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[2009] ZALCJHB 43
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Shoprite Checkers (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (JR628/07) [2009] ZALCJHB 43 (15 April 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR 628/07
In
the matter between:
SHOPRITE
CHECKERS (PTY) LTD
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
First
Respondent
COMMISSIONER
A R
MOHLALA
Second
Respondent
YVONNE
MABUZE
Third
Respondent
ELSIE
MASANGO
Fourth
Respondent
LUCAS
THABETHE
Fifth
Respondent
THOKOZANI
DUBE
Sixth
Respondent
SACCAWU
Seventh
Respondent
JUDGMENT
BHOOLA
AJ
:
Introduction
[1]
This is an application in terms of
section 145 of the Labour
Relations Act, 66 of 1995 (“the Act”), to review and set
aside the arbitration award of the
Second
Respondent issued under case number MP 640906 of 19 February 2007, in
which the Second Respondent found the Third to Sixth
Respondents
(“the individual employees”) to have been unfairly
dismissed and ordered their reinstatement.
The procedural
fairness of the dismissals is not in issue and the only issue before
this court is whether the Second Respondent’s
finding on the
substantive fairness of the dismissals and the remedy of
reinstatement that followed is reviewable.
The
application is opposed by Third to Seventh Respondents.
Background
[2] The individual
employees were dismissed following disciplinary enquiries in which
they were charged with serious misconduct
consisting of intimidation
of customers, blocking the parking area, and transgressing strike and
picketing rules.
[3]
Four of the Applicant’s witnesses, namely Mr Simon Ramovha, Ms
Celia De Jager, Ms Bevynne Thomas, and Ms Zelda Maseko
gave evidence
identifying the individual employees acting as a group in committing
the acts of misconduct with which they were
charged.
[4]
Mr Ramovha, a Sales Manager who was given the task of specifically
monitoring the conduct of the striking employees, testified
that the
individual employees were guilty of confronting customers who bought
goods and also chased customers away. When the employer
made plans
for customers to enter through the back entrance “
these 4
applicants would go around the store and swear at those customers.
And the customer would have to run back to the store
and come and
report to us what was going on out there at the store”.
He
further testified that the individual employees could easily be
identified by him because they worked under him. He testified
that
when the police were called to deal with the situation, the acts of
intimidation ceased, but continued once the police left
the premises.
He testified further that the individual employees would shout and
swear at customers and used a
vuvuzela
and verbal threats to
prevent customers from entering the store. They furthermore blocked
the parking area with rocks in breach
of picketing rules.
[5]
Ms De Jager testified that she saw the individual employees
intimidating and swearing at customers, together with employees
from
another store.
[6]
Ms Thomas also implicated the individual employees as acting in a
group intimidating customers and blocking their access to
the store.
She testified that amongst the group of striking employees the
individual employees “
were mainly seen…one of them
was carrying the rocks”.
The rocks were blocking customers
from coming in and “
those were the main 4 that were seen
most of the time…carrying rocks and blocking customers”.
This conduct caused the Applicant to suffer loss of sales. Ms Maseko
testified that the individual employees intimidated non-striking
workers as well as customers.
[7]
There was also specific evidence implicating each of the individual
employees. Mr. Ramovha identified Third Respondent as blocking
customers, and testified that customers had lodged complaints about
her conduct in writing. These statements had been placed before
the
Second Respondent. Ms Thomas specifically identified Third Respondent
and confirmed that the customers knew her because they
frequented the
Deli section where she worked.
[8]
Ms Precious Gumbi, a witness for the Applicant confirmed that the
Third Respondent was a Deli employee. Third Respondent denied
the
allegations made against her but her version did not appear to have
been properly put to any of the Applicant’s witnesses
during
cross examination.
[9]
The Fourth Respondent was pointed out by Mr. Ramovha, who testified
about her conduct in blocking the customer entrance and
intimidating
customers. Ms De Jager testified that Fourth Respondent stopped
customers at the back entrance of the store. This
evidence was not
rebutted by Fourth Respondent as she did not testify.
[10]
Direct evidence was also led about the Fifth Respondent’s role
in intimidating customers, and placing rocks and trolleys
in the
parking area to prevent customer access. This evidence was similarly
not rebutted since Fifth respondent did not testify.
