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[2011] ZALCJHB 49
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Karan Beef (Pty) Ltd v Mbelengwane NO and Others (JR 896/10) [2011] ZALCJHB 49 (7 June 2011)
KARAN BEEF (PTY) LTD
V N MBELENGWA N.O CASE NO JR 896/10 - Review
application-reasonableness of the arbitration award- regard
being
had to the reasons not appearing on the arbitration award but
apparent from material before the commissioner. Mistake of
facts not
constitute gross irregularity. June
2011................................................................................................................................................
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
Reportable
Case
No: JR 896/10
In
the matter between:
KARAN
BEEF (PTY) LTD
….............................................................................
Applicant
and
N
MBELENGWA N.O
…...........................................................................
1
ST
Respondent
CCMA
…....................................................................................................
2
ND
Respondent
BONGANI
SIBIYA
…...............................................................................
3
RD
Respondent
Date
of Hearing : 31 March 2011
Date
of Judgment : 07 June 2011
JUDGMENT
Molahlehi
J
Introduction
[1]
T
his is an application to review and set aside the arbitration
award issued by the first respondent (the Commissioner) under case
number GATB 16595/09 dated 19
th
February 2010. In terms of
the arbitration award, the Commissioner found the dismissal of the
third respondent (employee) to have
been procedurally fair but
substantively unfair.
Background
[2]
The applicant runs the business of processing and distributing meat
products which are distributed nationally to various food
markets.
The applicant achieves its business objectives by employing amongst
others a number of drivers to drive trucks for the
purposes of
distribution of its product.
[3]
The employee was employed as a driver and responsible to deliver meat
to the various business facilities.
[4]
The applicant contended during the arbitration hearing that because
one of the business imperative was that the trucks must
be clean, the
employee as the driver thereof had the responsibility of making sure
that it is at all times clean.
[5]
On 16 April 2009, the employee was required by one of the managers to
clean his truck at the time when he was on delivery at
the Balfour
facility. According to the applicant, the employee refused to obey
the instructions to clean the truck and was for
that reason
disciplined for insubordination, which resulted in his dismissal.
[6]
At the arbitration hearing, the applicant called a number of
witnesses to support its version that the dismissal of the employee
was for a fair reason. The first witness was Mr Karan the assistant
manager testified that on the day in question, he instructed
the
employee who had gone to collect meat at the Balfour facility to wash
his truck.
[7]
After a few minutes of giving the instruction, Mr Karen returned to
find the employee busy on the cell phone and when he enquired
of him
why he was not washing the truck, he told him that it was not part of
his job and that he was a driver. Mr Karan then repeated
the
instruction to the employee to wash the truck. Again the employee did
not heed the instruction and Mr Karan assisted by two
other employees
proceeded to wash the truck.
[8]
The second witness of the applicant testified about the procedure
followed in conducting the disciplinary hearing and how he
came to
the conclusion that the employee had failed to obey a reasonable
instruction.
[9]
The third witness testified about the responsibility of the drivers
to clean the trucks and how, in certain circumstances there
is a team
of cleaners who may assist in the cleaning of the trucks.
[10]
In short, the case of the employee is that he was sent to Balfour
facility to collect meat. He contended that his responsibility
was to
drive the truck and not to wash it and that he was not told by his
manager at City Deep that his duties would change when
he arrived at
Balfour to include washing the truck.
Grounds
for review and the award
[11]
The applicant in challenging the arbitration award contends that the
Commissioner committed a gross irregularity and reached
a decision
which a reasonable decision maker could not reach. The applicant says
that the arbitration award is unreasonable because
the Commissioner
in making the findings and reaching the conclusion as he did,
approached the matter from an incorrect premises
and also adopted a
highly technical approach in resolving the dispute.
[12]
The applicant says that the Commissioner’s award is grossly
irregular and unreasonable because in arriving at his decision
concerning the substantive fairness of the dismissal, the
Commissioner failed to consider the following questions:
“
28.1
Did the employee commit misconduct?
28.2 If the Employee did
commit the misconduct was the dismissal appropriate sanction?”
