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[2009] ZALCJHB 50
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Woolworths (Pty) Ltd v Magwaza NO and Others (JR536/08) [2009] ZALCJHB 50 (2 October 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASENO:
JR536/08
In
the matter between
WOOLWORTHS
(PTY) LTD
APLLICANT
AND
COMMISSIONER
SIBUSISO MAGWAZA N.O
1
st
REPONDENT
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
2
nd
REPONDENT
SOUTH
AFRICAN COMMERCIAL
CATERING
AND ALLIED WORKERS
UNION
(SACCAWU)
3
rd
RESPONDENT
LUNGILE
QUMA
4
th
RESPONDENT
JUDGMENT
MTHEMBU
AJ
INTRDUCTION
[1]
This application is in terms of section 145(2)(a) of the Labour
Relations Act 66 of 1995(the LRA), to review and substitute
an
arbitration award dated the 28
th
of January 2008, issued by the first respondent, under the auspicies
of the second respondent. The fourth respondent in whose favour
the
reinstatement award was issued and the third respondent opposed the
application.
BACKGROUND
FACTS
[2]
Until the fourth respondent’s dismissal, he was employed by the
applicant as a classical management trainee.
[3]
On or about 3 December 2006, the applicant held an end of the year
function for the employees of the Fountaine Bleau, Blaigowrie
and
First Place stores.
[4]
The fourth respondent was responsible for arranging music for the
evening. He asked Karabo and another employee to organise
a music
system for the evening. Karabo confirmed that some of his friends
would play music at the function and that they would
setup a music
system
[5]
Karabo arrived at the function very late. In the interim management
had organised somebody other than Karabo and his friends
to play
music. Management explained to Karabo that because he and his friends
arrived so late, that the applicant no longer needed
their services.
[6]
It is alleged that the fourth respondent had been drinking
excessively during the evening.
[7]
At around 20H00 management was approached by an employee complaining
that, the fourth respondent had shouted at her for the
way she had
been controlling the drinks served at the bar.
[8]
The fourth respondent later approached Karabo demanding that he and
his friends leave the party. Karabo had tried to explain
why he was
late to the fourth respondent who aggressively grabbed Karabo whilst
yelling and swearing at him and threatened to kill
him.
[9]
Various members of management and other employees tried on a number
of occasions during the evening to calm down the fourth
respondent.
During these attempts of calming him down, he yelled at the store
manager.
[10]
At approximately 22H30, the security guard approached management
requesting that the crowd move out of the venue and the party
stopped. As a result of the fourth respondent conduct and in the
interest of the safety of the other employees, all of the employees
were moved out of the function venue and into the parking lot. A
member of management called the police to intervene.
[11]
The employees saw the fourth respondent throwing a cooler box around.
He also broke a bottle and whilst waving it above his
head, yelled
that he was a gangster and that he would call his friends to support
him.
[12]
The fourth respondent also manhandled and assaulted some of the
employees by pushing them to the ground and hitting them.
[13]
He was consequently suspended and charged with the following:
“
Gross
misconduct in that on 3/12/06 you brought the company’s
reputation and image into disrepute by displaying unacceptable
and
inappropriate behaviour during a X-mas function”
[14]
The fourth respondent attended a disciplinary enquiry after which he
was found guilty of the charge laid against him and was
dismissed.
[15]
He referred the matter to the second respondent for conciliation and
arbitration. The first respondent as the appointed arbitrator
found
the dismissal to have been substantively unfair and ordered the
applicant to reinstate the fourth respondent. It is this
order which
the applicant seeks to have reviewed and set aside.
REVIEW
GROUNDS
[16]
The applicant placed reliance on its founding affidavit and in the
heads of argument, on a defect in the arbitration award
as defined in
section 145(2)(a) of the LRA .In addition it was submitted that the
first respondent issued an award that was not
rational when taking
into account the body of evidence that was placed before him during
the arbitration hearing. In the founding
affidavit the applicant
dealt with each paragraph of the analysis of evidence and argument by
the first respondent to demonstrate
how in its view the first
respondent’s award was visited by defects.
