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[2011] ZALCD 3
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Chetty v Toyota South Africa (Pty) Ltd and Others (D224/06) [2011] ZALCD 3; [2011] 8 BLLR 735 (LC) (18 February 2011)
Page
11
of
11
Case
No: D224/06
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD IN DURBAN
Case No: D224/06
Reportable
In
the matter between
VISHNU
CHETTY
….................................................................
APPLICANT
And
TOYOTA
SOUTH AFRICA (PTY) LTD
….................
FIRST
RESPONDENT
COMMISSIONER
A.R. DORASAMY
…..............
SECOND
RESPONDENT
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
….........................
THIRD
RESONDENT
JUDGMENT
SHAI,
AJ
INTRODUCTION
[1] This as an
application for review and setting aside of the award issued by the
second respondent “the Commissioner”
dated 20
th
February 2006 under the case no KMDB2348-05 and issued under the
auspices of
Commission for Conciliation, Mediation and
Arbitration
,(
the CCMA
). Further that, the applicant prays
that having reviewed and set aside the Commissioner’s award the
court should determine
that the applicant’s dismissal was
unfair. The first respondent is opposing the application.
[2] The applicant was
employed by the respondent as a Coordinator on the 16 October 1981
and a year later became an Industrial Engineer.
He was dismissed by
the first respondent on 21 September 2004 after a disciplinary
hearing. He was convicted and dismissed on allegations
that he
circulated a racially offensive e-mail using company resources (a
computer). The said distribution was against company
policy.
[3] The decision to
dismiss the applicant was confirmed on appeal on the 20
th
January 2005. He referred the dispute concerning the unfair dismissal
to the CCMA and arbitration hearing was held on the 24
th
November 2005 and the award was issued on the 20
th
February 2006. In the award the second respondent confirmed the guilt
finding and the dismissal.
THE FACTS
[4] On the 25
th
June 2004, applicant’s manager, Mr. Basil Ramon and Emmanuel
Killian, Human Resource Manager, informed the applicant about
an
e-mail which was found at a printer on the premises shared by about
80 people. He was accused of circulating the e-mail and
was
suspended.
[5] It appears that at
the disciplinary hearing two e-mails were at issue. Initially the
respondent relied on an e-mail sent out
at 18h46 pm and later during
the cause of the hearing it introduced the one sent at 19h29 and it
is this e-mail that led to his
conviction and dismissal.
[6] The said e-mail was
sent by the applicant to one Julies at the e-mail
julies@bell.co.za
and contained the
following:
“
Subject: A
BLACK GUY AND A WHITE MAN WERE SITTING IN THE PARK.
A black guy and a
white man were sitting in the park.
The white man had a
pet monkey and a black guy was selling bananas.
So the black guy said
Mr. can u look after my bananas I am going to the toilet? “O
yes go on ahead” said the white guy.
When the black guy came
back there were no more bananas and he is like “Where are my
bananas?”
The white guy says ask
your brother, pointing at his monkey.
The black guy just
chilled. Then the white guy said, can u check out for your brother I
am going to the toilet.
The black guy says,
its cool. When the white guy came back the monkey was dead and he is
furious like what happened to my monkey!!!
The black dude says
“Mr. don’t get involved it was a family affair!!”
[7] As was indicated
above he was found guilty and dismissed hence, the referral to the
CCMA.
[8] At the Arbitration
hearing the applicant’s defense had three legs:
8.1 He had not sent it.
8.2 The e-mail was not
offensive.
8.3 The First Respondent
was not consistent in it’s application of discipline in the
workplace.
[9] The second respondent
found that the applicant had sent the e-mail and that it was racially
offensive and confirmed the guilty
finding and the dismissal of the
applicant.
[10] The applicant in his
Heads of Argument abandoned the defense as contained in paragraph
[8.1] above, namely “
I had not sent it”.
GROUNDS OF REVIEW
[11] The applicant in
it’s review papers raise the following criticism of the second
respondent’s award in more specific
form:
11.1 Contrary to the
evidence before him, second respondent found that applicant was the
only person present and failed to show
that any other person would
have been able to send the e-mails at that place and at the relevant
time. This was raised against
the background of the defense, “
I
did not send the e-mail”
, as captured under paragraph [8.1]
above. It was indicated above that the Applicant has abandoned this
defense and I shall not
deal with it for purpose of a finding.
