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[2008] ZALCD 12
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Arangie v Commission for Conciliation Mediation And Arbitration and Others (D483/06) [2008] ZALCD 12 (18 December 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
Case No: D483/06
REPORTABLE
In
the matter between:
DOUGLAS
ARANGIE
Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First
Respondent
COMMISSIONER
I MADONDO N.O.
Second Respondent
ABERDARE
CABLES
Third Respondent
JUDGMENT
MOSHOANA,
AJ:
INTRODUCTION
[1]
This is an application brought in terms of Section 145 of the Labour
Relations Act, seeking an order that the award issued by
the Second
Respondent be reviewed and set aside. The application was opposed by
the Third Respondent. The Applicant, upon receipt
of an Opposing
Affidavit, deposed by one Erica Da Silva, raised a point
in
limine
to the effect that her affidavit
should be ignored by the court as it amounts to hearsay evidence and
does not meet the requirements
in terms of the Evidence Amendment Act
45 of 1988, in particular Section 3 thereof. In court, when the
matter was argued, it appeared
that this point was not persisted
with. Advocate Seggie appearing for the Applicant; made no
submissions in relation to this point.
I assumed that the point has
been correctly jettisoned. Even if the point has not been jettisoned,
I am of the view that same is
bad and should be dismissed. I say so
because in Review Applications what really matters for the Reviewing
Court is the record
of the proceedings sought to be reviewed. It
really does not matter what the parties’ observations were
outside what is properly
transcribed. The basis for the
point
in limine
was that Da Silva recounted what had occurred at the arbitration
proceedings when she was not present. On that basis so the argument
went, she presented hearsay evidence. Even if the court were to
uphold the point, what remains is the record of the proceedings
which
ought to be taken into account for the purpose of Review
Applications. Accordingly if the point was persisted with, which
I do
not believe it was, it was a bad one in law and I accordingly dismiss
it.
BACKGROUND
FACTS
[2] The Applicant, an
employee of the Third Respondent, on 30 November 2005 refused to take
an Alco Scan Breathalyser Test. The
basis for his refusal was that
the testing was unreliable. At or around 21H00 on that day (30
November 2005) the Applicant was
notified of his suspension and the
reason for suspension was stated as follows:-
“
Refusing
to comply with a reasonable request to undertake an Alco Scan when
reporting for duty which is viewed very seriously by
the Company.”
[3] On or about 05
December 2005, the Applicant received a notification to attend a
disciplinary enquiry for the offence that he
had committed on the 30
November 2005. The offence was set out as follows:-
“
Refusing
to comply with a reasonable request to undertake an Alco Scan when
reporting for duty on 30 November 2005 which is viewed
very seriously
by the Company”.
[4]
The disciplinary enquiry was held from 05 December to 08 December
2005. The Applicant was found guilty and dismissed with immediate
effect. In terms of the
Disciplinary Hearing Action Form, the details of the misconduct that
led to dismissal were set out as follows:-
“
Refusing
to comply with a reasonable request to undertake an Alco Scan when
reporting for duty”.
[5]
Aggrieved by the dismissal, the Applicant referred the dispute to the
First Respondent for resolution. The Second Respondent
was then
appointed to resolve the dispute through arbitration. On 06 June
2006, the Second Respondent issued an award, in terms
of which he
found that the Applicant’s dismissal was substantively fair.
His referral was accordingly dismissed with no order
as to costs. The
Applicant was aggrieved by the outcome and sought to bring this
Review Application.
THE
AWARD
[6] In the award, the
Second Respondent sought to ask himself a question, which he had
couched in the following terms:-
“
The
question to be decided is whether the Applicant contravened the rule
or practice of the company by refusing to blow into an
alcohol
scanner and to leave the company site after he had refused to blow
into the alcohol testing instrument”
[7]
What immediately become discernable by the question couched by the
Second Respondent, is that same is not consistent with what
the
Applicant was charged and dismissed for. The Second Respondent, added
an allegation of refusal to leave the company site after
having
refused to blow into the alco testing instrument. It is not clear
where this would arise from since the Applicant was charged
with
refusal to undertake the alco scan when reporting for duty and he was
dismissed for that allegation.