[13]
The other questions which the applicant contends that the
Commissioner failed to answer were the following:
“
29.1
Was there a workplace rule regarding the conduct complained of?
29.2 Was the employee aware or
could reasonably have been expected to have been aware of the rule?
29.3 Did the employee breach
the rule?"
[14]
The applicant contends further that the instruction given to the
employee was reasonable in that it was in line with his duties
as
provided for in the Driver’s Standard Operating Procedures (the
policy) which provides at clause 4 thereof that
“
The
loading compartment must be cleaned at all times before loading
commences.”
[15]
And clause 5 of the policy provides as follows:
“
The
driver is responsible for the cleaning of the cab, the exterior and
the wheels of the vehicle.”
[16]
The Commissioner in arriving at the conclusion that the dismissal was
unfair reasoned that the applicant had failed to discharge
the
onus
of showing that the dismissal of the employee was for a valid and
fair reason. The Commissioner found in this respect that the
instruction
of Mr Karan was unlawful because it was not the
responsibility of the employee to wash the truck, but that of the
cleaners. As
concerning the procedure the Commissioner found that the
applicant followed a fair procedure in dismissing the employee.
Evaluation
[17]
The test to apply in considering whether or not the decision of the
Commissioner should be interfered with on review is that
of a
reasonable decision maker test. The test was set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
1
as
being whether the decision reached by the commissioner is one which a
reasonable decision maker could not reach.
In
applying the test,
the
court would
have
regard to
the
reasoning of the commissioner based on the material which was placed
before him or her during the arbitration hearing
.
The
court also in that judgement indicated what would be expected of the
commissioner in assessing the fairness or otherwise of
the dismissal.
[18]
The Labour Appeal Court in
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
2
summarised
at paragraph [94] what the Constitutional Court said was required of
the commissioner in determining the fairness or
otherwise of the
dismissal as follows:
“
(a)
“take into account the totality of circumstances” (par
78);
(b)
“consider the importance of the rule that had been breached”
(par 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” (par 78);
(d)
consider “the harm caused by the employee’s conduct”
(par 78);
(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” (par
78);”
[19]
The Labour Appeal Court went further to say that it is the
commissioner who must ultimately determine the fairness or otherwise
of the dismissal. As concerning the reasoning of the commissioner,
the Court held that the reviewing Court does not have to limit
its
assessment whether or not to review the award to the reasons as
stated in the award but may have regard to other reasons that
may
appear from the material that was before the Commissioner. In this
respect, the Court had the following to say:
“
.
. . there can be no doubt now under Sidumo that the reasonableness or
otherwise of a commissioner’s decision does not depend
–
at least not solely - upon the reasons that the commissioner gives
for the decision. In many cases the reasons which 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 can render the
decision reasonable or unreasonable can be taken
into account. This
would clearly be the case where the commissioner gives reasons A, B
and C in his or her award but, when one
looks at the evidence and
other material that was legitimately before him or her, one finds
that there were reasons D, E and F
upon which he did not rely but
could have relied which are enough to sustain the decision”.
3
[20]
The Labour Appeal Court went further to say:
“
.
. .
Whether
or not an arbitration award or decision or finding of a CCMA
commissioner is reasonable must be determined objectively with
due
regard to all the evidence that was before the commissioner and what
the issues were that were before him or her. There is
no reason why
an arbitration award or a finding or decision that, viewed
objectively, is reasonable should be held to be unreasonable
and set
aside simply because the commissioner failed to identify good reasons
that existed which could demonstrate the reasonableness
of the
decision or finding or arbitration award”.
4
[21]
As concerning the allegation of gross irregularity,
the
principle governing that issue was set by Ngcobo J, as he then was,
in
Sidumo
5
and
quoting with approval what was held in
Ellis
v Morgan
6
,
where
the court said:
“
But
an irregularity in proceedings does not mean an incorrect judgment;
it refers not to the result, but to the methods of a trial,
such as,
for example, some high-handed or mistaken action which has prevented
the aggrieved party from having his case fully and
fairly
determined.”