The Applicant’s
witnesses identified the Sixth Respondent as having participated in
various acts of intimidation, including
carrying a
vuvuzela
and
sometimes a stick. Sixth Respondent similarly did not testify and
this evidence was not rebutted. .
[11]
Direct and consistent evidence was accordingly led by the Applicant
in regard to the serious misconduct committed by the individual
employees, and its impact on the relationship between the parties and
the business of the Applicant. The Second Respondent appears
to have
ignored this evidence in determining the dismissals to have been
substantively unfair
Grounds
of review
[12]
The Second Respondent misdirected himself in failing to draw an
adverse inference against the Respondents, given their failure
to
lead evidence. It was submitted by the counsel for the Applicants,
Mr. Boda, relying on the dictum of Pillay J in
Blue Ribbon
Bakeries v Naicker & Others
(2000)12 BLLR 1411 (LC) that in
situations (such as this one) where the versions of the parties are
mutually destructive it is incumbent
upon a commissioner, in
assessing the probabilities, to draw an adverse inference against the
party who fails to call a material
witness.
[13]
The Second Respondent’s finding that the trolleys and rocks
were placed in the parking lot for purposes of protecting
the
picketing area was manifestly unreasonable. This was based on the
testimony of only one of the Respondents’s, and was
contradicted by the evidence of Mr. Ramovha that the reason why the
large rocks and trolleys were placed in the parking area was
to
inconvenience customers. Furthermore, he testified that marshals were
present at the premises as required by the picketing rules,
which
were agreed by the parties as a result of an interdict sought by the
employer, and since the picket area was marked there
would have been
no reason to use rocks to “protect” it. It was submitted
that this was not a reasonable conclusion
in the circumstances.
[14]
The Second Respondent’s finding that the Applicant did not lead
any
evidence that the individual employees blocked the front
entrance of the store. This, it was submitted, reflects the Second
Respondent’s
complete failure to apply his mind to the evidence
before him and is not a conclusion a reasonable arbitrator could have
reached
in the light of direct evidence to the contrary.
[15]
The Second Respondent’s finding that the allegations against
individual employees were vague and general. It was submitted
that
this in an indication of the Second Respondent’s failure to
apply his mind to the evidence, in that such a finding could
not have
been made by a reasonable decision maker in circumstances where
direct evidence about the conduct of the individual employees
was
led, and was, except in one instance, not rebutted.
[16]
The finding of the Second Respondent that the blocking of the parking
area was not an act of intimidation. This demonstrates
a failure to
view the conduct of the individual employees as a whole, and it was
submitted, is not a finding a reasonable decision
maker could have
made in that it bears no correlation to the evidence led on this
issue.
[17]
The finding that no evidentiary value could be placed on the customer
complaints placed before the Second Respondent.
The Second
Respondent draws an adverse inference on the part of the Applicant
for not calling as witnesses the customers who made
written
complaints, but does not do so in respect of the failure of four of
the individual employees ( who were at all time present
at the
proceedings), to testify. Furthermore, he disregarded the customer
complaints notwithstanding that they were tendered in
evidence and
were supported by the direct evidence of other witnesses called by
the Applicant, which evidence was unchallenged.
Even if the witness
statements were considered by the Second Respondent to have been
hearsay, it was submitted that they were admissible
as a result of
being corroborated by the direct evidence of other witnesses for the
Applicant who witnessed the events that formed
the basis for the
statements, and furthermore that in terms of
Section 3
of the
Law of
Evidence Amendment Act, 45 of 1988
, hearsay evidence could be
admissible in certain circumstances. The court was referred in this
regard to
Rand Water v Legodi NO & Others (
2006) 27 ILJ
1933 (LC) in which Revelas J held that an arbitrator had a discretion
to permit hearsay evidence or to exclude it.
The failure of the
Second Respondent to apply his mind to the question, it was
submitted, was an irregularity and was unreasonable
[18]
The finding concerning the failure to produce the photographs.
The record reflects that certain photographs were tendered
by the
representative of the Applicant, Mr. Molefe, who was a layperson. The
Second Respondent did not indicate to Mr. Molefe that
he would draw
an adverse inference if the photographs were not produced. It
was submitted that in these circumstances the
adverse inference was
unreasonable and the rule had been applied inconsistently and in an
unreasonable manner, which resulted in
an irregularity.
