicant is in essence the same as those of the
above.
[9]
Having received the written complaint laid
against the third respondent regarding his misrepresentation, Mr
Sibanda instituted a
disciplinary enquiry which resulted in the
dismissal of the third respondent.
[10]
Mr Sibanda testified during the arbitration
hearing that he had learnt that the third respondent had from time to
time given legal
advice to other employees of the applicant, and this
was of great concern to him because this exposed the applicant to the
risk
of being vicariously liable for any incorrect legal advice which
may be given by the third respondent. He also testified that the
third respondent was studying for an LLB degree, for which studies
the applicant was paying for. In relation to the charges which
were
proffered against the third respondent, Mr Sibande testified that the
incident had brought the applicant into disrepute insofar
as the
attorneys were concerned.
[11]
The third respondent denied ever phoning
Ms Bresley and that the first time he heard about the telephone
call was when he
was suspended. He did not dispute having approached
by Mr Luthuli for assistance regarding a balance of an amount he
(Luthuli)
was owing to a third party. According to the third
respondent Mr Luthuli had requested him to contact on his behalf
Bradlows and
enquire about the outstanding balance. The lady he spoke
to at Bradlows undertook to get the statement of the remaining
balance
in the account of Mr Luthuli. He also during cross
examination conceded having represented employees and given them
advice on labour
law. The third respondent also denied that the
applicant was paying for his LLB studies but stated that the
applicant did pay for
his Bcom studies.
Grounds
of review and the award.
[12]
The applicant contended that the
commissioner committed a gross irregularity or exceeded his powers as
an arbitrator. In its heads
of argument the applicant submitted that
the decision of the commissioner is one which a reasonable
decision-maker could not have
reached in the circumstances of this
case. The applicant in particular criticised as being unreasonable
the finding of the commissioner
that the sanction of dismissal was
too harsh.
[13]
In arriving at his conclusion the
commissioner reasoned that the third respondent did not act
“
wilfully
”
and had no intention of bringing the name of the applicant into
disrepute. The commissioner found that the third respondent
in
representing himself as an attorney retained by the applicant to
represent employees;”
merely
intended to obtain the balance of a debt from attorneys who had not
provided this to a colleaque of his.”
The motive of the third respondent for doing what he did according to
the commissioner was “
to use the
weight of the company,”
to
achieve the objective of assisting his fellow employee. And in
relation to the appropriateness of the sanction the commissioner
reasoned that it was too harsh and based on the following factors:
“
1.
The applicant has had a 12 years of service with the respondent.
2.The respondent
suffered little if any prejudice.
3. The applicant’s
action was motivated by to help another employee of the respondent to
obtain knowledge he was entitled
to.
4The actions had
absolutely no impact on the employment relationship. This was evident
by the company taking two months
to institute action against
the applicant.
In respect to the
applicant misrepresenting himself as an attorney there was no
dishonesty relating to his employment.”
Evaluation
of the award
[14]
The test to apply in evaluating whether
or not to interfere with decisions or rulings of CCMA commissioner is
that of a reasonable
decision-maker as enunciated by the
Constitutional Court in the case of in
Sidumo
v Rustenburg Platimum Mines Ltd and others
(2007)
12 BLLR 2405
(CC)
. The test entails
conducting an enquiry into whether the decision of the commissioner
is one which a reasonable decision –maker
could not have
reached. In other words the decision of the commissioner would be
reasonable and immune from interference by the
Court if it is one
which a reasonable decision-maker could have reached. The function of
the Court in this regard is not to determine
the correctness of the
decision but its reasonableness.
[15]
In
Edcon
Limited v Pillemar N.O. & Others (unreported DA4/06
)
the court held:
“
The
court’s function primarily is to ensure that decision made by
arbitrators exercising their functions under the Labour
Relations Act
fall within the bounds of reasonableness.”
[16]
The key inquiry in the application of the
reasonable decision-maker test is whether the factual conclusions
reached by the commissioner
in the award is reasonable in the light
of the evidence before him or her. Thus, an award would be
unreasonable if it is found
that there is a glaring discrepancy
between the evidence presented and the conclusion reached by the
commissioner. In other
words an award would be unreasonable if
the commissioner completely misconstrued the evidence before him or
her.
