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[2011] ZALCJHB 262
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Trident SA (Pty) Ltd v Metal And Engineering Industries Bargaining Council and Others (JR1337/10) [2011] ZALCJHB 262 (31 August 2011)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD
ATJOHANNESBURG
CASE NO:
JR 1337/10
DATE: 2011-08-25
REPORTABLE
In the matter between:
TRIDENT
SA (PTY) LTD
A
pplicant
and
THE METAL AND ENGINEERING
INDUSTRIES
BARGAINING
COUNCIL
First
Respondent
SIPHO
DLAMINI N. O
Second
Respondent
NUMSA
OBO ALETTA M MAKHASA
Third
Respondent
JUDGMENT
Bhoola
J :
Introduction
[1] This is an
application for a review and/or set aside in terms of section 145 of
the Labour Relations Act 66 of 1995 (“the
Act”) of the
award of the second respondent (“the commissioner”) under
case number MEGA 26016, dated 3 May 2010
in the arbitration
proceedings between the applicant and the third respondent (“the
employer”). The application is
opposed by the third respondent
(“the employee”).
Background facts
[2] The employee
was employed as a cleaner by the third respondent on 13 September
2004. It is common cause that on 29 June 2009
she assaulted a fellow
employee, Reuben Ntwae on two occasions, following which she was
charged as follows : “Physical assault
in that on Monday the
29
th
of June 2009 you slapped Reuben Ntwae twice”. She pleaded
guilty to the charge and was dismissed on 14 July 2009.
[3] The employee
referred an unfair dismissal dispute to the first respondent and
arbitration proceedings were held on 9 December
2009 and 1 April
2010. She did not dispute the procedural fairness of her
dismissal.
[4] The
commissioner concluded that although the employee was guilty of the
assault and therefore of gross misconduct, her actions
were justified
by provocation and therefore the sanction of dismissal was too harsh
in the circumstances. The commissioner
ordered that she be
reinstated with backpay and issued with a final written warning.
Grounds of
review
[5] The grounds of review are set out
by the applicant in its heads of argument as follows :
(1) The award is not one that a
reasonable commissioner would have reached taking into account the
evidence before him and
the law. In amplification of this ground the
applicant submits that the commissioner:
(a)
Had
no regard to the fact that the assault had taken place in a very
dangerous working environment and the applicant has a duty
to ensure
a safe working environment;
(b)
Did
not appreciate the fact that the applicant acted consistently in
dismissing the employee in that it has previously dismissed
employees
for similar offences in terms of its disciplinary code and procedure;
(c)
Did
not consider and apply his mind to all the material evidence
presented at the arbitration;
(d)
Misconstrued
the evidence that the employee should be given a second chance for
the mere fact that she pleaded guilty to the charges;
(e)
Misconstrued
the legal principles applicable to provocation when he found that the
employee had reacted to provocation and that
her conduct was
justified;
(f)
Unreasonably
concerned himself with whether Ntwae was indeed guilty of making the
calls in question and the content of the calls
as well as whether the
employee had proven the contents of the calls;
(g)
Unreasonably
and irrationally concluded that dismissal was not an appropriate
sanction in the circumstances.
(2) The
commissioner should have focused on whether the employee made herself
guilty of gross misconduct as suggested in the Code
of Good Practice
: Dismissal in the Act.
(3) The
commissioner unreasonably and irrationally came to the conclusion,
despite the fact that the employee committed a dismissible
offence,
that she should be reinstated and therefore replaced the applicant’s
standards with his own.
(4) The
commissioner failed to apply his mind as there is no demonstration
anywhere in the award that the conclusion is logically
connected to
the overall assessment and the impact of the oral evidence tendered
by both the applicant and the employee at the
arbitration.
(5) In regard to
the principles of provocation, no reasonable commissioner could have
accepted same as justification for the employee’s
repeated
assault on a fellow employee.
(6) Therefore, the applicant submits
that the award and reasons issued by the commissioner are reviewable
inter alia
on the following grounds :
a)
The
commissioner failed to properly, justifiably and reasonably determine
and assess all the evidence presented at the arbitration;
b)
The
commissioner exceeded his powers in terms of the Act;
c)
The
commissioner did not properly, rationally and justifiably apply his
mind to the facts and the law in this instance.
