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2011
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[2011] ZALCJHB 21
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Telkom Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR 1538/09) [2011] ZALCJHB 21 (23 March 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case number: JR 1538/09
In the matter between:
TELKOM LTD
…...........................................................................
Applicant
And
THE CCMA
….......................................................................
1
st
Respondent
COMMISSIONER PD FINE
….............................................
2
nd
Respondent
SOLIDARITY obo BOTHA
…............................................
3
RD
Respondent
Judgment
Molahlehi J
Introduction
This is an application to review and set aside the
arbitration award issued under case number GAJB 5821-09. In terms of
that arbitration
award the second respondent (the commissioner)
found that the dismissal of the third respondent, who for ease of
reference I
shall in this judgment refer to as “the employee,”
have been procedurally fair but substantively unfair. It was for
that reason that the commissioner ordered that the employee be
reinstated.
The late filing of the review application was not
opposed by the respondents. I see no reason why condonation for the
late filing
of the review application should not be granted.
The background facts
The employee was charged with misconduct concerning the
assault on another employee, the complainant, who was employed as a
contract
cleaner by another company. Again for ease of reference I
will in this judgment refer to Ms Matodzi as “the
complainant.”
The employee was found guilty and dismissed for
that reason. After the decision of the disciplinary enquiry the
employee launched
an internal review of the decision to dismiss him.
The internal review confirmed the dismissal.
In her testimony in support of the case of the
applicant, the complainant testified that on the day of the alleged
assault and
in the morning thereof she was busy cleaning the
restroom when she heard the mop falling outside the door. Her
investigation
revealed that it was the employee who caused the mob
to fall, she then bend down to pick it up. According to her she
suddenly
felt a kick from behind as she bent down to pick the mop
up. She was kicked by the employee and when she enquired why he was
kicking her, the employee simply laughed and walked away.
The complainant further testified that when she
reported the matter to Mr Dawie Olivier, she was told that the
employee denied
kicking her and that he said what he kicked was the
mob.
The applicant then went to see the doctor as she was in
pains. The doctor having heard what happened advised the complainant
to
report the incident to the police. After examining her, the
doctor noted the injuries she had sustained as a result of the
alleged
assault.
The complainant opened a case of assault with the
police and the employee was prosecuted in the magistrate court. He
pleaded guilty
to the charge of assault with the intent to do
grievous bodily harm and was sentenced to a fine of R500-00 or (8)
eight months
imprisonment. A further (12) twelve months imprisonment
was suspended for (5) five years. He was also declared unfit to
possess
a firearm.
The second witness of the applicant was Dr T.T.
Setshogoe who testified that she had examined the complainant during
October 2008.
According to the doctor the complainant could not walk
properly and was in a lot of pain. The doctor further testified that
there
were soft tissues and lower abdomen tenderness that were
consistent with damage caused by a blunt instrument.
The case of the third respondent
In his defense the employee testified, that on the day
in question he went into the ladies rest rooms and when he came out
he
tripped over the mop. At that point the complainant came out of
the restroom and bend over to pick up the mop “
he touched
her bum with his shoe and said “Ek sal jou sommer skop op jou
boud”.
After the incident he left the workplace but was later
called by someone who required him to explain what happened in the
restrooms.
He was also required to submit a written statement which
he did the following day. According to him he would have apologized
to the complainant had she been at work the following day.
He was thereafter arrested and released on a R1000 bail
the next morning. At the criminal court hearing he pleaded guilty
because
he was advised to do so by his attorney. He also testified
that he had a good relationship with the complainant.
Grounds for review
The applicant contended that the commissioner failed to
apply his mind to the relevant facts which were before him and that
his
arbitration award is full of speculation and conjecture. The
applicant also complains that the commissioner:
made factual findings not supported by any evidence.
disregarded the direct evidence of the doctor on the
injuries sustained,
disregarded the evidence that he was found guilty in a
court of law on assault with intend to do grievous bodily harm.
Commissioner’s arbitration award
As indicated earlier the commissioner found that the
applicant had followed a fair procedure in dismissing the third
respondent
but that the dismissal was substantively unfair and for
that reason ordered the employee be reinstated. In his finding about
the substantive unfairness of the dismissal the commissioner says
that:
“
5.2.1. It is in this area of whether the
actions of Mr Ertjies Botha warranted dismissal which is more
complex.
5.2.2 It is common cause that the Applicant did
“kick” Ms Matodzi on 7 October 2008. The question to be
asked is whether
it indeed was (sic) “assault” and
whether dismissal was the correct sanction.
