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[2009] ZALCJHB 7
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MTSA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1376/06) [2009] ZALCJHB 7 (30 October 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE
NUMBER: JR 1376/06
IN
THE MATTER BETWEEN:
MTSA
(PTY) LTD
APPLICANT
AND
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
FIRST RESPONDENT
ADV
R BRACKS
SECOND
RESPONDENT
HARVEY
SIBUSISO
RADEBE THIRD
RESPONDENT
JUDGMENT
MOLAHLEHI J
Introduction
[1] This is an
application to review and set aside an award dated 20 May 2006 issued
under case number GAJB 8996-05. The key issue
in this matter relates
to the appropriateness of the sanction, the commissioner having found
that the third respondent, herein
referred to as “the employee”
had breached the rule.
Background facts
[2] The employee who was
employed by the applicant for a period exceeding 16 years was
stationed at Ispot Iscor’s Vanderbijl
Park Steelworks (Iscor),
a client of the applicant, was dismissed arising from an alleged
misconduct.
[3] Iscor had a policy
which applied to the employees of the applicant which governed the
bringing in or removal of any item from
its premises. The policy
required employees to fill in a form known as B2100, before bringing
in or removing any item from the
premises. The signed form would be
valid for a period of 30 days. After 30 days an employee would
require an authorised gate release
from one of the managers.
[4] It is common cause
that the employee was on the 11 February 2005, found in
possession of the 10 (ten) computer diskettes.
It was alleged by the
applicant that 4 (four) of the diskettes contained a scanner software
used to scan and measure furnaces.
The explanation proffered by the
employee for being in possession of the diskettes was that he found
them in a rubbish bin outside
the Iscor premises.
[5] The commissioner in
the award recorded the evidence as being that the employee obtained
the diskettes from a friend who found
them in a bin outside Iscor.
He then requested a certain Delizhlazo to check for him what
was contained in the discs.
[6] There is conflicting
versions regarding whether the discs were concealed at the time they
were found by the security. The version
of the employee which was
accepted by the commissioner is that he did not conceal them but the
security officer made a statement
stating that he found the diskettes
in the employee’s bag at the point when he (the employee) was
leaving Iscor premises.
[7] The charges proffered
against the employee read as follows:
“
1. Unauthorised
possession of the company property.
2. Bringing
company name into disrepute”
[8] The outcome of the
disciplinary hearing was that the employee was dismissed for being
found in “
authorised possession of company property.”
The award and grounds
for review
[9] The applicant
contended that there are glaring errors concerning the recordal of
the evidence by the commissioner. It is contended
in this regard that
the commissioner failed to appreciate the evidence before him and
this contributed to his conclusion that the
dismissal was unfair.
[10] The applicant
contended that the summery of the evidence by the commissioner at
paragraph G of his award was not the evidence
led during the hearing.
It was contended in this regard that it was never said that the
employee was the only person who had access
to the software in
question.
[11] The applicant
further contended that the commissioner incorrectly summarised the
evidence relating to how the employee came
into possession of the
diskettes. The commissioner found that the employee had testified
that the diskettes were found by a friend
outside the premises of
Iscor amongst magazines in a bin.
[12] The applicant argued
that because of the incorrect recording of the evidence the
commissioner laboured under the incorrect
impression that the
employee might have been a mere “by-stander”. It was,
according to the applicant, this failure
to appreciate the evidence
before him that led the commissioner to conclusion that the dismissal
sanction was inappropriate.
[13] The other challenge
to the commissioner’s award, raised by the applicant relates to
failure by the commissioner to conduct
an inspection in loco to
inspect the discs after undertaking to do so.
[14] In its supplementary
affidavit the applicant contended that because, there was an element
of dishonesty in the charges the
commissioner should not have ordered
reinstatement. The other complaint by the applicant is that the
commissioner failed to give
consideration to the fact that the
explanation given by the employee for being in possession of the
diskettes was highly improbable.
The second point related to
the issue that the commissioner failed to accord appropriate weight
to the evidence before him
particularly as concerning the version of
the applicant that some of the diskettes contained software material
scanner on Iscor.
And the third point relates to the version of
applicant that the diskettes were available only to Mr. Warren and
the engineer on
the Metal side.
[15] The re-instatement
of the employee was also challenged as being inappropriate because
Iscor, the client of the applicant had
indicated that it no longer
wanted him on its premises.
Test for review
[16] It seems prudent to
deal firstly with the issue of whether incorrect recordal of the
evidence amount to gross irregularity?
It is not every error in law
or fact that would render an arbitration award reviewable. It is
gross error in law or fact that would
vitiate an arbitration award.
[17] In my view incorrect
recordal of the evidence did not materially or in any significant way
affect the conclusion reached by
the commissioner. The
commissioner found the employee to have been guilty as charged and
having arrived at this conclusion
he proceeded to assess the
appropriateness of the sanction.
[18] In
Z
Sidumo
v Rustenburg Platinum Mine Ltd
2008 (2) SA 24
, the Constitutional
Court (the CC) developed the reasonable decision-maker test to be
used in determining whether there is a basis
for this Court to
interfere with the decisions of the commissioners on review. In
relation to the provisions of section 145
of the LRA the CC
held that the provisions of this section were now “suffused”
with the standard of reasonableness
which was previously set
out in
Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs & Others
[2004] ZACC 15
;
2004 (4) SA 490.