[8] In the body of the
award, the Second Respondent stated the following:-
“
The
rule to subject any person suspected of being under the influence of
alcohol testing and the practice of requesting the person
refusing to
subject him or herself to alcohol testing to leave the company
premises were necessary in order to ensure safety on
the company
premises. The evidence shows that the rule and the practice have been
consistently applied by the company so as to
ensure the safety of its
employees or of any visitor on its premises.”
[9] Quite interestingly,
at the end of the body of the award, the Second Respondent stated the
following:-
“
I
am satisfied that the offence of which Applicant had been found
guilty of is of sufficient gravity to render continued employment
relationship between the parties intolerable. I accordingly find that
the dismissal in this case was an appropriate sanction”.
ANALYSIS
[10] It is clear to me
that the Second Respondent has indeed committed gross irregularity in
the conduct of the proceedings before
him. It is clear that he paid
little attention to the Security Procedures. For the purposes of this
judgment, I shall consider
paragraph 24, dealing with alcohol and
drugs and paragraph 24.2 dealing with the Breathalyser Test, most
importantly paragraph
24.4 which provides as follows:-
“
No
employee will be obligated to take such a test, however the company
reserves its right to refuse entry to the premises to such
an
employee suspected to be under the influence of alcohol or other
substances”.
[11]
The provision of this procedure was critical for the determination of
the question whether the Applicant was guilty of the
misconduct, more
so, whether he was justified in refusing to take such a test. It
occurred to the Second Respondent that that aspect
is not
determinative of the guilt or otherwise of the Applicant. It is also
apparent that the Second Respondent paid too much attention
to the
fact that the Applicant was requested to leave, he refused and on
that basis dismissal was justified. However the Applicant
as I have
pointed out earlier was not charged with refusal to leave the
premises. The Applicant was charged with refusal to take
the test,
which in terms of the Third Respondent’s own procedures he is
not obligated to take. (See
Edcon v
Pillemer NO and others
[2007] ZALC 101
;
(2008) 5 BLLR 391
(LAC)
at page 399 para 25 – 26)
[12] It is interesting to
note what the Labour Appeal Court has said in the matter of
Maepe
v CCMA and Others (2008) 29 ILJ 2189 (LAC)
at paragraph 11. The
court had the following to say:-
“
The
answer to this argument is that where the law is that a Commissioner
must take into account a certain factor in deciding a certain
question he is obliged to take that factor into account even if none
of the parties asks him to take it into account. When he is
obliged
to take it into account, it is no defence to say that he was not
asked to take it into account. If the factor was
a critical one
and he did not take it into account he may well have committed a
gross irregularity justifying the reviewing and
setting aside of his
award.
Accordingly
the Commissioner’s omission under discussion is capable of
constituting a gross irregularity even if the First
Respondent did
not ask the Commissioner to take into account the Appellant’s
conduct in giving false evidence under oath.
Accordingly, I am unable
to uphold the submission advanced by counsel for the Appellant in
this regard.”
[13] It is understood by
this Court that if a factor is a critical one, even if neither of the
parties raised it, it ought to be
considered by a Commissioner,
otherwise his/ her award is reviewable. In the matter before me, the
security procedure was presented.
It is very clear that the procedure
is critical for the purpose of determining whether the conduct of the
Applicant by refusing
to undergo the test amounted to misconduct.
Proper reading of the procedure suggests that employees are not
obligated and therefore
any refusal would not amount to
insubordination, which according to the Second Respondent was gross
to justify a dismissal. As
pointed out earlier the Second Respondent
says little about the applicability of the procedure when it is such
a critical document.
In the Maepe decision the Labour Appeal Court
went on to say the following:-
“
I
agree, at a general level, with what Conradie JA said in this
passage. Indeed, I have probably said the same thing myself in some
or other judgment in the past. Although a Commissioner is required to
give brief reasons for his or her award in dismissal
dispute he
or she can be expected to include in his or her award brief reasons
those matters or factors he took into account which
are of great
significance to or which are critical to one or other of the issues
he or she is called upon to decide. While it is
reasonable to expect
a Commissioner to leave out of his reasons for the award matters or
factors that are of marginal significance
or relevance to the issues
at hand, his or her omission in his or her reasons of a matter of
great significance or relevance to
one or more of such issues can
give rise to an inference that he or she did not take such a matter
or factor into account. In the
present matter the Appellant’s
conduct in giving false evidence under oath was so critical to the
issue of the relief that,
in my view, the only
explanation for the Commissioner’s failure to mention it in his
reasons as one of the factors
that he took into account is that he
did not take it into account. If the Commissioner had considered such
a critical factor, he
definitely would have mentioned this in his
award. In my view the fact that the Commissioner did not mention the
very critical
factor in his award justifies the drawing of the
inference that he did not take it into account. Furthermore, his
award is very
comprehensive and cannot be said to have been intended
to be brief.