11.2 The second
respondent ignored the fact that the real cause of the complaint that
Is, the discovery of a hard copy of the e-mail
by a shop steward, had
nothing to do with him.
11.3 Second respondent
failed to address the numerous procedural issues placed before him
and failed to give any reasons for rejecting
same.
11.4 The second
respondent ignored all the evidence relating to the issue of
consistency as in the case of Mr. Ndlovu.
[11.5] The second
respondent failed to “
examine”
the joke –
was it racially offensive? If so, what race should be offended? The
black race (comparison to monkey), or the
white race (considered to
be bigots)? Or both races?
[11.6] The second
respondent failed to consider the further factors, namely:
- Whether the
communication is racially offensive,
- Whether such
communication is acceptable in the public domain.
- If not, whether, the
offense is such that a dismissal should follow,
- The intention of the
person sending the communication,
- To whom the e-mail was
sent,
- The harm, if any, the
communication caused,
- Any other relevant
factors.
[12] The applicant
submits that by acting in the aforesaid manner:
12.1 The second
respondent failed to comply with the provisions of the Act pertaining
to the conducting of a fair, valid and proper
Arbitration proceedings
in terms of the Act;
12.2 Factual findings
made by the second respondent did not correspond with the evidence
properly before him;
12.3 The second
respondent exceeded his powers in terms of the Act;
12.4 The second
respondent did not properly, rationally and justifiably apply his
mind to the facts in or the law in this instance
lending weight to
the first respondent’s versions which were tainted with
improbabilities and inconsistencies;
12.5 The second
respondent failed to properly apply the provisions of the
Constitution of the Republic of South Africa in this instance;
12.6 The second
respondent failed to afford the applicant a fair and proper hearing
in the circumstances and failed to properly
conduct the Arbitration
proceedings in the circumstances;
12.7 The award of the
second respondent is not justifiable in relation to the reasons given
for such Award and such Award is not
rational or justifiable in its
merit or outcome.
EVALUATION
[13] The test for review
has been laid out in the well known case of
Sidumo & Another v
Rustenburg Platinum mines Ltd and Other
[2007] 12 BLLR 1097
[CC].
The court therein held that the provisions of
Section 145 of the
Labour Relations Act 1995 (“the Act”)
were suffused
by the Constitutional standard of reasonableness. This is arrived at
by answering the question which was formulated
in
Bato Star
fishing (Pty) Ltd v minister of Environmental Affairs and Others
[2004] 7 BLLR 687
[CC]
as follows:
Is the decision reached by
the Commissioner one that a reasonable decision maker could not
reach?
[14] To succeed in the
application the applicant must therefore satisfy this court that the
second respondent’s decision is
one that a reasonable
arbitrator could not have reached.
[15] I have refrained
from dealing with grounds of review as captured under paragraph 11.1
and 11.2 above as they hang on the defense
the applicant pursued at
the arbitration namely “
I did not sent it”.
Since
the applicant does not contend the finding that he was the one who
sent the e-mail it will serve no purpose to comment further
on this.
[16] The applicant
complains that the second respondent failed to address the numerous
procedural issues placed before him and failed
to give any reason for
rejecting same. However, nowhere in his papers does the applicant
list these complaints. Further that the
applicant’s Heads of
Argument also failed to address this criticism. I therefore do not
find any irregularity on the part
of the Commissioner.
[17] The applicant
further criticizes the Commissioner for ignoring all the evidence
relating to the issue of consistency in particular
about Mr. Ndlovu.
[18] In
Mashiane v
Dolie No and Others
[2010] 4 BLLR 422
[LC] at paragraph 17, Molahlehi
J
said the following in so far as gross irregularity is a ground
of review:
“
The test for gross
irregularity as was articulated in Goldfields Investment Ltd and
another v City Council of Johannesburg and Another
1938 TPD 551
is
summarized in Sidumo by Ncgobo J as he then was (at 1178 F) as
follows:
“
Patent irregularities; that
is, those irregularities that take place openly as part of the
conduct of proceedings, on the one hand,
and latent irregularities,
that is irregularities that take place inside the mind of the
judicial officer, which are only ascertainable
from the reasons given
by the decision maker.”
[19] He went further at
paragraph 18 to say that Labour Court has previously held that the
crucial enquiry in determining the existence
of gross irregularity is
whether the conduct of the decision maker complained of prevented a
fair trial of issues. Where it was
found that the Commissioner failed
to apply his or her mind to a matter material to the determination of
the dispute, this was
held to be a gross irregularity
.