[19] In terms of the
reasonable decision-maker test the review Court would be entitled to
interfere with the decision of the commissioner
if it is found that
the decision is one which a reasonable decision-maker could not
reach. The reasonableness of the
award is determined
through the objective assessment of all the relevant factors and
circumstances of each case.
[20] The critical issue,
in the present instance, in my view, that determines whether the
arbitration award is sustainable or not
concerns what happened with
the inspection in loco which the commissioner mooted toward the end
of the proceedings.
[21] It is evidently
clear from the reading of the transcribed record of the arbitration
hearing that before adjourning the hearing
the commissioner proposed
to the parties that an inspection of what was contained in the
diskettes be conducted. The parties agreed
to the proposal but what
then followed thereafter was a protracted discussion as to when such
an inspection should be held. The
record does not reveal whether
there was an agreement as to the date for the inspection and if there
was no agreement what happened
to the proposal itself. It is
apparent that the understanding was that the inspection of what the
diskettes contained was
to be conducted at the applicant’s
premises.
[22] The other thing that
the commissioner indicated was that after the inspection the parties
would then be given the opportunity
to make their closing arguments.
The inspection of the diskettes did not take place but the parties
did make their closing arguments
which as indicated earlier were
supposed to take place after the inspection. There is no indication
that the applicant’s
representative raised an objection or
concern about the fact that the closing argument was happening before
the inspection of the
diskettes. There is also no indication that the
applicant indicated that it wished to have the issue of the
inspection pursued
after the closing argument, before the
commissioner could issue his award.
[23] It seems to me that
the applicant was either, not interested or did not regard the
inspection as an important part of its case.
As indicated
earlier there is nothing in the record that sheds light as to what
happened to the inspection in loco after the parties
agreed with the
proposal of the commissioner. In its papers the applicant
raises the issue without indicating what the final
conclusion was
after the parties agreed to the proposal. The applicant has also not
made out a case as to in what way it was prejudiced
by failure of the
commissioner to conduct the inspection.
[24] The issue that
arises from the complaint about failure to conduct inspection in loco
by commissioner relates in my view to
the method or mistaken action
taken by the commissioner in the manner in which he conducted the
arbitration hearing and not the
correctness of his decision.
[25] Thus the critical
question is whether by failing to conduct the inspection in loco the
commissioner denied the applicant a
fair hearing of the issues. If it
did prevent a hearing on the aspect related to the contents of the of
the diskettes then it would,
as it was held in
Goldfield
Investments Ltd and Another v City of Johannesburg
1938 TPD 551
,
amount to a gross irregularity. It would be an irregularity
upon which, as was found in
Ellis v Morgan v Desai
1909 TS 576
,
the Court would be entitled to review and set aside the
decision of the commissioner.
See also Coetzee v Lebea NO and
Another (1999) 20 ILJ 129 (LC).
[26] I have already
indicated that the applicant has not made out a case showing that
failure to conduct an inspection in loco prejudiced
it and in what
manner. An assessment of what could have been the purpose of the
inspection in loco, also does not reveal any possibility
that the
applicant was prejudiced by the failure of the commissioner to carry
out the inspection.
[27] The issues for
determination by the commissioner were essentially common cause. The
issues related to whether the employee
was guilty of failure to
follow procedure in bringing property into Iscor’s premises
and whether this conduct
brought the name of the applicant into
disrepute. In as far as these issues are concerned I am satisfied
that the commissioner
gave the parties a fair trial. In the
result it can therefore not be said that the commissioner committed a
gross irregularity
in failing to conduct the inspection in loco.
[28] Turning to the broad
aspects of this review, I am of the view that the
commissioner arrived at a decision which
a reasonable decision-maker
could reach. I have already indicated above that having found the
employee guilty what was left for
the commissioner was to determine
the fairness of the sanction.
[29] The power to
determine the fairness of the sanction rests with the commissioner.
In exercising this power the commissioner
after examining the
fairness of the sanction imposed by the applicant reached the
conclusion that the sanction was unfair. In this
regard the
commissioner took into account the fact that the employee had 16
years of a clean disciplinary record. It is also apparent
from the
record that the commissioner rejected the version of the applicant
that the diskettes were in the bag of the employee.
In other words
the breach of the rule was not accompanied by an act of dishonesty.
Implicit in this finding is that the applicant
did not proof the
element of dishonesty which if proven would have compelled the
commissioner to arrive at a different conclusion
in his assessment of
the appropriateness of the sanction.
[30] In the absence of
proof of dishonesty and having regard to the facts and circumstances
of this case, I do not belief that it
can be said that the decision
of the commissioner was unreasonable.
[31] The issue of Iscor
having indicated that it no longer wish to have the employee on their
premises does not in view have any
bearing on the reasonableness of
the decision of the commissioner. There was no evidence in this
regard that indicated that the
employment of the employee was subject
to him being placed at Iscor and not at any other side of the
applicant.
Conclusion
[32] In my view the
applicant has failed to show that the sanction which it had imposed
was fair and therefore failed to establish
a basis upon which this
Court could interfere with the decision of the commissioner.
Accordingly the application stands to be dismissed.
I see no reason
why the cost should not follow the results.
[33] In the premise the
application to review and set aside the arbitration award of the
second respondent dated 20 May 2006 and
issued under case number GAJB
8996-05 is dismissed with costs.
___________________
Molahlehi
J
Date
of Judgment: 29 APRIL 2008
Date
of Hearing: 05 December 2008
APPEARANCES
For
the Applicant: D J GREYLING INC
For
the Respondent: C/O ALLARDYCE & PARTNERS