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[2010] ZALCD 5
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Tiger Brands v CCMA and Others (D288/09) [2010] ZALCD 5 (26 July 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
CASE
NO. D288/09
NOT
REPORTABLE
In
the matter between:
TIGER
BRANDS
Applicant
and
CCMA
First
Respondent
COMMISIONER
SAROJINI
BALKARAN
Second
Respondent
IVAN
JASPER
DAVID
Third
Respondent
JUDGMENT
GUSH,
J.
1.
In this matter the Applicant seeks to have
the award of the Second Respondent reviewed and set aside. At the
conclusion of the Arbitration
the Second Respondent found that the
Applicant’s decision to dismiss the 3
rd
Respondent on the 26
th
August 2008 was unfair and ordered that the Applicant reinstate him
retrospectively from the 1
st
December 2008, pay to the 3
rd
Respondent the amount of R30,887.24 in respect of arrear salary and
declared that the 3
rd
Respondents service with the Applicant was to be regarded
as unbroken service.
2.
The background to and the facts surrounding
the 3
rd
Respondents dismissal were as follows:
2.1.
At the time of his dismissal the 3
rd
Respondent had been employed by the Applicant for 26 years as a
storeman.
2.2.
On the 20
th
August 2008 an incident took place between the 3
rd
Respondent and a fellow storeman, Mudaly, who had been employed by
the Applicant for 21 years. It was this incident that ultimately
lead
to the Applicants dismissal.
2.3.
The 3rd Respondent and his colleague were
not on good terms and had previously been involved in heated
exchanges. In his evidence
Mudaly initially said that he had had a
normal working relationship with the 3rd Respondent. However he
subsequently conceded that
there had been tension between them and
that about two weeks prior to the incident the 3rd Respondent had
complained to his manager
that he, Mudaly, had disrespected the 3rd
Respondent. This had resulted in the Applicant’s unit manager,
Pillay, meeting
with both 3rd Respondent and Mudaly in an attempt to
mediate and resolve their dispute.
2.4.
Under cross examination Mudaly also
conceded that two days prior to the incident he had had a verbal
altercation with the 3rd Respondent
over the phone. (“we
exchanged words”)
2.5.
On the day in question 3rd Respondent had
phoned Mudaly to enquire about sugar usage figures. Mudaly explained
he advised 3rd Respondent
that it was his responsibility to calculate
the figures and that the requisition he needed to do so was still in
his office as
the 3rd Respondent should have but had not fetched it.
His evidence was that he felt that the 3rd Respondent “was a
bit abrupt
so [he] put the phone down” and processed the
requisition himself.
2.6.
The 3rd Respondent evidence was that he had
as a result of this telephone conversation then decided to go to
Mudaly’s store
and fetch the document. He was clearly annoyed
at what had transpired. The 3rd Respondent’s evidence was that
when he arrived
at the store he had argued with Mudaly which argument
had become heated. Mudaly however said that when he arrived at the
store
the 3rd Respondent was enraged.
2.7.
What is noteworthy is that the versions of
Mudaly and the 3rd Respondent regarding what transpired during the
incident are remarkably
similar.
2.8.
Mudaly’s evidence was as follows:
“
[3rd
Respondent was] “
very angry
…
I told him to go go
…
started
swearing at me
…
He
said he’ll fuck me up and he‘ll tell my mother, and he
will tell Rhyno (
his manager
),
he’s not worried, he don’t fright
(sic)
for anyone.
…
Then he swore my mother’s poes
(sic)
and
he walked towards me.
…
He
came with his clutched
(sic)
fist,
pushed my face down.
…
He
pushed me … and when he got to the door he said he would catch
me outside, its not finished yet , he’ll fuck me
up outside”
2.9.
The 3rd Respondent’s version was:
“…
he
said go go go from here… his tone was high he said get out of
my office … At the end of the argument, he picked
his hand
(sic)
so
he leaned forward and I just pushed him and I said ‘I’ll
sort you out outside … it was in the heat of the
moment…
we were exchanging words … I was swearing … then the
situation got heated up… I pushed with
the back of my hand”
2.10.
