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[2011] ZALCPE 3
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Prowalko v Commission for Conciliation Mediation and Arbitration and Others (P608/09) [2011] ZALCPE 3 (5 April 2011)
IN THE LABOUR
COURT OF SOUTH AFRICA
HELD AT PORT
ELIZABETH
CASE
NO.-P608/09
In the matter
between:
PROWALCO
(PTY) LTD
…...............................................................................
Applicant
And
COMMISSION
FOR CONCILIATION
MEDIATION &
ARBITRATION
…...........................................................
1
st
Respondent
MARIS KOTZE
N.O
…............................................................................
2
nd
Respondent
LOUISE SERRAO
…..............................................................................
3
rd
Respondent
JUDGMENT
MOLAHLEHI J
INTRODUCTION
The applicant
in this matter seeks an order reviewing and setting aside the
arbitration award issued by the second respondent
(the commissioner)
under case no: ECPE 2555-09 dated 16
th
November 2009. In terms of that arbitration award the commissioner
found the dismissal of the third respondent, who will in this
judgment be referred to as the “employee,” to have been
unfair.
Background facts
The employee, Ms Serrao who was
employed as a regional maintenance co-ordinator by the applicant was
amongst others responsible
for co-ordinating subcontractors engaged
in repairing damaged structures and to conduct maintenance in
respect of petrol stations
with which the applicant had contracts
with was dismissed for misconduct.
It is standard practice that
subcontractors who do work for the applicant are issued job cards
prior to commencement of their
work. The purpose of the job cards is
to instruct the contractors as to the specific mandate they ought to
perform. In terms
of the policy of the applicant contractors are not
permitted to be on site if not in possession of a job card.
The compliance with the above policy
became even more critical after apparently an incident which
occurred in Pakistan. After
that incident and on the 23
rd
of March 2009, a “
stand down”
meeting was
convened with all the contractors. The discussions during that
meeting focussed on the issues of safety. The other
aspect which was
emphasised which was part of the safety measures was that all the
contractors should ensure that permit issuers
were on site at all
times when high risk repair or maintenance was being performed.
During that meeting Mr Strydom,
representing, Infrastructure Steel Work CC, indicated the difficulty
he had with that policy,
namely that he did not have enough permit
issuers who would be on site as required. In response thereto the
employee undertook
to raise the issue with the main contractor and
thereafter revert back to him. It seems common cause that the
employee did not
revert back to Mr Strydom who in turn assumed that
the rule would apply in a flexible manner.
Prior to the ‘
stand down’
meeting, the employee sent an email to Mr Strydom informing him of
the need to make the canopy safe. A job card had been issued
for
that particular task which was carried out during March 2009. That
task was completed on 17
th
March 2009 and the job card
thereof records the following:
“
[s]ecure
6 loose roof sheets and remove 8 roof sheets which would not be
secured due to corrosion in that area. Temporarily secured
light to
purlin.”
After the completion of the work done
by Mr Strydom, other problems remained that required attention. In
this regard the employee
requested Mr Strydom to provide a quotation
for the replacement of the canopy. On receipt of the quotation the
employee forwarded
the same to the business consultant.
The version of the employee during
the arbitration hearing was that she did not hear from Mr Strydom
until the incident in which
his employee was injured on site. It
would appear the work which Mr Strydom was performing when the
incident occurred was still
to be approved and no business card had
been issued.
The investigation conducted by the
applicant, the report of which was submitted during the arbitration
hearing, revealed that
the cause of the accident was that the
employee of Mr Strydom had fallen 4.5 metres because he did not
properly attach his fall
system. Arising from that incident the
employee was charged with the offence which is summarised by the
commissioner in the arbitration
award in the following terms:
“
Failure
to adhere to minimum standards required with serious consequence to
the employer and the customer.
During the safety stand down
meeting of 23 March and the Algoa Bus incident it is felt that Louise
Serrao was negligent in carrying
out the minimum expectations of
Prowalco as per job description:
Jobs in progress until completion:
ensure contractor works in
accordance with technical spec’s and complies with the
environmental health and safety requirements.
knowledge and application of
technical spec’s and environmental health and safety
requirements.
ensure that you fully understand
these requirements and clarify when in doubt.”
