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[2009] ZALCJHB 51
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Brandt v Ramotshela and Others (JR481/09) [2009] ZALCJHB 51 (18 December 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN BRAAMFONTEIN
CASE
NO: JR: 481/09
In
the matter between:
BRYN
MARK BRANDT
Applicant
and
THE
COMMISSIONER: MATTHEWS
RAMOTSHELA
1
st
Respondent
COMMISSION
OF CONCILIATION,
MEDIATION
AND ARBITRATION
2
nd
Respondent
WEIR
WARMAN
3
rd
Respondent
JUDGMENT
GCABASHE AJ
Introduction
1.
This application for review, brought in
terms of
section 145
of the
Labour Relations Act 66 of 1995
, seeks to
have the award of the First Respondent (the Commissioner) reviewed on
the basis that, considering the facts placed before
the Commissioner,
in his award he unduly deferred to the Third Respondent’s
judgment. In the result and in the context
of the evidence led,
the decision of the Commissioner fell far short of the required
standard of rationality and reasonableness.
2.
In brief, the background to the dismissal
of the Applicant is that he was employed by the Third Respondent as a
Service Centre supervisor
at its Rustenburg branch for a period of
approximately 15 months. The Third Respondent is in the
business of manufacturing,
assembling and repairing slurry pumps.
3.
The dispute thus concerned the Applicant’s
knowledge and understanding of the standard procedures applied in the
management,
recordal and maintenance of stock levels. The
evidence of the Third Respondent was that he failed dismally to
perform in
terms of the required standard, essentially because he did
not follow available guidelines in the form of the procedures which
were applied at all branches of the company.
4.
More specifically, the testimony of the
Third Respondent’s witnesses was that the Applicant’s
misconduct arose from
the grossly negligent manner in which he
conducted the business by failing to apply company procedures in the
opening of job cards,
the processing of waybills, the processing of
proof of delivery documents, the allocation of parts for invoicing,
warranty claims
and job packs.
5.
The Third Respondent further alleged that
seniority of the Applicant as the service centre supervisor required
him to be familiar
with the set procedures. A material factor
in the Third Respondent’s case was the allegation that as a
result of the
Applicant’s negligence in not maintaining proper
records of the correct stock levels, it had suffered a loss of
approximately
R1 million.
6.
In challenging his dismissal, the
Applicant’s first ground of review highlighted procedural
irregularities. He alleged that
the Commissioner failed to recognise
that he, as a lay inexperienced individual, required guidance
regarding the format of the
proceedings, the presentation of his
case, assistance in distilling what constituted submissions as
opposed to evidence, how to
deal with the relevance of documentary
evidence and the manner in which to place that evidence on record.
In the result the
gravamen of the Applicant’s complaint was
that the Commissioner failed to ensure that the arbitration
proceedings were conducted
in a manner that was fair and proper.
7.
With regard to substantive matters, the
Applicant has taken issue with the Commissioners reliance on the
version of the Third Respondent,
and the acceptance by the
Commissioner of the version put up by the Third Respondent. The
charge, in a nutshell is that the
Commissioner failed to consider the
evidence of the Applicant or to accord due weight to it, despite its
probity, and as a result,
the decision taken was not rational or
justifiable.
8.
The Applicant disputed the allegations of
the Third Respondent, averring that he had managed his area of
responsibility on the basis
of the procedures and practices he had
found in operation. He submitted that the manner in which the
control of stock was
monitored and processed at the Rustenburg branch
of the Third Respondent’s business was no different to the
manner in which
all the other branches were operating.
9.
In indicating to the Commissioner that the
allegations of misconduct were unfounded, and that he exercised due
care in the management
of the Third Respondent’s business, he
challenged the material allegations of the Third Respondent that,
inter alia
,:
9.1
he had failed to follow standard
procedures, contending that when sent for on the job training at the
Witbank branch the procedures
followed were exactly the same as those
of the Rustenburg branch;
9.2
adequate training and support had been
provided both to him and his staff, contending that such training was
sporadic, inconsistent,
and not commensurate with the requirements of
the business;
9.3
he was responsible for the loss of R1.2
million rand, submitting that prior to his employment, similar losses
had been experienced
by the company not only at the Rustenburg branch
but at other branches as well; submitting that the stock transfer
from his service
centre to the sales warehouse without a stock take
being conducted impacted on the loss of R1.2 million. He
alleged that
the decision and execution of this stock transfer that
occasioned the R1 million loss was done under the authority of the
Rustenburg
branch manager, one Kevin Green, and Wilkus Alberts the
manager for the Southern African region;
9.4
the Applicant failed to provide order
numbers for site work requested by a customer, yet the Third
Respondent admitted that with
site work (or field service) there are
occasions that order numbers are not provided because “request
for quote” numbers
are utilised instead.
The
Commissioner’s findings
10.
Three broad reasons are advanced by the
Commissioner for accepting the veracity of the Third Respondent’s
witness that:
10.1
the Applicant’s conduct caused
the R1.2 million loss suffered by the company;
10.2
the Applicant was fully trained in the
requisite procedures, was fully aware of them, yet failed to conduct
himself in terms thereof;
10.3
there was sometimes a 100% compliance with
the procedures which compliance supported the assertion by Third
Respondent that the
Applicant was fully aware of the correct
procedures to be followed.
11.
On the basis of these findings, the
Commissioner was satisfied that on a balance of probabilities there
existed a valid reason for
dismissing the Applicant.
The
obligation that rests on a Commissioner
12.