Mudaly’s evidence of what transpired
after the incident is indicative of how seriously Mudaly regarded the
incident and the
extent to which he felt intimidated. He explained
that he had reported to his manager, complaining that he didn’t
“
expect someone to swear on my
mother’s poes early in the morning”.
His
manager had asked for an explanation of what had happened. Thereafter
Mudaly was told to report the incident to “HR”,
he had
initially refused to do so as he wanted his manager to sort it out
between him and 3rd Respondent, but was told to report
which he then
reluctantly did. Mudaly explained that he wanted his complaint to be
dealt with informally without having to suspend
3rd Respondent. He
had wanted the matter resolved without the 3rd Respondent being
suspended or fired. He had in fact later attempted
to withdraw his
complaint.
2.11.
3rd Respondent was charged with misconduct
viz.
Charge:
1. ASSAULT
in that on the 20
TH
August 2008 at about 06H25 you physically assaulted a fellow employee
in the Candy Stores office which is in contravention of company
policy and/or rules.
INTIMIDATION
in that on the 20
TH
August 2008 at about 06H25 you verbally intimidated a fellow employee
by stating that you would catch him outside the company premises
which is in contravention of company policy and/or rules.”
2.12.
3rd Respondent pleaded guilty to the
misconduct at the disciplinary hearing that followed.
2.13.
At the conclusion of the disciplinary
enquiry the 3rd Respondent was found guilty and was dismissed by the
Chairperson of the enquiry
who found that he had no choice but to
apply the Applicant’s rules which he held required him to
dismiss for assault on the
strength that there was precedent for
dismissal in similar circumstances.
2.14.
The Applicant’s “
Rules
and Notes on Severity ... Guidelines for Sanction”
indicate under the heading “
Assault
and/or Intimidation”
that the
recommended sanction for “
Assault
and /or fighting”
is summary
dismissal, but for “
Less serious
assault (e.g. a push)”
a final
written warning is the suggested sanction. There was no explanation
given why the recommended lesser sanction was not imposed.
2.15.
The 3rd Respondent appealed against the
sanction on the grounds that the decision to dismiss him was too
harsh. His appeal against
his dismissal was unsuccessful also on the
on the grounds that the Applicant’s rules provided for summary
dismissal.
2.16.
The 3
rd
Respondent then referred a dispute regarding his unfair dismissal to
the 1
st
Respondent again on the grounds that the sanction imposed on him was
unfair and too harsh.
3.
The Applicant complains that the 2
nd
Respondent’s award declaring the Applicant’s decision to
dismiss 3
rd
Respondent was unfair is not “
that
of a reasonable and objective decision maker
was unjustifiable in relation to the
reasons advanced and that accordingly the 2
nd
Respondent exceeded her powers
…
and committed a gross irregularity
including making mistakes of law, resulting in her misconceiving the
nature of the
enquiry
…”
4.
A further ground of review concerned the
2
nd
Respondent’s decision to disregard a statement of an erstwhile
employee. At the arbitration the parties had included in their
bundle
of documents a statement by one Devi Ramjogi. Ramjogi had witnessed
the incident but was not called to give evidence by
either party. The
Applicant wished to rely on the statement and at the end of the
arbitration gave notice of its intention to apply
to reopen its case
to deal with this statement. This application was not pursued and the
Applicant argued that the statement should
nevertheless be “accorded
full evidentiary weight”.
5.
In her award the 2
nd
Respondent considered the admissibility of the statement and
concluded that she could not place any reliance on the statement.
6.
The Applicant argued that the 2
nd
Respondent’s reasons in deciding that she could not place
any reliance on the statement of Ramjogi amounted to a failure
on her
part to properly apply the criteria enumerated in Section 3(1)(c) of
the Law of Evidence Amendment Act 45 of 1998. Consideration
of the
2
nd
Respondents award the award shows that she carefully considered the
statement and in did in fact take into account the said criteria
in
exercising her discretion. It is clear from the record and the facts
that there was no explanation as to why Ramjogi did not
give evidence
(save that he had been dismissed by the Applicant) and that the
statement was at odds with the versions of the so
called intimidation
given by both Mudaly and 3
rd
Respondent. There is nothing to suggest that the rejection of the
statement by the 2
nd
Respondent is in any way irregular or reviewable.
7.