[20] At the Arbitration
the applicant raised the issue of consistency in that one Ndlovu, a
team leader, was charged of a misconduct
for referring to a team
member, a (black) person a baboon, which the employer categorized as
category 3 offense which the first
respondent says it is
distinguishable from category 4 misconduct of which the applicant was
charged of. Mr. Posit Ndlovu was given
a final written warning for
this misconduct. Further that, there was also the issue of Mr. Nigel
ward and Mr. Henry Pretorius who
were convicted for “
abuse
of company e-mail facility….by distributing gender insensitive
material”
but were not dismissed.
[21] Nowhere in the award
of the second respondent is this matter given attention at all and it
is central to the issue of the fairness
of the sanction and whether
or not all the elements of the substantive dismissal have been
complied with. Schedule 8 of the
Labour Relations Act of 1995
, item 7
provides that:
“
Any person who is determining
whether a dismissal for misconduct is unfair should consider…
(a),
(b) if a rule or standard was
contravened , whether or not –
(i),……….
(ii)…………
(iii) the rule or standard has been
consistently applied by the employer…….”
This is even more so
where the issue of consistency was raised during the cause of the
proceedings.
In line with this code of
practice and the authorities mentioned above there is no doubt this
amounts to a gross irregularity.
[22] The ground of review
as captured under 11.5 and 11.6 will be dealt together as they are
intertwined. Herein the second respondent
is essentially criticized
for failing to examine whether the contents of the relevant e-mail
amounted to a ‘joke’ or
not. The applicant set out a
number of factors which should have been looked into by the second
respondent.
[23] The commissioner
accepted that the applicant and his representative have admitted that
the said e-mail was racially offensive.
Based on this and the
evidence of the other witnesses, especially for the first respondent,
the commissioner concluded that it
is racially offensive. The
applicant through his Counsel contested that the said admission
should not be regarded as an admission
but was at pains to justify
such a conclusion.
[24] At the disciplinary
hearing the evidence went as follows:
“
Mr. Venter : Thank you, what
is your opinion of this e- mail?
Mr. Van Niekerk : Mr. Chairman,
it’s common cause that these are racial things. We do not argue
that, it is not necessary
to
go through that.
Chairman : Well. Let’s
proceed, Mr. Venter, I think that it’s common cause, but let’s
proceed.”
[25] Further that, the
applicant himself testified as follows at the disciplinary hearing:
“
Mr. van Niekerk : Do you
have you ever circulated racially offensive?:
Mr. Chetty : No
Mr. Van Niekerk : Why not?
Mr. Chetty : Well, people get upset
and that’s the policy of the company to do that.
Mr. van Niekerk : You find it
offensive?
Mr. Chetty : Yes
Mr. Van Niekerk : Have you even
seen this, have you seen this e-mail on your computer?
Mr. Chetty : No
Mr. van Niekerk : When did you
first time see this e-mail?”
[26] Clearly, it is mind
boggling for anyone to suggest that the above does not amount to an
admission, clearly the intention of
which was to put the matter
beyond dispute. This admission is consistent with the line of defence
pursuit by the applicant, namely,
that he did not send the said
e-mail. Now that he admits to sending the e-mail he seeks to disown
the admission. It can’t
be.
[27] The Commissioner
accepted the above evidence together with the other evidence put
before him and concluded rightly so that
the e-mail is racially
offensive. She need not do more. In any event looking at the e-mail
I’m of the view that any reasonable
man in the position of the
commissioner would conclude that the e-mail is racially offensive.
Therefore I find that no irregularity
was committed by the
commissioner on this ground.
[28] Having found in
paragraph 21 above that the commissioner committed an irregularity in
so far as the issue of consistency is
concerned I make the following
order:
1. The award issued by
the commissioner dated 20 February 2006 under case no KMDB2348-05 is
reviewed and set aside,
2. The dispute is
referred back to the Third Respondent to be arbitrated by a
commissioner other than the Second Respondent.
3. I make no order as to
costs.
_____________
SHAI, AJ
DATE OF HEARING : 04 February 2011
DATE OF JUDGMENT : 18 February 2011
APPEARANCES
FOR THE APPLICANT : Adv T SEERY
Instructed by : JAY REDDY ATTORNEYS
FOR THE RESPONDENT : V.M OOSTHUIZEN of
SHEPSTONE
& WYLIE ATTORNEYS