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[2009] ZALCJHB 28
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Defensor Security v Mabalane NO and Others (JR922/07) [2009] ZALCJHB 28 (30 January 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE
NO: JR922/07
In
the matter between:
DEFENSOR
SECURITY Applicant
and
STEVEN
MABALANE
N.O. First
Respondent
COMMISSION FOR
CONCILIATION,
MEDIATION
AND
ARBITRATION Second
Respondent
SANKI JOSEPH
LIPHOKO Third
Respondent
JUDGMENT
FRANCIS
J
1.
This is an unopposed application to review and set aside an
arbitration award made by the first respondent (the commissioner)
under case number FS703/06, after he had found that the third
respondent was unfairly dismissed and ordered the applicant to
reinstate
him and pay him seven months arrear salary.
2. The
third respondent commenced employment with the applicant on 1 August
2003 as a security guard. He was at the time of
his dismissal
on 10 June 2006 earning R1 400.00 per month. On 10 June 2006
Don Douw Gerbrandt Raimondo called all the security
guards together
including the third respondent and told them that as from the
following Monday all security guards had to wear
uniform to work and
that no communication would be allowed. This was during the
security strike. Raimondo then asked
them if any of them had a
problem. The third respondent told Raimondo that he was staying
with his mother and that the strikers
were going around their houses
and that keeping contact with his family was therefore important for
him. Raimondo told him
that his word was final and that he was
wasting his time. Raimondo continued to speak and then asked
who was against what
he was saying. When the third respondent
tried to explain, Raimondo told him to get out of the premises.
He waited
at the gate when one of the applicant’s senior asked
him to sign a certain document that he refused to do. He left
and referred an unfair dismissal dispute to the second respondent
(the CCMA).
3. Don
Douw Gerbrandt Raimondo testified for the applicant. He said
that on 10 June 2006 he went to talk to the security guards
about
laptops, cellphones and problems that the client had with their
security guards. He told them that cellphones were
not
permitted in terms of the job description. They all understood
except the third respondent. He explained again
the procedures
for communication. The third respondent did not understand and
he then told him to wait one side and to go
to the office. After the
meeting ended, the third respondent was still waiting around and
Raimondo left for the office. He
waited for the third
respondent at the office but he did not arrive. They did not
see him again. He denied that the
third respondent was
dismissed.
4. The
applicant called Seleke Totse as its second witness. He
testified that he was at the meeting and witnessed the quarrel
between the third respondent and Raimondo. All the security
guards accepted that they would not use their cellphones except
the
third respondent. The third respondent said that he had
relatives that he must communicate with and Raimondo told him
to go
to the office that he did not do. Jackie Eloff testified
as the applicant’s third witness. He said
that he was
present at the meeting on 10 June 2006. They were enforcing the
rule that security guards must not talk on their
cellphones. All
the security guards understood except the third respondent because he
spoke of his family problems.
Raimondo told the third
respondent to go to the office that he did not do.
5. The
commissioner stated in his award that section 185(a) of the Labour
Relations Act 66 of 1995 (the Act) provides that every
employee has
the right not to be unfairly dismissed. Section 192 of the Act
provides that in any proceedings concerning any
dismissal, the
employee must establish the existence of a dismissal and once
established, the employer must then prove that the
dismissal in
question is fair. It was clear that the issue in dispute was
whether the third respondent was dismissed.
6. The
commissioner said that the third respondent’s testimony was
that he was told by Raimondo to get out of the premises.
The
applicant’s testimony on the other hand was that the third
respondent was told to go to the office. The commissioner
said
that it was highly improbable in the first instance that the third
respondent would be told to go to the office and decide
to go home
and stay there. He had been in the applicant’s employment
for three years and was not at that time leaving
the applicant for
another employment. The second point is that in circumstances
such as those that obtained at that point,
i.e. during the strike, it
was reasonable for the third respondent to request that he be allowed
to have constant communication
with his mother, with only whom he
lived. The third respondent’s uncontested evidence was
that the security strike
was one of the most acrimonious and brutal
in recent history. The strikers targeted those who continued
with the employment
and their families. The commissioner said
that to want to make such employees obvious targets was to a large
extent unreasonable
on the part of the employer. It is in fact
the employer’s duty to ensure the safety and security of
employees.
Case law is abundant and quite clear about the
procedures that the employer must follow in instances where the
employee just leaves
the employment. The duty is in fact placed
upon the employer to ascertain why it is that the employee is not
reporting for
duty. In this case it seems that the applicant
concluded that it was good riddance. The applicant’s
version that
the third respondent was asked to go to the office and
never pitched was highly improbable. It is not in consonant
with the
normal behaviour of employees or human beings that if an
employee is told to report at the office, decides to stay away.
The commissioner concluded that the third respondent was dismissed
and that such dismissal was unfair. Section 193 of the
Act
required that he should order reinstatement. The applicant was
ordered to reinstate the third respondent on terms and
conditions
that are no less favourable than those that prevailed before his
dismissal. It was ordered to pay the third respondent
arrear
salary in the amount of R9 800.00 and reinstatement on or before 5
March 2007.