The employee was found guilty and
dismissed. The chairperson of the disciplinary hearing in imposing
the sanction of dismissal
had the following to say:
“
. . . the
employer and the customer relationship might have been broken or
because of the incident is a little bit broken or is
broken. This
will result in me having to apply the sanction that has been put down
in our disciplinary code of conduct which is
dismissal for the first
offence. So my sanction will be, it is dismissal. So it is
dismissal.”
Grounds for review
The grounds upon which the applicant
relies on in challenging the arbitration award of the commissioner
can be summarised as follows:
The commissioner failed to apply his
mind to the facts in evidence before him.
The commissioner failed to appreciate
the nature of the evidence presented before him thus leading to an
unreasonable decision.
The commissioner exceeded his powers
by drawing conclusions which were not supported by evidence.
The commissioner failed to take into
account the evidence tendered by the applicant.
The commissioner’s award
The commissioner in his arbitration
award rejects first the complaint of the employee that the dismissal
was motivated by the
attitude which the chairperson of the
disciplinary hearing had against her regarding the outcome of
disciplinary hearings that
she (the employee) had been involved in.
The complaint was based on the comment made by the chairperson of
the disciplinary hearing
during one of the breaks at the hearing.
As concerning the facts of the case
the commissioner found that it was common cause that Mr Strydom’s
close corporation
(the CC) was instructed during March 2009 to make
safe the danger presented by the loose roof sheets at Algoa bus
site. On completion
of that work Mr Strydom sent an email to the
employee informing her that the problem was more than just removing
the roof sheeting.
It was on the basis of this that the employee
requested Mr Strydom to submit a quotation for further work that he
said was required.
The commissioner further found that
after the communication with Mr Strydom, the employee contacted
Cheveron to enquire as to
whether Mr Strydom should proceed with the
job. In analysing the emails exchange between the employee, Mr
Strydom and Cheveron
the commissioner found that Cheveron had
intended to authorise Mr Strydom to do the work but relevant paper
work still needed
to be completed. The commissioner found further
that the employee did advice the applicant what the stand of
Cheveron was in
relation to the work. The employee informed Mr
Strydom that she was still awaiting the approval from Cheveron but
that in the
mean time he should proceed to make safe the canopy.
The commissioner then proceeds to
consider whether or not the instruction to make canopy safe meant
that Mr Strydom had the mandate
to continue with work beyond what
was set out in the job card of the 17 March 2009. Based on the
concession made by Mr Strydom
during cross examination the
commissioner found that making the canopy safe was confined to the
job card of the 17 March 2009.
The commissioner further found that
the version of the employee that she informed Mr Strydom at the
meeting of the 23
rd
March 2009 that he would be issued
with another job card once approval for the job was received was not
challenged.
As concerning the work done on the 2
April 2009 the commissioner found that, Mr Strydom was aware that he
had to contact the employee
before going onto the site and further
he was aware that the Service Operational Procedure provided that he
could not do work
on site without a job card. Mr Strydom was also
aware that the work he was doing had not been approved and was aware
also that
a certificate holder had to be on site when work at
heights was done and that was not negotiable as was confirmed by the
employee
at the meeting of 23
rd
March 2009.
Taking the above into account the
commissioner found that Mr Strydom despite being aware of the policy
flagrantly disregarded
the requirements thereof. The essence of the
finding is that the employee was not to blame for what happened and
that the full
blame had to be on Mr Strydom.
Evaluation
It is trite that the enquiry to be
conducted in considering whether or not the commissioner’s
arbitration award should be
interfered with is, whether or not the
decision or finding reached by the commissioner is one which a
reasonable decision maker
could not reach. If it is an arbitration
award or decision that a reasonable decision maker could not reach,
then the decision
or award of the CCMA is unreasonable and thus
reviewable and subject to being set aside.
The reasonableness
or otherwise of the arbitration award has to be assessed not in
vacuity but rather on the facts and circumstances
of a given case.
In other words in assessing the reasonableness of an arbitration
award the court has to contextualise the reasoning
and the
conclusion reached by the commissioner with the facts, the
circumstances and any other materials which were properly
placed
before him or her. In this regard the Constitutional Court in
S
idumo
& another v Rustenburg Platinum Mines Ltd & others
[2007] 12
BLLR 1097
(CC)
at paragraphs 78 to 79, held that:
“
[78]
In approaching the dismissal dispute impartially, a commissioner will
take into account the totality of circumstances. He or
she will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course 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. There are other factors that will require consideration.