5.2.3 I found certain aspects of the Respondents case
questionable. Ms Matodzi testified that she shouted out after being
kicked
but the person in the next office testified that he did not
hear her, yet he was close enough to hear the mop fall. She only
reported
the incident around 2 hours later even though it happened
within a few offices of the yard manager. She claimed to be crying
and
in so much pain yet she managed to walk to hospital which
according to the Applicant’s representatives was around six
kilometres
away. I feel that if she were truly in such a state then
someone would have offered to drive her to hospital. The medical
doctor
that she saw did not book her off work. It was in fact the
medical doctor who suggested that she get a J-88 form from the police
and then require her to go and open a case so that she could get a
case number. I do not believe that she would have of her own
volition
gone to the police. As she stated that, “he has not apologized”
and he has not paid her medical costs it seems
to me that this is all
she wanted from him. Ms Matodzi claims of further pain and
complications were not substantiated as being
directly linked to the
incident nor was there any documentary evidence to support her
ongoing medical treatment.
The commissioner goes further to say that:
“
In looking at the circumstances of the
incident, despite case la highlighting that provocation should be
used in mitigation of assault,
I find that in this case the lack of
provocation mitigates for the Applicant. There was no reason for the
employee to assault Ms
Matodzi. I do not believe that a person would
be so incensed by having a mop in his way to want to attack someone.
I believe the
employee when he testified that he certainly did not
have any intention to hurt Ms Matodzi.”
In dealing with the issue of mitigation the
commissioner says that the assault was mitigated by the fact that
there was no provocation.
It would appear that to a large extend
this influenced the finding that the dismissal was too harsh. The
commissioner found in
this respect that no person could be so
incensed by a mob being on his way that he would resort to
assaulting another person.
The commissioner seems to reject the testimony of the
doctor who treated the complainant on the basis that her finding was
that
pain which she suffered arose from a blunt object and not “due
to a foot,” meaning that the evidence did not indicate
that it
was due to the fact that she was kicked. The doctor’s
testimony is also rejected on the basis of the body weight
of the
employee and the fact that in kicking the complainant he used his
“wrong foot.” Apparently the employee is
right footed
but used his left foot to kick the complainant. It is also on the
basis of this that the commissioner found that
there was no
correlation between the pain which the complainant claim to have
suffered and the force used by the employee in
kicking her.
At the end of his reasoning the commissioner accepts
that the conduct of the employee amounted to the applicant’s
disciplinary
code but found that because of his clean record and
long service with the applicant it would not fair to dismiss the
employee.
Evaluation
In applying the reasonable decision maker test there
seem to be no doubt there is a need to interfere with the
commissioner’s
arbitration award, in this matter. The decision
reached by the commissioner is not one which could have been reached
by a reasonable
decision maker. The decision reached by the
commissioner is unreasonable for a number of reasons. The analysis
of the reasoning
and the conclusion reached in this matter indicates
that the commissioner misconceived the task that was before him and
committed
fundamental mistakes of law. The commissioner seems to
have fundamentally misunderstood the rules of evidence including the
principles
governing mitigation.
The commissioner for instance rejects the evidence of
the doctor which was never contested by the third respondent. The
commissioner’s
observation about what the doctor said could
have been the cause of the injury to complainant has no basis in
law. In a strange
way the commissioner also blames the doctor for
having advised the complainant to report the assault to the police.
It also appears
that the commissioner blames complainant for what
happened to her.
It would appear from the analysis of the arbitration
award that the commissioner lacked the understanding of how the
principle
of mitigation applies in the context of provocation. It
would seem the commissioner did not understand the nature of the
offence
he was dealing with. In fact the fact that the employee
reacted in the manner as he did when complainant enquired from him
as
to why he was throwing the mob on the ground ought to be consider
as an aggravating rather than a mitigating factor. Because the
reaction that resulted in the kick was not provoked the commissioner
ought to have, in the absence of a better explanation as
to the
violent reaction on the part of the employee, found that the
appropriate sanction was dismissal despite the long service
that he
had with the applicant.
The finding that the employee’s kick could not
cause injury because the employee is 185kg in weight is totally
irrational
and accordingly makes the arbitration award of the
commissioner unreasonable. Assault is an unlawful invasion of a
person’s
physical integrity carried out with that person’s
consent or permission. The strength or force used by the perpetrator
of force is irrelevant.
The same applies to the finding that the employee did
not have the intention to assault the complainant. It is apparent
that the
commissioner assed the intention to assault on the part of
the employee on the basis of what he simply had to say. He failed to
appreciate that he needed to assess the intention to assault on the
basis of the totality of and the objective facts which were
placed
before him.
The explanation given by the employee is that the
complainant brought the charges against him because she wanted to
get some money
from him for her medical fees. The allegation that
the complainant required the employee to pay for the medical costs
incurred
is irrelevant. In any case the medical costs were incurred
as a result of his violent conduct.
