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[2009] ZALCJHB 68
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Super Group Autoparts t/a Autozone v Hlongwane NO and Others (JR91/09) [2009] ZALCJHB 68 (18 December 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NUMBER: JR 91/09
In
the matter between:
SUPER
GROUP AUTOPARTS t/a AUTOZONE
Applicant
and
HLONGWANE
NO, RAYMOND
First
Respondent
DISPUTE
RESOLUTION CENTRE OF THE
MOTOR
VEHICLE BARGAINING COUNCIL
Second
Respondent
UMEWUSA
obo ALLAN SIKHAKHANE
Third
Respondent
JUDGEMENT
NGALWANA
AJ
Introduction
[1]
This is an application for the review and setting aside of an
arbitration award made by the first respondent on 17 December
2006
under case number MINT 14156N and under the auspices of the second
respondent.
[2]
The first respondent found that Mr Sikhakhane had been substantively
unfairly dismissed. The basis for this finding was
that the
applicant had failed to acquit itself of the onus to prove that the
reason for which it had terminated Mr Sikhakhane’s
employment
was a fair one.
[3]
The applicant seeks the review and setting aside of that decision on
numerous grounds which include that
[3.1]
the first respondent ignored Sikhakhane’s evidence in
cross-examination that the applicant’
s
only witness (Fouche) did not get on well with any of the drivers;
[3.2]
the first respondent failed to take into account the heads of
argument filed on behalf of the applicant
in relation to the
substantive aspects of the dismissal;
[3.3]
the first respondent erred in accepting Sikhakhane’s version
over that of Fouche by reason only of
Fouche not having put up
corroborating evidence;
[3.4]
the first respondent failed to consider the applicant’
s
version as regards the time at which the instruction was given to
Sikhakhane, preferring Sikhakhane’s version of 10h15 over
that
of Fouche’s 12h45
;
[3.5]
the award of retrospective reinstatement in light of the seriousness
of the charges preferred against Sikhakhane
is “a harsh
remedy”;
[3.6]
in deciding to accept Sikhakhane’s version over that of Fouche
by reason only of the absence of corroborating
evidence for Fouche’s
version the first respondent committed a gross irregularity or
reached an unreasonable and unjustifiable
conclusion;
[3.7]
the first respondent generally misapplied his mind, exceeded his
powers, and reached unreasonable and irrational
conclusions.
Common
Cause Facts
[4]
The following facts, to the extent immediately relevant, are common
cause:
[4.1]
Sikhakhane was employed by the applicant as a driver from October
2004 earning R2 500 per month;
[4.2]
In October 2007 he was given a final written warning for reckless
driving or speeding (or something of that
sort) in the course and
scope of his employment as a driver for the applicant;
[4.3]
In May 2008 he was instructed by Fouche to retrieve a parcel from a
company some 20km away from the applicant’s
premises where he
was at the time;
[4.4]
He refused to carry out the instruction and gave an explanation for
his refusal;
[4.5]
A disciplinary hearing was held in his absence and he was dismissed
on 22 May 2008;
[4.6]
He did not appeal against the finding and sanction.
Facts
in Dispute
[5]
The following are disputed facts between the parties (again, to the
extent immediately relevant):
[5.1]
that Sikhakhane assaulted or threatened to assault Fouche on 8 May
2008;
[5.2]
that Sikhakhane used foul language toward Fouche on 8 May 2008;
[5.3]
that Sikhakhane’s reason for refusing to carry out Fouche’
s
instruction was Fouche’s refusal to give him a written
undertaking that he (Sikhakhane) would not be in trouble if he were
caught speeding again in an attempt to carry out Fouche’s
instruction (since Sikhakhane already had an existing final written
warning for that offence);
[5.4]
that Sikhakhane would have carried out the instruction if Fouche had
given him a written undertaking that
he (Fouche) would take
accountability if Sikhakhane were caught speeding again in compliance
with Fouche’s instruction;
[5.5]
that Fouche’s instruction was given at 10h15 and not 12h45 (and
vice versa);
[5.6]
that the applicant refused to release a witness that could have
testified for Sikhakhane at the arbitration
proceedings and refused
to provide the forwarding details of those that had left the company.
The
Review Standard
[5]
Section 145 of the Labour Relations Act, 66 of 1995 (“the LRA”)
on which the applicant relies for this review application
requires
that it proves one of four grounds of review. These are
[5.1]
misconduct on the arbitrator’s part in relation to his duties
as an arbitrator;
[5.2]
gross irregularity in the conduct of arbitration proceedings;
[5.3]
ultra vires
conduct by the arbitrator in the exercise of his powers and
[5.4]
an improper obtaining of the award.
[6]
On a
conspectus
of all the cases, however, it seems to me the permissible grounds of
review are wider than those set out in section 145 of the
LRA and can
perhaps be reduced to this: for the applicant to succeed the decision
must be shown to be irrational (in the sense
that it does not accord
with the reasoning on which it is premised or the reasoning is so
flawed as to elicit a sense of incredulity)
and unjustifiable in
relation to the reasons given for it (
Crown
Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp NO
(2002)
23
ILJ
863
(LAC) at paragraph [19];
Shoprite
Checkers (Pty) Ltd v Ramdaw NO and Others
(2001)
22
ILJ
1603
(LAC) at paragraph [26];
Carephone (Pty)
Ltd v Marcus NO and Others
(1998) 19
ILJ
1425
(LAC) at paragraph [37];
Pharmaceutical
Manufacturers’ Association of SA and Others: In re Ex Parte
Application of the President of the RSA and Others
[2000] ZACC 1
;
2000
(3) BCLR 241
(CC)).
