About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2012
>>
[2012] ZALCJHB 193
|
|
Sukazi v Commission for Conciliation Mediation And Arbitration and Others (JR96/2010) [2012] ZALCJHB 193 (17 February 2012)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Of interest to other
judges
Case no: JR 96/2010
In
the matter between
SANELISIWE
SUKAZI Applicant
and
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND
ARBITRATION First
Respondent
KRIEL
A
(N.O.) Second
Respondent
FIDELITY
SECURITY SERVICES
(PROPRIETARY)
LIMITED Third
Respondent
Heard:
19 January 2012
Delivered:
17 February 2012
Summary:
JUDGMENT
LEPPAN
AJ
[1]
The Applicant instituted review proceedings in terms of Section 145
of the Labour Relations Act, as amended ("the LRA")
[1]
to review and set aside certain decisions made by the Second
Respondent that –
1.1
the Applicant was not entitled to be legally
represented in the arbitration proceedings which were conducted by
the Second Respondent
under the auspices of the Third Respondent; and
1.2
that in taking a decision to dismiss her claim of
unfair dismissal, the Second Respondent committed a grave
irregularity by relying
upon hearsay evidence tendered by the Third
Respondent's sole witness. Mr Des Beyleveldt ("Beyleveldt").
[2]
It serves to mention that the Applicant amended her notice of motion
in order to challenge the Constitutionality of Rule 25(1)(c)
of the
Rules of Practice and Procedure of the First Respondent which
provides as follows:
‘
if
the dispute being arbitrated is about the fairness of a dismissal and
a party has alleged that the reason for the dismissal relates
to the
employee's conduct or capacity, the parties, despite subrule (1)(b),
are not entitled to be represented by a legal practitioner
in the
proceedings unless –
(1)
the Commissioner and all the other parties
consent;
(2)
the Commissioner concludes that it is unreasonable
to expect a party to deal with the dispute without legal
representation, after
considering –
(a)
the nature of the questions of law raised by the
dispute;
(b)
the complexity of the dispute;
(c)
the public interest; and
(d)
the comparative ability of the opposing parties or
their legal representatives to deal with the dispute.’
[3]
For the sake of convenience, the challenge to the provisions of Rule
25(1)(b) will be referred to as the "Constitutional
challenge".
[4]
At the hearing of this matter, this Court, having regard to the
decision in the matter of
Norman Tsie Taxis v Pooe M (N.O)
(2005) 26 ILJ 109 (LC) pointed out that in order for such
Constitutional challenge to be ventilated and determined in this
Court,
various interested parties would have had to be notified
timeously of the hearing and be provided with a proper opportunity to
intervene. In this matter, such notification had not taken place and
it would therefore be inappropriate, and indeed irregular,
to proceed
in the absence of that step being taken. The Applicant's Counsel
suggested that the most expeditious manner for this
dispute to be
dealt with is for items 1.1 and 1.2 above to be considered in
isolation to the Constitutional challenge. If the Applicant
were to
succeed in respect of items 1.1 and/or 1.2 which in essence pertain
to the merits of the review, the Constitutional challenge
would of
itself be an academic debate.
[5]
I shall first consider the merits of the review and then the Second
Respondent's refusal to grant the Applicant legal representation
at
the arbitration hearing.
[6]
The evidence presented in the review application, as well as in the
disciplinary process and the arbitration hearing is summarised
below:
6.1
The Applicant was employed by the Third Respondent in the capacity of
a security officer.
She enjoyed a clean disciplinary record and eight
years completed service prior to her dismissal on 23 July 2009.
6.2
The Third Respondent renders security services to various customers
with whom it enjoys
service level agreements. One such agreement,
operative at that time, was with Automark Toyota. It was at the
latter's premises,
called East Rand Toyota ("the site"),
where the Applicant performed the duties of a security officer under
the supervision
and control of the Third Respondent.
6.3
The service level agreement between Automark Toyota and the Third
Respondent required that
two security guards be stationed at the
premises of Automark Toyota at all times and that at least one of
those guards must carry
a firearm.