The review
standard
[6]
It
is by now trite that the applicable test in reviews following
Sidumo
& Another v Rustenburg Platinum Mines Ltd
&
others
(
2007)
28 ILJ 2405 (CC)
is
that of reasonableness, which must be determined objectively with due
regard to all the evidence before the commissioner.
In order to
succeed in
a
review the
applicant must therefore establish that the award was one that could
not have been made by a reasonable decision maker
on the material
presented :
Sidumo
supra
at
[110].
[7] The
Constitutional Court has confirmed that a commissioner is required to
apply his or her mind to the issues properly, and
that failure to do
so will result in an arbitration award being set aside :
Commercial
Workers Union of SA v Tao Ying Metal Industries & others (
2008)
29 ILJ 2461 (CC) at 2485-2486.
[8]
The
applicant must therefore show that the outcome falls outside the
parameters of what is reasonable:
Edcon
Ltd v
Pillemer
NO & others
(2008) 29 ILJ 614 (LAC) at [21];
Ellerine
Holdings Ltd v CCMA & others
(2008) 29 ILJ 2899 (LAC) at 2905-2906.
Evidence led at
the arbitration
[9] The evidence of
the employee was that after 22:00 on Saturday night 27 June
2009 Ntwae called her on two occasions and
made suggestions of a
sexual nature to her. There was a third missed call when she switched
on her phone on the Sunday morning.
The caller identified himself as
Reuben, said he worked with her, and she recognised his voice. Ntwae
confirmed that it was indeed
his phone number which appeared on the
employee’s mobile phone, but denied that he had made the calls
in question. His
evidence was that he was asleep that night
when the calls were allegedly made, and that only his wife and
children had access to
his phone.
[10] When the
employee reported for work on the Monday morning (29 June) she made
enquiries from a shop steward about the phone
number. The shop
steward, Paulos Mphafe wrote the number down on his hand and went to
ask Reuben what his number was and confirmed
that the number on the
employee’s phone was his. The employee then approached Ntwae,
asked him why he had called her and
insulted her, swore at him and
slapped him twice. The assault took place in the presence of
witnesses. The employee returned
to her work station but about forty
minutes later during tea time she again confronted Ntwae about why he
had called her and when
he did not reply she again slapped him twice.
[11] The employee
testified that Mike Calvert, a Director of the applicant asked her
about the incident and she replied that she
was very angry and
apologised to him. Calvert accepted her apology, forgave her and
instructed her to return to her workstation.
In the arbitration
however Calvert said he did not remember whether she apologised,
although from the context it appears that he
might have misunderstood
the question as being whether she apologised to Ntwae. Later he
confirmed that an apology did not change
the applicant’s
response to discipline for assault at all.
[12] The employee
testified that she was angry. It was put to her by the applicant’s
representative that she was “too
angry to lodge a grievance”
and she did not respond. She explained that it had been too early
that morning to go to human
resources. She admitted that she was
aware of the disciplinary code and the grievance procedure and that
she had previously lodged
a grievance against two female employees
who had insulted her.
Evaluation of
the award and submissions
[13] It is apparent
from the record that the parties were in agreement that one of the
issues to be determined by the commissioner
was whether or not it was
Reuben Ntwae who called the applicant. The commissioner reflects this
in his award and this cannot therefore
constitute a valid ground for
review. Furthermore, it is apparent from the record of the
arbitration that the applicant’s
representative exhaustively
cross-examined the employee on the content of the telephone calls;
how Ntwae could have obtained her
phone number; and whether she could
have encouraged his conduct. At one point the commissioner questioned
the relevance of this
line of questioning and was persuaded that it
was relevant to the applicant’s case. It is therefore not
surprising that these
issues find their way into the award and the
commissioner cannot be faulted for this.
[14] The
commissioner is unable to find that there is evidence of consistency
in discipline on both the testimonies of Calvert and
Kerruish, as
they were not involved in previous matters and were unable to
distinguish between the different cases on their merits.