[7]
More recently, the Constitutional Court has pronounced that “the
better approach” is to enquire whether the decision
reached by
the commissioner is one that a reasonable decision-maker (presumably
faced with the same evidence) would not reach (
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007)
28 ILJ 2405 (CC), at paragraph [110]).
[8]
It is not the reviewing court’s task to consider whether or not
the decision is correct in law as that would be an appeal
(
Minister
of Justice and Another v Bosch NO and Others
(2006)
27
ILJ
166
(LC) at paragraph [29]).
[9]
In my respectful view the “constitutional standard” now
propounded by the Constitutional Court in
Sidumo
bears a striking resemblance to the test usually applied in
applications for leave to appeal, the only difference being the
substitution
of “a reasonable decision-maker” for the
higher court or another court. The danger is thus the blurring
of the
line between an appeal on the merits, on the one hand, and a
review based on the rationality and justifiability of the decision
when regard is had to the evidence advanced on the other. It is
hoped that the reasonableness standard now introduced by
the
Constitutional Court will in future be tightened to ensure there is
no confusion as regards the extent to which reasonableness
of the
commissioner’s decision may be tested.
Applying
the Standard
[10]
It seems to me the proper approach is to ask not whether the
commissioner’s decision is one that a reasonable court (or
reasonable decision-maker) could not reach but rather whether, in
light of the evidence advanced and having due regard to
considerations
of equity (after all, the Labour Court is primarily an
equity court), the commissioner’s decision is one that can
properly
be said to be reasonable. Thus phrased, the standard
avoids a review enquiry that leads inexorably to entanglements in
appeal
territory.
[11]
This in my respectful view is not so much an exercise in substituting
this court’s own standard for that of the Constitutional
Court,
as it is an attempt at giving the constitutional standard a
construction that eschews the blurring of the line between reviews
and appeals.
[12]
It was argued on behalf of the applicant that the first respondent
misdirected himself in resolving the matter by having regard
to the
question of onus. If I understood the submission properly it seems to
be this: the first respondent should have accepted
the version of
Fouche over that of Sikhakhane for two reasons. First, no adverse
credibility findings were made against Fouche.
Second, Sikhakhane’s
version was contradictory.
[13]
Well, as regards the first basis for the submission, there were no
adverse credibility findings against Sikhakhane either.
So there we
are. As regards the second, I could find no material contradictions
in the evidence of Sikhakhane of the kind that
would render his
evidence implausible or bereft of any credibility. In fact, it is the
version of Fouche that in my view readily
lends itself to that
difficulty.
[13.1]
He says no-one witnessed the altercation between him and Sikhakhane.
Yet he does not dispute that
there were a number of people in the
vicinity at that time whom he say were within 10 meters of where the
event was taking place.
[13.2]
He says Sikhakhane was “angry” and “aggressive”
when he said to him he (Fouche)
must get his face “out of his
f*** face”. Yet he says Sikhakhane did not raise his voice
enough for people only 10
meters away to hear him.
[13.3]
He says Sikhakhane assaulted or threatened to assault him. Yet he
also says Sikhakhane was sitting
down at the time of this alleged
attempted assault.
[13.4]
He says his instruction to Sikhakhane was reasonable, yet his
explanation for Sikhakhane’s
refusal to carry it out (namely,
attending to his private vehicle in the parking lot) seems far
fetched. Sikhakhane’s version
seems more plausible.
[14]
Section 192(2) of the LRA places onus on the employer to prove that
the reason for dismissal was fair. The applicant failed
to satisfy
that onus. Sikhakhane had nothing to prove, apart from the fact that
he was dismissed. Thus, the fact that he did not
call any witnesses
to corroborate his version of what had happened on that 8 May 2008 at
the applicant’s premises is of no
moment in the circumstances
of this case. The applicant had all to prove. It proved nothing that
could help it ward off the relief
that the first respondent
eventually awarded to Sikhakhane.
[15]
The applicant has also failed in this court to show that the decision
of the first respondent is not one that a reasonable
decision-maker
could reach.
[16]
As regards the appropriateness of the re-instatement, the applicant
did not once allege that the working relationship between
Sikhakhane
and management of the applicant had irretrievably broken down. Fouche
simply made a bald allegation (impermissibly led
by his
representative) that the trust relationship had irretrievably broken
down. Nothing by way of empirical evidence of this
was advanced.
There is in any event no evidence that the alleged assault even
occurred. The whole thing seems dreamt up by Fouche
for whatever
reason.
[17]
I should mention,
en passant
,
that following the decision of the Constitutional Court in
Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC)
, power
relations (or bargaining power) between the parties in matters of the
kind with which we are here concerned are a relevant
consideration in
determining fairness. On evidence, Fouche seems to have accorded to
himself the unchallengeable power to issue
instructions that must be
obeyed regardless of consequences to the subordinates for whom the
instruction is intended. A court cannot,
in my view, ignore the power
dynamics in those circumstances and hope still to arrive at a
decision that is fair and reasonable.
[18]
In these circumstances, the application must fail. Since there was no
opposition, no costs order is warranted.
____________________
Ngalwana
AJ
Appearances
For
the applicant:
Mr Ascot
Instructed
by:
Fluxmans Incorporated
Date
of hearing:
15
December 2009
Date
of judgment:
18 December 2009