For example, the harm caused by the employee’s
conduct, whether
additional training and instruction may result in the employee not
repeating the misconduct, the effect of dismissal
on the employee and
his or her long-service record. This is not an exhaustive list.
[79] To sum up. In
terms of the LRA, a commissioner has to determine whether a dismissal
is fair or not. A commissioner is not given
the power to consider
afresh what he or she would do, but simply to decide whether what the
employer did was fair. In arriving
at a decision, a commissioner is
not required to defer to the decision of the employer. What is
required is that he or she must
consider all relevant circumstances.”
In
Fidelity Cash
Management Services c CCMA and others
[2008] 3 BLLR 197
(LAC),
the Labour Appeal Court summarised what is required of commissioners
in making their decisions in arbitrations awards as follows:
“
[94]
In terms of the Sidumo judgment, supra, the commissioner must:
“
take
into account the totality of circumstances” (paragraph 78);
(b) “consider
the importance of the rule that had been breached” (paragraph
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” (paragraph 78);
(d) “consider
the harm caused by the employee’s conduct” (paragraph
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” (paragraph 78); and
(g) “consider
the employee’s service record”.
The Court went further to
say:
“
[95]
Once the commissioner has considered all the above factors and others
not mentioned herein, he or she would then have to answer
the
question whether dismissal was, in all of the circumstances, a fair
sanction in such a case. In answering that question, he
or she would
have to use this or her own sense of fairness. That the commissioner
is required to use his or her own sense of justice
or fairness to
decide the fairness or otherwise of dismissal does not mean that he
or she is at liberty to act arbitrarily or capriciously
or to be mala
fide. He or she is required to make a decision or finding that is
reasonable.”
In applying the above test to the
present case there is no doubt that the commissioner cannot be
faulted for unreasonableness.
The commissioner in arriving at the
decision that the dismissal was unfair firstly set out the
background facts in details, which
was not disputed by the
respondent, and thereafter reasoned his conclusion in a manner that
it cannot be disputed that there
is a rational connection to the
reasoning and the conclusion. The context in which the dismissal and
the reason thereof occurred
is fully analysed by the commissioner.
It is thus clear that the commissioner was largely influenced by the
circumstances and
the context in which the dismissal occurred. The
dismissal occurred in the context where the employee could not be
blamed for
not complying with the rules but everything occurred
because of the flagrant disregard of the applicant’s rules by
Mr Strydom.
The job card for which the applicant
seems to have relied on in charging and dismissing the employee have
no relation to the failure
by Mr Strydom’s employee to comply
with safety measures. The purpose of the job card is to authorise
the contractor to
do the work and a means through which payment for
the work done can be claimed. The job card also describes the work
to be done
by the contractor. The version of the employee that Mr
Strydom was told not to proceed with the job until a job card was
issued
was not challenged by the applicant.
It would appear that Mr Strydom
commenced with the work in anticipation that he would be getting the
job. It would also appear
that Cheveron had intended approving the
appointment of Mr Strydom’s CC to do the job and accepted his
quotation. The fact
of the matter is however that the appointment to
do the job was still pending when he moved into the site.
There is also,
from the reading of the record, no evidence that there is a rule of
the applicant that says failure to issue a
job card is an
offence that could lead to dismissal. Even assuming that that was
the case, the applicant’s case would still on the authority
of
Edcon Ltd v Pillemer NO and others
[2010] 1 BLLR 1
(SCA),
have been unsustainable because, in addition to what is stated
earlier, there is no evidence that suggest a breakdown in the
relationship between the employee and the applicant. See also
Westernaria Local Miunicipality v SALGBC
[2010] 3 BLLR
342(LC).
The reasoning in the
Edcon
is that
the employer has the duty to adduce evidence to show that the
relationship has broken down because of the offence committed
by the
employee.