The decisions of a Commissioner are
administrative in nature. Consequently, the right to just
administrative action, along
with all the other rights in the Bill of
Rights, must be accorded to parties to the arbitration processes of
the CCMA. Administrative
action must be justifiable in relation
to the reasons advanced for the decision taken. Procedural
fairness, including procedural
fairness during the arbitration
process is and antecedent and often an integral element to
substantive fairness.
13.
In
my view these procedural aspects form part of the assessment of how
reasonable the decision taken by the Commissioner was, given
the
standard discussed in the
Carephone
[1]
judgment. This formulation of the criteria to assess the
reasonableness of a decision has been extended and applied in various
judgments, including
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
,
as well as
Fidelity
Cash Management Service v CCMA & Others
[3]
.
14.
Zondo
JP in analysing the obligations that rest on a Commissioner faced
with establishing whether a dismissal is fair or unfair,
referred in
the
Fidelity
Cash Management Services
[4]
matter to the
Sidumo
judgment, stating that a Commissioner “must:
(a)
take into account the totality of
circumstances; (paragraph 74)
(b)
consider the importance of the rule that
had been breached; (paragraph 78);
(c)
consider the reason the employer imposed
the sanction of dismissal, as he or she must take into account the
basis of the employee’s
challenge to the dismissal;
(d)
consider the harm caused by the employee’s
conduct;
(e)
consider whether additional training and
instruction may result in the employee not repeating the misconduct;
(f)
consider the effect of dismissal on the
employee;
(g)
consider the employee’s service
record”
Analysis
of the basis for the Commissioner’s award
15.
The essential question is whether the award
of the Commissioner is reasonable given the material made available
to the Commissioner
during the arbitration. When viewed against the
Sidumo
criteria set out above, I come to the ineluctable conclusion that the
Commissioner failed to meet the standard of reasonableness
and
rationality in the decision taken in this matter.
16.
The Commissioner failed to take into
account the totality of the evidence placed before him or to properly
consider the basis of
the employee’s challenge to the
dismissal. He was most unhelpful in ensuring that the evidence
that the employee, who
incidentally was unrepresented and a complete
lay person, wished to place on record was properly ventilated and
responded to by
the employer. On a number of occasions, instead of
giving guidance to the employee, he actually prevented the employee
from pursuing
a particular line of questioning.
17.
He relied on evidence that he regarded to
be unchallenged and conclusive in circumstances where the probity and
veracity of that
evidence had been put into question. An
illustration of this is the finding that the Applicant was fully
trained on how to
correctly apply the procedures. The
Commissioner attributed the responsibility for the R1.2 million loss
sustained by the
Third Respondent exclusively to the Applicant,
despite evidence of the possible impact of the stock transfer, or the
fact that
there appeared to be systemic issues in the Third
Respondent’s business that led to annual losses of this nature.
18.
Though there was evidence of a lack of
training placed before the Commissioner, there was no consideration
of whether additional
training might not assist the Applicant in
avoiding similar difficulties at the workplace. The effect on
the Applicant of
a dismissal was not considered, nor was his service
record, despite evidence of complimentary comments from his employer.
19.
The
Applicant has raised concerns with regard to both the substantive and
procedural fairness of the arbitration process.
The Court in
Carephone
(Pty) Ltd v Marcus NO and Others
[5]
expressed this constitutional principle by stating in relation to
section 33 of the Constitution that:
“
The
constitutional imperatives for compulsory arbitration under the LRA
are thus that the process must be fair and equitable; that
the
arbitrator must be impartial and unbiased; that the proceedings must
be lawful and procedurally fair; that the reasons for
the award must
be given publicly and in writing; that the award must be justifiable
in terms of those reasons; and that it must
be consistent with the
fundamental right to fair labour practices.”
20.
I have taken into consideration the
possibility that the procedural fairness issue raised and the
substantive merits of this case
are so intricately linked that the
procedural unfairness of the process, which is material to a just
outcome, has resulted in a
fundamentally tainted and flawed decision
on the merits by the Commissioner.
21.
As
stated in the
Fidelity
Cash Management Service
[6]
case, in relation to an assessment of the totality of the evidence
before a Commissioner but not necessarily relied on by that
Commissioner in the making of the award:
“
In
many cases, the reasons that the commissioner gives for his decision,
finding or award will play a role in the subsequent assessment
of
whether or not such decision or finding is one that a reasonable
decision-maker could or could not reach. However, other
reasons
upon which the commissioner did not rely, to support his or her
decision or finding but which render the decision reasonable
or
unreasonable, can be taken into account
”.
22.
I have considered all the material that was
properly before the Commissioner and concluded that he committed a
gross irregularity
with regard to the conduct of the arbitration
proceedings.
23.
I am of the view that had the Commissioner
applied his mind to the totality of the evidentiary material properly
placed before him,
he would have come to the conclusion that the
Applicant’s dismissal was substantially unfair. He drew
conclusions that
were not supported by evidence, ignored material
evidence, and simply failed to appreciate material aspects of
evidence placed
before him. A different Commissioner could come
to a decision, on the facts of this case, and conclude that the
dismissal
was substantially unfair. It is in the interests of
both the Applicant and the Third Respondent that this matter be
re-heard.
24.
In the premises I make an order setting
aside the award dated 28 January 2009 and refer the dispute back to
the CCMA for the hearing
to resume
de
novo
.
25.
I make no order as to costs.
_________________
GCABASHE AJ
18 december
2009
[1]
Carephone
(Pty_ Ltd v Marcus NO and Others
1999 (3) SA 304
at 312 para [19]
[2]
2008
(2) SA 24 (CC)
[3]
[2008]
3 BLLR 197
LAC
[4]
Ibid
p. 224 para [94]
[5]
Supra
-1999 (3) SA 304 at 312 para [19]
[6]
Supra
at p. 226 H-I