However what
he fails to have regard to is the documentary evidence as well as the
direct evidence that there is zero tolerance
for assault irrespective
of the seriousness thereof at the applicant, and that the employee
was at all times aware of this.
[15] In regard to
the finding of provocation, the employee’s representative, Mr
Xilongo, referred to
Anglo
Operations Limited (Bank Colliery) v Tokiso Dispute Resolution (Pty)
Ltd and Others
[2006] ZALC 77
(4 July 2006) as support for the proposition that a
finding of provocation in the context of a assault could be
justified.
The employee relied on the defence of
provocation and her evidence was that she acted out of anger. The
judgment of Revelas J is
distinguishable however in that the court
refers to a serious assault, which is not applicable in the current
context. The applicant’s
attorney, Mr Du Randt submitted that
this finding was unreasonable in that the commissioner failed to have
regard to and apply
the legal principles applicable to establishing
the defence of provocation. The commissioner obviously took account
of her affront
at the lewd suggestions made in the call and the
admission by Ntwae that the calls emanated from his phone. However,
if regard
is had to the fact that she had sufficient opportunity to
consider how to deal with the matter before returning to work on
Monday;
that she was unable to explain why she had failed to report a
grievance to human resources; and that she availed herself of the
opportunity to verify the telephone number that morning, it would be
apparent to any reasonable decision-maker that the defence
of
provocation cannot be sustained on the facts. Her conduct was
deliberate in the face of her knowledge of the disciplinary code
and
grievance procedure and she cannot be said to have retaliated out of
anger.
[16] In determining
that dismissal was not an appropriate sanction in the circumstances,
the commissioner had regard to the fact
that the employee had
apologised (to Roger Calvert, whose name he reflected incorrectly in
the award although he made a point of
checking the spelling in the
arbitration) and had pleaded guilty. He states that he took into
account various factors set out in
the Code of Good Practice:
Dismissal, as well as the considerations referred to in
Sidumo
supra
relevant
to deciding whether the sanction of dismissal is fair. In
Sidumo
supra
(at [75]) the Court made it clear that it is the commissioner’s
sense of fairness that must prevail and the commissioner
should not
defer to the employer in this regard. The commissioner is therefore
required to take into account the totality of circumstances
including
the importance of the rule that was breached, the reason for the
sanction of dismissal, the harm caused by the employee’s
conduct, whether additional training and instruction may result in
the employee not repeating the misconduct as well as the effect
of
the dismissal on the employee : See
Fidelity
supra
at
[94]. In this regard it is noteworthy that the commissioner had
regard to the evidence of Kerruish that mitigation was
relevant and
that the primary purpose of discipline was not retribution. However,
Kerruish and Calvert also made it clear what
the significance was of
the rule in the context of the enforcement of discipline in a
workplace such as the applicant’s.
In these circumstances to
permit an employee to take the law into her own hands seriously
undermines discipline in the workplace.
Moreover, to interpret a plea
of guilty as remorse in the circumstances where it is apparent from
the employee’s evidence
that she felt none, in my view reflects
a failure to have regard to the totality of the evidence and to weigh
all the relevant
considerations.
[17] The
commissioner failed to apply his mind to the totality of the issues
and evidence before him in reaching his conclusions.
Although it is
not unreasonable
per
se
in these circumstances to conclude that dismissal was too harsh a
sanction, and the reaction of the employee is understandable
and one
has sympathy for her, the award must fall on the grounds of review
set out. This leaves the issue of the appropriate remedy
and in
circumstances where it appears that the record is substantially
complete and all the issues have been ventilated it would
be
appropriate to substitute the award with an appropriate order.
[18] In the
circumstances I make the following order :
The award is reviewed and set aside.
The award is substituted with an
order that the dismissal of the employee was for a valid and fair
reason.
There is no order
as to costs.
______________
Bhoola J
Date of hearing :
25 August 2011
Date of judgment : 31 August
2011
Appearances
The Applicant : Mr J Du Randt, Du
Randt Du Toit Pelser Attorneys
For the Third Respondent: Mr J
Xilongo, NUMSA Regional Legal Officer