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[2011] ZALCCT 48
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G4 Security Services SA (Pty) Ltd v Edwards NO and Others (C 942/2008) [2011] ZALCCT 48 (24 March 2011)
Not reportable
Not of interest
IN THE LABOUR COURT OF SOUTH
AFRICA
HELD AT CAPE TOWN
Case
no: C 942 / 2008
In the matter between:
G4
SECURITY SERVICES SA (PTY) LTD
.......................................
Applicant
and
COMMISSIONER
ELDRIDGE EDWARDS N.O.
...................
First
respondent
CCMA
...............................................................................
Second
respondent
LUCIEN
CRAIG WYNGAARD
.............................................
Third
respondent
JUDGMENT
STEENKAMP J:
Introduction
This is an application to review and set aside an award of the first
respondent (the arbitrator) under case number WE 11402-08.
The attack on the award is that it is unreasonable, based on two
crisp points:
2.1. the Commissioner created a gross irregularity by taking evidence
into account that was not before him; and
2.2. the Commissioner committed a gross irregularity by ordering
reinstatement when the employee (the third respondent) only requested
compensation.
BACKGROUND
The employee, Lucien Craig Wyngaard, was employed by the applicant
as a security officer from 1 November 2002 until his dismissal
in
August 2008.
The incident that led to his dismissal is that a number of security
officers were driven home by a colleague, one Jonas, in a
company
vehicle on 15 July 2008. The other occupants of the vehicle were the
employee; Ms Natasha Thomson; a controller, Mr Soni;
and the shift
manager, Mr Orris.
When they reached Orris’s home, he gave his colleagues a
bottle of vodka and a number of bottles of beer. They stayed at
the
car in front of Orris's house for 30 to 40 min and drank the
alcohol. When they left, Jonas was still driving and they went
to
pick up one Fortuin.
Fortuin subsequently reported that the occupants of the vehicle were
intoxicated. Soni also reported the incident the next day.
Because
of this, Soni was not disciplined, but the others were called to
disciplinary hearings.
The misconduct put to the employee was that:
"On 15 July 2008 at 2040
you did not report irregularities / misconduct by a shift manager
occurring in your presence to management."
The employee admitted having drunk the alcohol supplied by Orris.
The chairperson, one Sonday, found that the misconduct was
serious
enough to warrant dismissal.
The employee referred an unfair dismissal dispute to the CCMA. The
arbitrator found that the dismissal was procedurally fair
substantively unfair and ordered reinstatement. The reason for the
finding on substantive unfairness is contained in paragraph
20 of
the award, which I quote in full:
"Mr Sonday conceded under
cross-examination ... that Mr Orris, who also holds a senior position
with the respondent, is still
employed. The respondent did not leave
evidence to explain why Mr Orris was not dismissed. If the applicant
had a duty to report
as a senior officer surely Mr Orris had the same
duty. Mr Orris gave Mr Jonas the alcohol and was thus largely
responsible for
the occurrence of the incident. I therefore found
that the respondent was inconsistent in the application of the rule
and sanction.
The respondent failed to discharge its onus of proving
that the dismissal is substantively unfair.”
evaluation
The deponent to the founding affidavit, Ilza Coetzee, stated under
oath:
"The Commissioner's
findings of fact have no foundation on the evidence placed before
him. As the record will reveal Mr Orris
was also dismissed and this
was placed before the Commissioner."
I could find no such evidence – i.e. that Orris had been
dismissed – on the record. Neither could Mr
Hutchinson
,
who appeared for the applicant. But neither could I find any
evidence on the record that “Mr Sonday conceded under
cross-examination
that Mr Orris… is still employed." And
Mr Hutchinson assured me from the bar that there is no such evidence
to be
found.
In the circumstances, the very basis for the finding of
inconsistency does not exist. This finding is so unreasonable that
no reasonable Commissioner could have come to the same conclusion on
the evidence before him.
With regard to the relief, it appears from the CCMA referral form
(Form 7.11) that the employee specifically requested compensation
and not reinstatement. When the company presented written heads of
argument to the Commissioner at arbitration, it pointed out
that the
employee only sought compensation. The employee did not argue
otherwise. Nevertheless, the Commissioner ordered retrospective
reinstatement. This is also a decision that no reasonable
Commissioner could have made, given the clear nature of the relief
sought.
Remit or substitute?
The award falls to be set aside. Mr Hutchinson submitted that I
should substitute my own award for that of the arbitrator, and
that
I should find that the dismissal was fair.
I do not agree. The two issues forming the basis of the review –
whether Orris was dismissed and the issue of compensation
–
were not ventilated at the arbitration. It will be necessary for a
different arbitrator to hear evidence on those two
aspects in order
to make a proper finding on the fairness of the dismissal.
With regard to costs, I take into account that this application was
unopposed. There is no reason in law or fairness to make
a costs
order.
Order
The arbitration award of the first respondent (the arbitrator) under
case number WE 11402-08 dated 5 November 2008 is reviewed
and set
aside.
The dispute is referred back to the CCMA (the second respondent) for
a fresh arbitration before another Commissioner.
There is no order as to costs.
_______________________
STEENKAMP J
Date of hearing:
22 March 2011
Date of judgment:
24 March 2011
For the applicants:
Adv E Hutchinson
Instructed by Moodie & Robertson
(No appearance for respondents)