[17]
The submission by the third and fourth respondents was that no valid
grounds for review existed as the arbitrator did not commit
any
defects as described in section 145 (2)(a) of the LRA. It was said
that the arbitrator correctly applied his mind to all the
relevant
evidence and reasonably concluded that the fourth respondent’s
dismissal was unfair. Further the decision of the
arbitrator was
rational and justifiable in relation to the evidence presented before
him and as such there existed no basis that
his conduct constituted
an irregularity in the proceedings. Accordingly there existed no
basis to review and set aside the award.
[18]
The attack on the arbitration award by the applicant was then in the
following terms:
(a)
The first respondent unreasonably and
incorrectly committed a gross irregularity in the proceedings in
finding that the fourth respondent’s
dismissal was
substantively unfair in circumstances where evidence led indicated
that there was more than fair reason to dismiss
the fourth
respondent, especially in light of the aggressive and violent
behaviour shown by him towards both managements and colleques.
The
first respondent failed to place relevance on the fact that not only
had the fourth respondent been grossly insubordinate,
but that his
conduct had intimidated and frightened his fellow employees and other
guests at the function, bringing the applicant’s
name into
disrepute. His conduct warranted his dismissal.
(b)
The first respondent committed a gross
irregularity in finding that the fourth respondent’s dismissal
was a result of the
fact that the applicant does not have a system in
place to deal with conflict and further that there are existing
problems between
management and other employees. This finding is
entirely irrelevant in circumstances where corroborated evidence was
placed before
the first respondent detailing the nature of the first
respondent’s violent and aggressive behaviour at the function.
(c)
In finding on the one hand that the fourth
respondent had acted correctly and consistently in complaining to
management about Karabo
and his friends’ conduct, but that on
the other hand the fourth respondent’s conduct had been
inappropriate and that
he should have robustly sought management’s
intervention. This finding is contradictory, confusing and entirely
incongruous
with the evidence placed before the first respondent and
his own finding regarding fourth respondent testimony.
(d)
The first respondent committed a gross
irregularly in finding that the fourth respondent’s conduct had
not been sufficiently
serious to warrant dismissal and further that
the applicant should have found an alternative to dismissing him. The
arbitrator
failed to attach relevance to the fact that the fourth
respondent’s misconduct had resulted in a very serious and
negative
impact on the trust relationship with the applicant. He
could not have come to any other conclusion but that the trust
relationship
was broken down if one has regard to the evidence that
was before him and that dismissal was the appropriate sanction to
impose.
(e)
The arbitrator failed to take into account
that the fourth respondent’s testimony was both contradictory
and confusing. On
the one hand, he testified that he was beaten by
Karabo’s friends, but on the other hand he claims that Karabo
and his friends
did not come after him. The arbitrator also failed to
take into account the fact that prior to the arbitration the fourth
respondent
did not report that he had been assaulted. The fourth
respondent testified under cross examination that he had not
mentioned this
version at the disciplinary enquiry, because he had
not been asked about the alleged assault. This explanation is wholly
unconvincing.
A reasonable decision maker would not have chosen the
fourth respondent’s unsatisfactory version over that of the
applicant’s
witnesses.
(f)
A reasonable decision maker could not have
reached the same conclusion as the arbitrator that the dismissal was
unfair in the circumstances.
(g)
The arbitrator failed to take into account
there fact that it was incumbent up on him to consider the contents
of the test detailed
in the judgment of
Sidumo
& Others v Rustenburg Platinum Mines Ltd & Others
[2007] 12
BLLR 1097(C).
[19] The third and the
fourth respondent’s submission in contrast to those of the
applicant were that:
(a)
The first respondent is correct and justified in finding that;
(i)
The company has failed to satisfy the commission that there were
sufficient reasons to dismiss the fourth
respondent,
(ii)
It was the fourth respondent/others conflict dynamic which was the
root of all problems eventually
elected as the reasons for the
dismissal.
(b)
In dismissal disputes, the onus to prove that the dismissal is fair
rest on the employer,
as contemplated in section 192(2) of the LRA.
