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[2011] ZALCJHB 93
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Top Security (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR519/09) [2011] ZALCJHB 93; [2012] 3 BLLR 311 (LC); (2012) 33 ILJ 992 (LC) (4 November 2011)
9
REPUBLIC
OF SOUTH AFRICA
Reportable and of
interest to other judges
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR 519/09
In the matter between:
TOP SECURITY (PTY) LTD
….........................................................................
Applicant
and
COMMISSION FOR
CONCILIATION
ARBITRATION AND
MEDIATION
…...................................................
First
Respondent
COMMISSIOPNER M.S.
RAFEE,
N.O
….......................................
Second
Respondent
HLABISA; JOHNSON
…...................................................................
Third
Respondent
Heard:
12 August
2011
Decided:
04
November 2011
Summary: Review: is
the matter opposed when only notice of opposition and no answering
affidavit filed? Late filing of heads of
argument.
JUDGMENT
Introduction
This is an application
in terms of which the applicant seeks to have the arbitration award
issued by the second respondent (the
Commissioner) under case no
GAJB30041-08 dated 16 February 2011 reviewed
and set aside. In terms of the arbitration award the Commissioner
found that the
third respondent (the employee) guilty of the
offences he was charged with but did not confirm the dismissal
because he found
the sanction to have been too harsh. It was for
this reason the dismissal was substituted with a final written
warning and further
the applicant was ordered to pay employee the
full back pay.
The issue to be decided
by this Court is whether the dismissal of the employee was
substantively unfair. The issue of procedural
fairness was not put
in dispute.
The other issue to
consider is whether the matter was opposed, the applicant having
filed a notice of opposition but having failed
to file the answering
affidavit. Related to this is also the late filling of the heads of
argument.
It seems to me
convenient to deal with the issue of whether or not this matter was
opposed before dealing with the substantive
aspects of the review.
Mr Voyi on behalf of the
employee did not dispute that the heads of arguments were late and
that no condonation application had
been made but contended that he
was entitled to appear on behalf of the employee because the
arbitration award was attacked on
the basis of law and therefore in
doing so he would rely on the applicant’s own papers. He also
suggested that his approach
of not filing the heads was warranted
because he was dealing with the matter of pro bono.
Mr Venter appearing on
behalf of the applicant argued that because there was no opposing
affidavit the only version that was before
the Court on an affidavit
was that of the applicant and therefore the matter should be treated
as unopposed. In this respect
Mr Venter relied on the decisions in
Moosa
and Another v Knox,
1
Ebrahim and Another v
Georgoulas and Another
2
and
Bader
and Another v Weston and Another
.
3
In
Ibrahim and Another
case
the respondent, in the same way as the present instance,
chose not to file an opposing affidavit answering to the applicant’s
allegations. The respondent chose in that case to take a legal point
only and not formally answer to the allegations made in the
applicant’s founding papers.
In
Bader,
4
the Court held that
generally speaking our procedures requires that a respondent who
wishes to oppose an application on the merits
to place before the
Court by way of an affidavit within the prescribed time limits. The
Court also recognised that there may
be instances where the need for
an answering affidavit may not be necessary.
Rule 7(4)(b) requires
that Notice of Opposition and answering affidavit must be delivered
within 10 days from the day on which
the application on the party
opposing the application is served.
I accept that in certain
instances a party may having filed a notice of opposition challenge
the application on a point of law
without necessarily having to file
the answering affidavit. In fact I am tempted to suggest that in
appropriate cases the Court
should encourage this approach because
it will be cost effective and will safe time. This approach would be
appropriate in particular
in those cases where the outcome and not
the process of the arbitration hearing is challenged.
In the present matter
but for the failure by the third respondent to file his heads of
argument on time or seek condonation for
the late filing, I would
have in all probabilities treated this matter as opposed and would
have taken into account the submissions
made by Mr Voyi. This matter
accordingly remains unopposed.
Background Facts
The employee commenced
employment in 2003 as a security officer earning R5 700, 00 per
month. The employee was dismissed on the
18 September 2008 for
misconduct related to hooting at a site in the early hours of the
morning. The charges proffered against
employee read as follows:
‘
1.
On
or about 20
th
August 2008 at/ or about 3h30 am you seriously deviated from company
policies and procedures and standards in that you hooted in
a
residential area disturbing the peace,
2. Serious deviation from company
policies and procedures and standards in that you, when confronted by
a member of the public about
the disturbances at 3h30 am, were
insolent and insulting towards the member and threatened violence
towards him,
3. Serious deviation from company
policies and procedures and standards in that you removed the guard
from the site 104, 4
th
street without reason, and leaving
the site unattended,
4. This behaviour caused or may have
caused the company name to come into disrepute.’
The incident that gave
rise to the above charges relates to the evening of the 20 August
2008 at site no 104, 4 Pokwane Street
where the employee was posted.
The version of the
applicant is that on the day Dr John Bell, a resident of 104 was
woken up at about 3h30 am by repeated and
persistent hooting near
his home. And when he went to check he found that the hooting was
from one of the applicant’s cars
which was driven by the
employee.
It is common cause that
there was an exchange of words between the employee and Dr Bell. The
employee objected to the manner in
which Dr Bell was talking to him
regarding the noise created by the hooting. The employee told Dr
Bell that he was talking to
him like a child and that it was ‘bloody
well unacceptable.’ In response Dr Bell said ‘stop
behaving like one.’