7. The applicant brought
a review application and raised the following grounds of review:
7.1
The commissioner’s reasoning is flawed in finding as he did.
7.2
The commissioner’s decision cannot be regarded as justifiable
considering the reasons
given for it.
7.3
The applicant’s case is that the third respondent was never
dismissed but that he
had left the employ of the applicant out of his
own accord. The commissioner ought to have found that there was
no dismissal
of the third respondent by the applicant. On the
evidence before the commissioner the third respondent could not on a
balance
of probabilities prove his alleged dismissal. The
applicant’s version was the more probable one and the
commissioner
ought to have found that the third respondent was not
dismissed. The conclusion reached by the commissioner that the
third
respondent was dismissed and that such dismissal was
procedurally and substantively unfair is unjustifiable in the light
of the
evidence adduced before him.
7.4
The commissioner failed to consider all the evidence before him,
alternatively made a finding
not justified by the evidence and it
constitutes a gross irregularity or misconduct or exceeding the
commissioner’s power
and it renders his conclusion that the
third respondent was dismissed, unjustifiable with reference to the
reasons given and the
evidence before him. There is no rational
connection between the evidence led and the conclusion reached by the
commissioner.
7.5
The proceedings before the commissioner brought about an unjust
result and stand to be set
aside.
7.6
The order that the third respondent be reinstated and be paid the
remuneration he would
have been paid from date of dismissal to date
of arbitration in inappropriate in the light of the fact that the
applicant never
dismissed him.
8. The
applicant has raised several grounds of revie. It
is not necessary to repeat those. None of
the grounds
raised are those identified in
Sidumo &
Another v Rustenburg Platinum Mines Ltd & Others
(2007) 28 ILJ 2405 (CC). The review test is whether the
decision reached by the commissioner is one that a reasonable
decision
maker could not reach. The standard is now one of
reasonableness. The applicant contended that the commissioner
has
committed misconduct and a gross irregularity. A
commissioner is in terms of section 138 of the Act required to decide
whether a disputed dismissal was fair and should do so fairly and
quickly. A commissioner must also determine whether misconduct
was committed and must consider all the facts and the evidence.
The commissioner must consider and evaluate the inherent
probabilities and assess the credibility of a witness. Where a
commissioner flagrantly disregards relevant or crucial evidence
or
where the reasoning is fatally flawed, or incorrectly applies legal
principles, a reviewing court may be inclined to conclude
that the
ultimate decision arrived at is one that no reasonable commissioner
could have arrived at.
9. The commissioner was
called upon to decide whether the third respondent was dismissed and
if so whether the dismissal was unfair.
The applicant’s
version is that it spoke to all employees about communication and the
issue of cellphones at work.
The third respondent was asked
whether he had any problem with that and said that he had. He
was told to wait and go to the
office where the issue would be
discussed. The third respondent’s version as opposed to
this was that there was a discussion
about the use of cellphones.
He raised the issue with the employer that he needed to communicate
with his mother due to the
security strike. The employer told
him to leave the premises which he did.
10.
The commissioner was faced with two mutually destructive versions
only one of which was correct. He was therefore required
to
assess the evidence and make a credibility finding. This is
precisely what the commissioner did. He had the benefit
of
having observed the witnesses before him and made a finding.
The proceedings were not transcribed but only the commissioner’s
handwritten notes were. There are some gaps in the record which
the applicant should have rectified. What the applicant wants
this
court to do is to second guess the finding made by the commissioner.
This court is not able to do so taking into account
the state of the
record. It is clear from the record that the third respondent
was not charged with having absconded which
is what the applicant
appears to contend had happened. No explanation was proffered
why the applicant did not follow this
route. The third
respondent’s contention that he was dismissed is more probable
than the applicant’s version.
11.
Sidumo
enjoins the Court to remind itself that the task to decide the
fairness or otherwise of a dismissal falls primarily within the
domain of the commissioner. This was a legislative intent and
as much as decisions of different commissioners may lead to
different
results, it is unfortunately a situation that has to be endured with
fortitude despite the uncertainty it may create.
The court must
remind itself that the test ultimately, is whether the decision
reached by the commissioner is one that a reasonable
decision maker
could reach under all the circumstances. On this test this
court cannot gainsay that decision of the commissioner.
12.
The application stands to be dismissed.
13. In
the circumstances I make the following order:
13.1
The application is dismissed with costs.
FRANCIS
J
JUDGE OF THE LABOUR
COURT OF SOUTH AFRIC
A
FOR
THE APPLICANT
: S ROELOFFS INSTRUCTED BY FRED VOGEL ATTORNEYS
FOR THIRD
RESPONDENT :
NON APPEARANCE
DATE
OF HEARING
: 14
OCTOBER 2008
DATE OF
JUDGMENT
: 30
JANUARY 2009