[17]
In the present instance, my view is that
the award of the commissioner is unreasonable because the
commissioner failed to properly
evaluate and take into account the
totality of the evidence which was placed before him. The
commissioner misconstrued the principles
applicable to the assessment
of the evaluation of the fairness of the sanction.
[18]
Another important aspect in the assessment
of the reasonableness of the award is the fact that the commissioner
for some unknown
reason failed to take into account in his assessment
of the appropriateness of the sanction the fact that the third
respondent
was also charged and found guilty on two other charges,
namely that of misrepresenting himself to be an attorney acting on
behalf
of the applicant and threatening to take legal action on
behalf of the applicant in the event information he required was not
furnished
to him.
[19]
The conduct of the third respondent was in
contravention of s83 (1) of the Attorneys Act 53 of 19979. This
conduct did not only
constitute a criminal offence, committed by a
person studying law who should have known that that conduct would
also place the
applicant at risk. It is this risk which the
commissioner ought to have taken into account in assessing the impact
of the
conduct on the relationship between the parties.
[20]
The evidence before the commissioner
evidently shows that the third respondent was guilty of placing the
name of the applicant in
disrepute by projecting himself as an
attorney retained by the applicant and furnishing the telephone
number of the applicant in
this regard. The applicant’s
disciplinary code specifically makes it an offence to wilfully bring
the name of the applicant
in disrepute.
[21]
The evidence further shows that the first
telephone conversation between the third respondent and Ms Brisley
was not a cordial
one. Despite this the third respondent proceeded to
provide the applicant’s telephone number as his contact number.
The second
telephone call between the third respondent and Ms Bresley
was also not harmonious.
[22]
It is clear from this evidence that the
third respondent was deliberate and resolved in what he was doing.
The second telephone
call provided him with an opportunity to retract
and correct his misrepresentation. This attitude persisted throughout
including
during the disciplinary and arbitration hearings. In
essence the third respondent showed no remorse to the wrong he had
committed.
In this regard the commissioner found that the third
respondent “
behaved badly and was
not honest at the arbitration”
hearing.
[23]
In my view the prejudice that the applicant
suffered is that its reputation was in the eyes of the attorneys
tarnished by the conduct
of the employee. I have already indicated
that the attorneys had threatened reporting the matter to those in
authority. The conduct
of the employee was aggravated by the fact
that this was not only in breach of the workplace rule but also in
all probabilities
a criminal offence. It seems to me that the purpose
of this ruled is not only to protect the integrity of an employer in
general
but specifically its business and good-will. It is therefore
reasonable for an employer to impose a rule which demands that its
employees should not engage in conduct which will undermine its
integrity and more importantly offend customers and members of
the
public.
[24]
It is therefore unreasonable for the
commissioner to have concluded that the dismissal was too harsh a
sanction. This is not a decision
a reasonable decision-maker could
have reached in the circumstances of this case. In the circumstances
of this case ought the commissioner
to have taken into account that
the third respondent did not show remorse and therefore the dismissal
as imposed by the applicant
was a fair sanction.
[25]
It was on the basis of the above reasons
that I concluded that the award stand to be reviewed.
[26]
The issue of costs of this
application was not dealt with in the order issued on the 5
th
June 2008. This is an obvious error as the applicant did pray for
costs in its notice of motion. The order below has been varied
in
terms of
s165
of the
Labour Relations Act 66 of 1995
to include the
issue of costs. The dictates of law and fairness do not however call
for costs to be issued in this case.
Order
In the premises I issued
the following order:
1.
The arbitration award issued under case
number KNDB 7209-06 is reviewed and set aside. The award is
substituted by the following
award:
“
The
dismissal of the applicant, Gordon Timothy was both substantively and
procedurally fair.”.
2.
There is no order as to costs.
_______________
Molahlehi
J
Date
of Hearing: 05 June 2008
Date
of Judgment: 21 July 2008
Appearances
For
the Plaintiff: Adv Michael Van As
Instructed
by: Cliffe Dekker Inc
For
the Respondent: Mr R B Donachie (Attorney)
Instructed
by :Henwood Britter & Caney Attorneys