[22]
The key issue in determining whether the conduct of the commissioner
amounted to gross irregularity that would vitiate his
or her decision
is stated by the Constitutional Court quoting from
Golfields
Investment and Another v City of Johannesburg and
Another
7
(at
paragraph 263) as follows:
“
The
crucial question is whether it prevented a fair trial of the issues.
If it did prevent a fair trial of the issues then it will
amount to a
gross irregularity
.”
8
[23]
The Learned Judge went further to say that:
“
The
decisions of Ellis and Goldfields
were
recently endorsed by the Supreme Court of Appeal in the context of
the Arbitration Act in Telcordia Technologies.
194
Both
Ellis and Goldfields make it plain that the crucial enquiry is
whether the conduct of the decision-maker complained of prevented
a
fair trial of issues. The complaint must be directed at the method or
conduct and not the result of the proceedings. And the
reasoning of
the decision-maker must not be confused with the conduct of the
proceedings. There is a fine line between reasoning
and the conduct
of the proceedings, and at times it may be difficult to draw the
line; there is nevertheless an important difference.
Determining
whether the commissioner has committed a gross irregularity will
inevitably require the reviewing court to examine
the reasons given
for the award. In doing so the reviewing court must be mindful of the
fact that it is examining the reasons not
to determine whether the
conclusion reached by the commissioner is correct but whether the
commissioner has committed a gross irregularity
in the conduct of the
proceedings.”
9
(footnotes
not included
)
[24]
In the present instance, it may well be that the Commissioner
committed an error in as far as the facts which were put before
him
are concerned. In my view, that error is not of such a nature that it
can be said that the applicant was denied a fair hearing.
[25]
Turning to the issue of the reasonableness of the Commissioner’s
decision, and applying the principles enunciated in
Fidelity Cash,
I am of the view that the decision of the Commissioner is not one
which a reasonable decision maker could not reach. It is apparent
from the reading of the material that was before the Commissioner
that the sanction of dismissal was too harsh in view of the
circumstances of this case, because the employee did not out rightly
disobey the instruction of Mr Karan. He refused to perform
the task
in terms of the instruction on the basis that it was not part of his
duties. The employee may well have been incorrect
in his
interpretation of what constituted his duties but his
bona fide
belief in what it was, was never put in doubt during the arbitration
hearing. The employee believed that the responsibility of
washing the
truck was that of the cleaners. Whilst his refusal to perform the
task as was required by Mr Karan may have not been
justifiable regard
being had to the provisions of the policy, it was not of such a
nature in the circumstances that it could be
said to be total
defiance of his authority. There is no dispute that upon receiving
the instruction, the employee contacted the
City Deep branch of the
applicant where his immediate supervisor was based and sought clarity
about the extent of his duties.
[26]
It seems to me that in the circumstances of this case, the applicant
hastily instituted disciplinary proceedings and came to
the unfair
conclusion that dismissal was appropriate. In my view, had the
applicant applied progressive discipline, it may have
found that the
behaviour of the employee may have been corrected and that he was not
likely to repeat the same in the future.
[27]
In the circumstances, I am of the view that the applicant’s
application stands to fail. I see no reason in both law and
fairness
why the costs should be allowed to follow the results.
[28]
In the premises, the applicant’s application to review and set
aside the decision of the first respondent is dismissed
with no order
as to costs,
Molahlehi
J
Judge
of the Labour Court of South Africa
Representation
:
For
the applicant: Mr D Masher of Bell Dewar and Hall Attorneys.
For
the respondent: M R Mokgalabone.- SASLAW PRO BONO
1
2007
28 ILJ 2405 (CC).
2
(2008)
29 ILJ 964 (LAC) at para 94.
3
Id
at para 102.
4
Id
at para
5
Above
n: 1 at para 262.
6
1909
TS 576.
7
Golfields
Investment and Another v City of Johannesburg and
Another
1938 TPD 551.
8
Above
n: 1 at para 263.
9
Above
note: 1 at para 265.
9