Accordingly,
the matter must be decided on the basis that the Commissioner did not
take this factor into account in considering
what relief if any
should be granted to the Appellant. In the light of the conclusion I
have reached above that the Commissioner
did not take into account
the fact that the Appellant had given false evidence under oath in
the arbitration proceedings in dealing
with the matter the next
question to consider is whether or not the Commissioner’s
failure to take this fact into account
constituted a gross
irregularity”.
[14]
In the end the Labour Appeal Court in that matter concluded that the
Commissioner has committed a gross irregularity and it
set aside his
award on reinstatement and substituted same with a compensation of
twelve (12) months. In the matter before me, it
is clear that the
defence as set out in the Security Procedures was critical to the
determination of the fact that the applicant
was not obliged and
therefore was not guilty of misconduct that he was charged with.
[15]
Again what renders the Second Respondent’s award reviewable is
the fact that he effectively found justification for a
dismissal on
the basis of a charge that the Applicant was never charged with. In
my view that alone amount to misconduct on the
part of the
Commissioner and in fact a gross irregularity.
(
See
Nedcor Bank Ltd v Frank and others
(2002) 23 ILJ 1243 (LAC)
at para 15 G
–H also
Louw v Delta Motors
Corporation
(1996) 2 BLLR 205
(IC)
at
209 D – F
)
[16] The Second
Respondent in his analysis of evidence and argument casually referred
to the provisions of clause 24.3 which provides
that an employee is
not obligated to take the alcohol test as provided for in the
Security Procedures.
However
he went on to refer to a practice which allegedly is the one that the
Applicant had breached, which provided that the company
should not
allow a person who has refused to blow into the alcohol testing
instrument an entry into the premises or to ask such
a person to
leave the premises if he is already on the premises. All of this,
much as reference is made to the practice, matters
not, the charge
that the Applicant faced was that of refusal to comply with the
reasonable request to undertake an Alco scan when
reporting for duty.
The Applicant was not charged with an allegation that he refused to
leave the premises after having refused
to take the Alco scan. The
Second Respondent went on to find on the balance of probabilities
that the Applicant was aware of the
practice in question. In the
Court’s view the issue is whether the Applicant is guilty of
the
charge,
which led to his dismissal not that he is aware of some practice,
which suggest that the refusal to take the Alco scan or
any test
prevents his entry into the premises of the employer and if he
refuses to leave that amounts to misconduct. It is therefore
clear on
this basis alone that since the Applicant was not charged with
refusal to leave, any justification for a dismissal, particularly
where there is no obligation to take the test, suggest that the
Second Respondent committed an irregularity in the proceedings
and
his award is liable to be set aside on review.
CONCLUSION
[17]
In this matter, as I have demonstrated above, what the Commissioner
was concerned with was not what led to the dismissal of
the
Applicant. He was concerned with the practice that allegedly the
Applicant had breached, which he was aware of, which states
that once
you refuse to take the test you are supposed to leave. Such a
practice seems to be clearly inconsistent with the procedures,
which
provides that there is no obligation to undergo the test. If it is
suspected that an employee is being under the influence
of alcohol or
other substances, only in that event entry into the premises is
refused. Proper reading of the clause of the Security
Procedures
suggest
that the Third Respondent can only ask the testing if any employee is
suspected to have been under the influence of alcohol.
It is clear
from the record that no evidence was led to suggest anything with
regard to the Applicant being under the influence
of alcohol.
[19]
In the premises I make the following order:-
1.
The award issued by the Second Respondent
is hereby reviewed and set aside;
2.
The matter is remitted back to the First
Respondent to be heard by another Commissioner other than the Second
Respondent;
3.
I make no order as to cost.
____________________________
G.
N MOSHOANA
Acting
Judge of the Labour Court
Date
of hearing: 11 November 2008
Date
of Judgment: 18 December 2008
APPEARANCES
For
the Applicant: Adv R J Seggie
Instructed
by PKX Attorneys
For
the Third Respondent: Adv P H N Schuman
Instructed
by Tomlinson Mnguni James Attorneys