As far as the charge of intimidation is
concerned the Applicant averred that the 2
nd
Respondent erred in failing to pay due regard to the importance of
this issue. 2
nd
Respondent considers in some the import of this charge in her
analysis of the evidence and quite justifiably concludes that in
the
absence of any reference thereto by the chairperson of the
disciplinary enquiry and having regard to the evidence did pay due
regard to the charge of intimidation. The charge was specific viz.
that 3
rd
Respondent “
you verbally
intimidated a fellow employee”.
There is no evidence that Mudaly felt intimidated. In his statement
he did not make any reference to being intimidated and In fact
his
evidence suggests that he was not in any way at all intimidated. His
evidence as to his initial complaint, his reluctance to
formally
report the matter and his attempts to withdraw the complaint do not
justify a finding that he was intimidated.
8.
As far as the appropriateness of the
sanction is concerned the Applicant relied mainly on what it
described as an error on the part
of the 2nd Respondent in that she
took into account Mudaly’s actions surrounding the incident.
There is nothing in the record
to justify this conclusion. The
evidence clearly suggests that the misconduct was the result of a
spat between two colleagues precipitated
by the telephone
conversation which culminated in Mudaly putting the phone down on the
3rd Respondent.
9.
Regarding the consistent application of the
Applicant’s
Rules and Notes on
Severity ... Guidelines for Sanction”
it is relevant that Mudaly described the “assault” both
in his statement and in his evidence at the arbitration as
having
been “
pushed”.
This description not only accords with the 3rd Respondent’s
evidence but importantly with the definition of “Less serious
assault (e.g. a push)” as set out in the Applicant’s
“Rules and Notes on Severity...Guidelines for Sanction”
where the recommended sanction is a final written warning. There is
absolutely no evidence to support a finding that it was a serious
assault. The Applicant not call the chair of the disciplinary hearing
to explain his reasoning and adduced no evidence to substantiate
why
it had been necessary to deviate from the recommended sanction.
10.
I am not satisfied that the finding of the
2
nd
Respondent that the sanction was inappropriate is reviewable. It is
abundantly clear from the evidence of both Mudaly and 3
rd
Respondent that their relationship was strained e.g. they had “had
words” some two or less days prior to the incident.
Mudaly
conceded that his conduct on the morning in question
viz
putting he phone down on 3rd Respondent could have angered him.
Mudaly’s view of how seriously he took the incident
is
demonstrated in his evidence that after the incident his first
concern was that 3rd Respondent had insulted his mother. His
view
that the matter could be resolved through their managers informally
does not suggest that he had felt particularly threatened
intimidated
or seriously assaulted. His evidence certainly does not support the
conclusions reached by the Applicant’s disciplinary
and appeal
committees regarding the seriousness of the matter and in particular
it certainly does not justify their view that they
were required by
the Applicant’s “
Rules
and Notes on Severity ... Guidelines for Sanction”
to impose a sanction of dismissal.
11.
The evidence adduced surrounding the
consistency issue did not support the averment that the findings of
the 2
nd
Respondent were reviewable. That evidence was more in keeping with a
practice that minor incidents involving pushing were visited
with a
sanction less than dismissal. The evidence the Applicant lead at the
arbitration concerning consistency simply confirmed
that where a push
was involved dismissal was not the sanction imposed but rather, as
recommended, a written warning was imposed.
12.
The circumstances surrounding the
incident, the fact that the 3
rd
Respondent had pleaded guilty at the disciplinary hearing and had 26
years service certainly supports the 2
nd
Respondent’s conclusion that the 2
nd
Respondent’s finding that the sanction was inappropriate and
unfair.
13.
In the circumstances I am not
persuaded as averred by the Applicant that the 2
nd
Respondent’s award was not reasonable and objective, nor that
her decision was “unjustifiable” in relation to
the
reasons given for it.
14.
I accordingly dismiss the Application with
costs.
GUSH,
J
Date
of Hearing: 9
th
June 2010
Date
of Judgment: 26th July 2010.
Appearances:
For the Applicant:
Advocate Swain
,
instructed by
Macgregor Erasmus Attorneys
;
For the Respondent:
R.B. Donnachie; Henwood
Britter and Caney