The employer must adduce evidence which proves that there was a fair
reason for the
dismissal
(c)
The applicant failed to prove the allegation against the fourth
respondent by not
calling Karabo and Prince to give testimony at the
arbitration hearing
(d)
Mr Danie Minaar’s testimony does not prove that the fourth
respondent committed
the offence as charged as he was not present at
the party but was informed about what had transpired.
(e)
If the applicant did not allow Karabo and his friends to join the
party there would
be no problems. The conflict was started by Karabo
and his friends.
(f)
The fourth respondent acted reasonably in this matter, he
consistently brought
his dissatisfaction to management’s
attention and demanded remedial action.
(g)
The first respondent did
apply his mind to the facts and evidence presented before
him. His
decision was and remained rational and justifiable in relation to the
evidence presented before him and there exist no
basis that his
conduct constitutes a gross irregularity in the conduct of the
proceedings nor that the award should be reviewed
and set aside.
ANALYSIS
[20]
During argument, the third and fourth respondent’s legal
representative Ms Mpho Mjeza conceded that the award was unreasonable
and falls to be reviewed and set aside but asked that the matter
should be remitted to the second respondent before a commissioner
other than the first respondent.
[21]
The only issue left for me to decide is whether I should remit the
matter to the second respondent for arbitration before a
commissioner
other than the first respondent.
[22]
In
Eastern Cape Agricultural Co-operation v Du Plessis &
others [2000] 21 ILJ 1335 (LC)
,the applicable test
to apply
when considering whether or not to remit the matter back to the CCMA
was set out as follows:
“
The
issue then arises as to whether I should substitute my own finding
for that of the arbitrator or whether I should remit the
matter to
the CCMA for re hearing. Prof Grogan stated that the correct test is
whether I can make a fair finding in relation to
the fundamental
issues on the facts before me. If I have any hesitation in that
regard the proper course is to remit the matter
back to the CCMA. If
I have no hesitation, then the most expedient course of action is to
set the award aside and hold that the
dismissal of (the employee) was
fair.”
See also
McDonalds
SA (Pty) Ltd v CCMA& Others [2003]10 BLLR 1020 LC
[23]
I have enough evidence on record and I have no hesitation to make a
finding and substitute the first respondent’s award.
It is
further my view that remitting the matter back to the CCMA would
defeat the spirit of the LRA namely, dispute should be speedily
resolved, for this reason and because of the sufficient information
before me I do not deem it necessary to refer the matter back
to the
CCMA. It is clear from the reading of the record that the applicant
had discharged its burden of showing that the fourth
respondent
committed an offence which warranted the sanction of dismissal. The
circumstances of this case are such that it would
not be fair to have
expected the applicant to keep the fourth respondent in its
employment and to continue with the employment
relationship. I
therefore find that the applicant had a good and fair reason to
dismiss the fourth respondent.
[24]
The applicant has sought an order for costs against the third and
fourth respondents jointly and severally, the one paying
the other to
be absolved. I am satisfied that it would be appropriate in this case
to make an order for costs.
ORDER
In the result I make the
following order:
(1)
The award of the first respondent under
case no GAJB 30184-06 under the auspicies of the second respondent is
reviewed and set aside.
(2)
The first respondent’s award is
substituted with the following :
(i) The dismissal of the
fourth respondent was substantively fair
(ii)
The third and the fourth respondent are jointly and severally ordered
to pay the applicant’s costs, the one paying the
other to be
absolved.
_____________________
MTHEMBU
AJ
Date
of Hearing: 15 May 2009
Date
of Judgment: 2 October 2009
APPEARANCES
For
the applicant: M Edwards
Instructed
by: Perrott, Van Niekerk Woodhouse, Matyolo INC
For
the Respondent: Ms M Mjeza
Instructed
by: SACCAWU Wits Legal Unit
CASES
REFERRED TO:
Eastern
Cape Agricultural Co-operation v Du Plessis & others [2000] 21
ILJ 1335 (LC)
McDonalds
SA (Pty) Ltd v CCMA& Others [2003]10 BLLR 1020 LC