The employee whilst not
denying the hooting, says that Dr Bell in speaking to him and his
colleague, amongst others, said: ‘what
are you doing, you
bloody stupid, you bloody idiot.’ The employee says that he
responded by apologising but instead of
accepting the apology Dr
Bell went further to say: ‘you bloody black don’t
deserve to be in this neighbourhood.’
The employee apologised
the second time but Dr Bell continued yelling at him.
Thereafter the employee
told him to stop swearing at him, and further said that if he did
not he would ‘moer you’.
The other comment which Dr Bell
is alleged to have made when the employee said he was sorry was:
‘
Sorry for
what, you are thinking like a child. Your mind is black therefore you
can’t think....’
After the exchange
between him and Dr Bell the employee drove away with the security
officer who was on duty at no 104, to inspect
the outer perimeter of
the site. The employee was also charged for removing a guard from
his post without arranging for a substitute.
The employee did not
dispute that he drove away with the security guard but contended
that he drove around the parameter of the
property because they
heard some strange movement which they went to inspect.
Grounds for Review
The essence of the
complaint of the applicant about the arbitration award is that the
Commissioner totally disregarded the evidence
it led and failed to
appreciate that the employee committed a serious offence. It is for
this reason that the applicant contends
that the decision reached by
the Commissioner is not one which a reasonable decision maker could
have reached.
The applicant also
criticised the conclusion by the Commissioner regarding the removal
of the security from site 104, 4
th
street as being
unreasonable.
The Arbitration award
The Commissioner in his
analysis starts by finding that in the process of the exchange that
went on the day in question some racist
slurs were made by Dr Bell.
He arrives at this finding on the basis that had there been no such
racial slurs there would have
been no need for Dr Bell to have made
mention of it in his e-mail. It is not clear from the arbitration
award as to what weight
was given in relation to the final
conclusion. It seems to me very little, if at all. In fact in view
of the finding concerning
the racial slurs does not seem to have
much relevance to the final conclusion reached by the Commissioner.
As concerning the issue
of hooting which is central to the charges proffered against the
employee, the Commissioner found that
the employee did hoot on the
day in question. It would seem that the hooting was according to him
justified because there was
no two-way radio through which to call
the security guard. The Commissioner found that it was standard
practice for hooting to
occur.
Evaluation
It is trite that the
duty of the Court to scrutinise an award for reasonableness remains
even in unopposed review applications
including determining the
presence of the defects envisaged in
section 145
of the
Labour
Relations Act 66 of 1995
. The test for determining the
reasonableness or otherwise of an arbitration award is set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
.
5
It is clear from the
reading of the arbitration award that the Commissioner found the
employee guilty of bringing the name of
the applicant into
disrepute.
He
further found the use of the word ‘moer’ to have been
unwarranted.
The Commissioner thus
decided the fairness or otherwise of the dismissal on the basis of
the harshness of the sanction. In this
respect the Commissioner
found the dismissal to have been unfair because of the harshness of
the sanction.
It is now well
established in our jurisprudence that the test to apply in review is
that of a reasonable decision maker. In applying
the test of a
reasonable decision maker, the Court seating in review has to
determine whether the outcome reached by the Commissioner
falls
within the range of acceptable and reasonable outcomes. The review
Court does not concern itself with the correctness of
the outcome
but its reasonableness.
It is also trite that,
it is the Commissioner’s function to determine the fairness of
the dismissal and not the reviewing
Court. In other words the
reviewing Court is not entitled to substitute the decision of the
Commissioner for its own.
In the present instance,
the Commissioner, summarised in some details the facts which were
presented before him and thereafter
made his findings. In his
findings the Commissioner as indicated earlier found the employee
was not guilty of hooting and removing
the other security guard from
the site. The employee was found guilty of bringing the applicant’s
name into disrepute.
As concerning the issue of threatening Dr Bell
with violence, the Commissioner found the word “moer”
used by the
employee to have been unwarranted. In other words the
employee was found not guilty for this offence.
After the above findings
the Commissioner finds that the dismissal was too harsh and
substituted it with a final written warning.
In my view the
Commissioner performed his duty as required by the law and on the
facts and the circumstances of the case as was
presented before him
he found that the sanction of dismissal was too harsh. The
Commissioner may well be wrong in his conclusion
but that is not the
test. The test is reasonableness, having regard to the circumstances
and the totality of the matter or facts
which were before the
Commissioner. I am not persuaded that the Commissioner’s
decision is unreasonable and therefore warrants
interference.
In light of the above,
the application stands to fail. This being an unopposed application
no order as to costs need be made.
Order
In the premises the
applicant’s application to review the decision of the second
respondent is dismissed with no order as
to costs.
___________________
Molahlehi J
Judge of the Labour Court
of South Africa
APPEARANCES:
FOR THE APPLICANT: Adv
F.Venter
Instructed by: Van Gaalen
Attorneys
FOR THE RESPONDENT: Mr N.
Voyi on behalf of the pro bono office.
1
1949
(3) SA 327
NPD.
2
1992
(2) SA 151
(BGD).
3
1967
(1) SA 134
(CPD).
4
Id
5
2008
(2) SA 24(CC
).