Had the commissioner applied his mind and appreciated
the task at hand he would have given considerable weight to the
version
that assault was a serious offence. The evidence of the
doctor which as indicated was not challenged indicates that the
injury
suffered by the complainant was serious. This is further
corroborated by the evidence of the employee himself, that he
pleaded
guilty to assault with intention to do grievous bodily harm
at the magistrate court. The explanation as to why he pleaded guilty
at the criminal trial bears no merit and should have been rejected.
The fact that the complainant had to walk a distance of
6 km is irrelevant as there was no evidence before the commissioner
that
there was another hospital nearer. There was also no evidence
that the complaint had other means of travelling to the hospital.
The observation about the fact that the complainant could have
obtained a lift to the hospital suggests strongly that the
commissioner
misconceived the issues he was dealing with. It is also
irrelevant that the complainant reported the assault to the police
at
the advice of the doctor.
In dealing with the issue of mitigation the
commissioner ought to have appreciated that he was dealing with a
distinct enquiry
which had to be conducted upon the conclusion of
guilt on the part of the employee. The so-called mitigation comes
into play
as part of assessing whether the sanction imposed is fair
or not. In essence the enquiry entails assessing the circumstances
of the employee in relation to his or her employment and other
factors that may have caused him to commit the offence such as
provocation or self defense.
It has now been accepted, as stated in
Motsamai v
Everite Building Products (Pty)
[2011] 2 BLLR 144(LAC)
,
that
it is the commissioner who has to determine what a fair sanction
should be having regard to all the facts presented to him
including
the seriousness of the offence.
An attack on another employee in the absence of
provocation would serve as an aggravating factor which ordinarily
would significantly
decrease the chances of leniency in the
imposition of a sanction.
The commissioner failed to appreciate that once he had
concluded that an assault had occurred then the obvious conclusion
would
have been that an offence was committed. The enquiry to follow
thereafter would have been to determine whether there were
mitigating
or aggravating factors. In assessing the gravity of the
offence the commissioner had to take into account any defense which
the
employee may have put forward. One of such defenses could have
been provocation. The commissioner found that there was no
provocation
but however used the absence thereof as a mitigating
factor and thereby totally misconceiving the application of the
concept
of provocation in our law.
In assessing the fairness of the sanction the
commissioner failed in his consideration to take into account the
fact that the
employee says that he would have apologized had the
employee come to work the following day. If this is to be believed
the question
is why did he not do it when he had a number of
opportunities to do so. He could have conveyed his apology through
Mr Olievier
who confronted him about the incident and more
importantly he could have admitted the incident at that stage. He
also had two
other opportunities where he could have apologized,
being at the disciplinary and the internal review hearings. At al
the stages,
except at the criminal court hearing, he denied the
assault. All these together with the fact that the victim was a
defenseless
woman should have weighed heavily against the years of
service and the clean record which the employee had. A person in the
position
of the employee should have known better what the
consequences of his conduct are likely to lead to. If he was to be
believed
that he never intended to invade the privacy of the
complainant as indicated he could have owned up immediately when was
confronted
by Mr Olivier or if that opportunity did not avail itself
, he could have done so at the disciplinary hearing and or at the
internal
review stage.
In my view anything less than a dismissal in this
matter would have been a clear message that the applicant does not
regard physical
integrity of its individual employees as a serious
offence. More importantly anything less than a dismissal would have
meant
that the applicant condoned violence against women. There can
be no doubt that an assault on a woman in itself should be regarded
as an aggravating factor. Except in certain sports like wrestling,
employees are not employed to assault others. Failure to take
appropriate steps in assault cases will result in fear to the
vulnerable and defenseless and may result in lack of labour peace.
The interest of an employer in eliminating acts of violence at the
workplace is not only limited to protecting the individual
employees
but also to ensuring labour peace which in turn ensures proper
morale and productivity.
In broad terms the commissioner in arriving at the
conclusion as he did is basically saying that violence against
others is permissible
as long as the force used in the assault is
not too much. It is must be noted that in the present instance the
force used was
found by the doctor to have been considerable because
it resulted a serious injury on the complainant.
It is in the light of the above discussion that I
belief that the applicant’s review application stand to
succeed.
The applicant has requested that a costs order should
be made against the third respondents. The overriding consideration
in that
regard is that the applicant still has the relationship with
one of the third respondents. I do not belief that a cost order
should for that reason be made.
In the premises the following order is made:
The arbitration award issued under case number GAJB
5821-09 is reviewed and set aside.
The arbitration award is substituted by the
following:
“
1 The dismissal of the applicant was
substantively fair and therefore the unfair dismissal claim of the
applicant is dismissed.”
There is no order as to costs.
Molahlehi J
Judge of the Labour Court of South Africa
Date of Hearing: 19 November 2010
Date of reasons: 23 March 2011
Representation
For the applicant: Mr P Maserumule of Maserumule Inc
For the respondent: Mr E van Niekerk of Solidarity
11