[19]
The remedy of reinstatement was inappropriate in that the Second
Respondent took no account of the evidence of intimidation
and
the breakdown of the relationship between the parties in ordering the
reinstatement of the individual employees. Serious misconduct
of the
type with which the employees were charged leads to the breakdown of
the employment relationship and is a justifiable basis
for dismissal:
Adcock Ingram Critical Care v CCMA & others
(2001) 9 BLLR
979
(LAC). No account was taken by the Second Respondent of the Code
of Good Practice: Dismissal nor of the ruling on sanction in the
disciplinary enquiry, which took into account the fact that strike
rules had been broken, a court order had been breached and the
behaviour of the individual employees in intimidating staff,
management and customers had resulted in a breach of trust between
the parties, and found that the serious nature of the offence merited
the sanction of dismissal.
In fact, it was submitted, the Second
Respondent took no account of the factors listed in
Fidelity Cash
Management Service v CCMA & Others
(2008) 3 BLLR 197
(LAC) by
Zondo JP, as constituting the relevant enquiry by a commissioner in
these circumstances.
[20]
The review was opposed by the Seventh Respondent on behalf of the
Third to Sixth Respondents, on the grounds that the Second
Respondent’s decision was rational and reasonable in the
context of the evidence,
inter alia
, that none of the
individual employees were arrested or charged with intimidation, no
proper records were kept by Mr. Ramovha and
he could not recall the
exact dates on which the blockages occurred, as well as the failure
to lead evidence of customers.
The
legal test applicable to reviews
[21]
The broad terms of review were the Second Respondent’s failure
to apply his mind, as well as the reasonableness of his
decision.
[22]
The
dictum
of the Constitutional Court in
Sidumo &
Another v Rustenburg Platinum Mines Ltd & others
(2007)
28 ILJ 2405 (CC) that the grounds of review set out in section 145 of
the Act are suffused by reasonableness is by
now trite. The
Sidumo
test of unreasonableness has been applied in a number of
judgments of this court and has been aptly described by Zondo JP in
Fidelity Cash
(supra at paragraph 96) as requiring that an
award “
must be reasonable and if it is not reasonable, it
can be reviewed and set aside”.
[23]
It was submitted by counsel for the Applicant that the Second
Respondent was obliged to apply his mind to the issues before
him,
which he failed to do, rendering his decision reviewable. Mr Boda
cited as authority for this proposition the recent decision
of the
Constitutional Court in
Commercial Workers Union v Tao Ying Metal
Industries & others
(2008) 29 ILJ 2461 (CC) in which, despite
her dissenting judgment, O’Regan J concurred with the majority
that commissioners
who do not apply their minds “
are not
acting lawfully and/or reasonably and their decisions will constitute
a breach of the right to administrative justice”
( at 2501,
para 134).
[24]
The reasonableness of the decision, furthermore, must be determined
“
objectively with due regard to all the evidence that was
before the commissioner and what the issues were that were before him
or
her
”(
Fidelity Cash,
supra at 227 C).
[25]
In my view, in the context of the evidence and issues before the
Second Respondent as described above, the finding that the
dismissal
of the Third to Sixth Respondents was unfair and justified their
reinstatement, was not one that a reasonable decision-maker
could
have reached. Second Respondent failed to have regard to direct
and evidence, which was not rebutted by the Respondents,
implicating
the individual employees in the various acts of serious misconduct in
respect of which they were charged and dismissed.
[26]
In the circumstances, I make the following order:
(1) The
application for review and set aside of the award of the Second
Respondent is upheld;
(2) The
Second Respondent’s award is substituted with an order
declaring that the dismissal of the Third,
Fourth, Fifth and Sixth
Respondents by the Applicant is substantively and procedurally fair
and justifies their dismissal.
(3) No
order is made as to costs.
________________________
Bhoola
AJ
Date
of hearing : 31.03.09
Date
of judgment : 15.04.09
Appearance
For
the Applicant : Advocate F A Boda instructed by
For
the Third to Seventh Respondents : Mr K Boboyi SACCAWU
Official