In my view, there would still be no
basis for interfering with the decision of the commissioner even if
it was, for whatever reason,
to be found that the dismissal was
substantively fair. The dismissal would have been unfair because the
facts and the circumstances
before the commissioner indicates very
clearly that a dismissal sanction would have been unfair. The
sanction of dismissal would
have been unfair taking into account a
number of factors. One of those factors relate to the point made
about the fact that there
was no evidence of breakdown in the
relationship. That the relationship did not breakdown is evinced by
even the closing remarks
made by the initiator of the disciplinary
inquiry. The concern of the initiator of the disciplinary hearing
was mainly about
avoiding the repeat of such incidents in the
future. The incident according to him had affected the relationship
between the
applicant and Chevron. This is the point which the
initiator emphasised. There is no reference made to what impact the
incident
had on the relationship between the applicant and the
employee.
The earlier quotation from the
decision of the chairperson of the disciplinary hearing also
indicates that the problem that arose
as a result of the incident
was between Chevron and the applicant. The chairperson of the
disciplinary hearing made no finding
as concerning the impact that
the incident had on the relationship between the employee and the
applicant. It is also important
to note that the investigation
report into the cause of the incident did not implicate the
employee. The investigation report
found that the possible cause of
the incident was:
“
3.1
Stepping on fragile roof (sheets with gutters fall down), purling
very rusted. The Permit Issuer also advised workers that it
would be
safe to step on the sheets in close proximity of the facia. This
could give wrong impression to workers and no stepping
on ceiling
sheets should be allowed on a canopy.
Fall arrest was not tide down at
minimum one point during movement of position.”
The report concludes that the fall of
the employee of Mr Strydom could have been avoided if the fall
arrest was properly secured
on a steel beam. And more importantly
the report states that all documents must be properly completed and
signed by all the parties
and the risk communicated to all involved
before a job is performed. It is clear from the above that Mr
Strydom, who had assumed
that his company would be appointed to do
the job, started the task without the necessary documentation. In
his evidence he does
not suggest that he was authorised to do so by
the employee, - he did so on his own accord.
In addition to the above discussion
it is important to note that this matter revolved largely around the
question of the factual
findings made by the commissioner. The
question of factual findings in dismissal cases are determined
primarily by the arbitrating
commissioner of the CCMA or bargaining
council as the case may be, rather than by the court considering the
review application.
In the absence of material error of fact the
findings of a commissioner are to be respected by the court even if
the court was
to find that the dispute may be resolved one way
rather than another. In other words, as has been stated previously
in our labour
jurisprudence it is not for the court to substitute
its decision for that of the commissioner.
The court is in my view, without
authority to interfere with the factual findings made by the
commissioner if such findings are
support by evidence on the record.
The authority of the court is highly limited in reviewing the fact
findings made by the commissioner
in an arbitration award. If the
factual findings made by the commissioner are
prima facie
lawful and reasonable, it seems to me that the court has to defer to
the commissioner’s factual findings. The court may
only
interfere in a case involving a mistake of fact where it has been
shown that such a mistake is of such a nature that it
can be said
that it amounted to a denial of a fair hearing for the applicant.
As a matter of principle the court’s
province in dealing with factual findings of a commissioner is
limited to determining
whether such findings can be sustained or
supported by evidence on the record. Put differently, the factual
findings made by
the commissioner in an arbitration award is final
and binding on the reviewing court unless it can be shown that:
there is insufficient evidence on the
record to support such findings or
the findings were erroneously made
and the error is of such a nature that it in a material manner
deprived the affected party
a fair hearing or
the findings appear to be
unreasonable, capricious or arbitrary or
the findings are based on evidence
which had inherent contradiction which the commissioner failed to
reconcile and deal with.
The commissioner made the findings
without resolving the material contradictions that existed in the
different versions between
the parties or even those that are
present in the version of the wining party.
In the present instance the
commissioner as indicated earlier in this judgment applied his mind
to the evidence which was presented
before him and after properly
evaluating it made the factual findings as he did. The findings made
by the commissioner are not
mistakenly made, are reasonable and
supported by the evidence which was properly before him.
In my view, there is no basis in the
light of the above to interfere with the commissioner’s
arbitration award and therefore
the applicant’s application
stands to fail. There is also no reason in law and fairness why the
costs should not follow
the results.
In the premises the applicant’s
application is dismissed with costs.
_______________
Molahlehi J
Judge of the Labour Court of South
Africa
Date of Hearing: 25 November 2011
Date of Judgment : 05 April 2011
Appearances
For the Applicant : Ms G Ndlovu of
Maserumule Inc
For the Respondent: Adv Wade S.C
instructed by Kaplan Blumber Inc.
9