6.4
In her founding affidavit in the review, the Applicant said that on 5
July 2009, she reported
for work at approximately 06h25 having
advised the Third Respondent's controller that she would be reporting
slightly late for
work. The Third Respondent's Branch Manager, Mr
Lucas Pagel ("Pagel") and Site Manager, Mr Patterson
("Patterson")
had already arrived on site. The Applicant's
colleague who was also a security guard, Mr Oupa Matlala ("Matlala"),
who
was meant to be on duty with her that day failed to report for
work and Patterson telephoned Matlala in the Applicant's presence
and
instructed him not to come to work due to his lateness.
6.5
Patterson and Pagel were about to leave the site when the Applicant
informed them that in
order for her to perform her duties she
required a firearm. Patterson refused to provide her with one and
referred to her as incompetent
to handle a firearm. The Applicant
tried to reason with Patterson because she had a valid permit issued
in terms of
Regulation 21(f)
of the
Firearms Control Regulations
promulgated
under the
Firearms Control Act, 6 of 2000
. The
Applicant's permit was valid for the period 06h00 on 4 July 2009 to
15h00 on 6 July 2009 and allowed her to carry a Rossi
.38 revolver.
Her pleas to Patterson fell on deaf ears. Patterson and Pagel left
her on site without providing the Applicant with
a firearm.
6.6
A short while later, at approximately 08h25 that morning, a Mr
Mahlangu ("Mahlangu")
arrived on site. He was unaware that
she was the only guard on duty. Mahlangu received a telephone call
from the Third Respondent's
controller requiring him to collect a
firearm and a replacement security guard, because Matlala had been
instructed not to report
for work that day due to his lateness.
According to the Applicant, Mahlangu only returned to the site at
13h45, and he brought
with him the replacement guard and a firearm.
Mahlangu instructed the Applicant to take possession of the firearm
but she refused
as she had no record or information about the
whereabouts of that particular firearm in the preceding six hours
since she had been
at work. An argument ensued between them after
which she chose to leave work "peacefully" rather than
engage in any further
debate on the matter.
6.7
The Applicant was invited to attend a disciplinary enquiry on 14 July
2009. She was asked
to respond to the three complaints, namely-
6.7.1 a
refusal to carry out a lawful instruction;
6.7.2
committing an act or acts detrimental to the interests of the Third
Respondent in that she had refused to take
possession of a "company"
firearm which had allegedly been left unattended and that she, as a
competent person, was duty
bound to take possession of the firearm as
she was aware of the various procedures that had to be followed in
respect of its safe
handling; and
6.7.3 placing
the national service level agreement between the Third Respondent and
Automark Toyota in jeopardy.
6.8
The Applicant, who was represented at her disciplinary hearing by a
colleague and a shop
steward, pleaded not guilty to these complaints.
Beyleveldt led the case for the Third Respondent. He called a single
witness,
Pagel, to testify and he gave evidence that –
6.8.1 he
instructed the Applicant's supervisor, Mahlangu, to proceed to the
site and re-issue the firearm to the Applicant.
He received feedback
from him later that morning that the Applicant was refusing to be
issued with the firearm or to take possession
thereof. Pagel said
this was the reason another security guard had to be taken to the
site; and
6.8.2 the
Applicant testified in her own defence and confirmed that she was on
duty at the site at 07h00 on 5 July 2009
and was present when
Patterson and Pagel arrived. They issued her with a warning for being
late. She did not have a firearm in
her possession. Pagel had already
taken the firearm away. She claimed Patterson insulted her and told
her she was not a competent
person to handle a firearm. The Applicant
confirmed that she refused to take the firearm from Mahlangu because
she wanted Patterson
to issue it to her. She was nervous that
Patterson and Mahlangu had set a trap for her because the firearm had
already been removed
by Pagel earlier that day.
6.9
The disciplinary enquiry chairperson, Mr J C Volbrecht, considered
the evidence before him,
called for factors in aggravation and
mitigation of an appropriate penalty, and took a decision to dismiss
her. She appealed but
she was unsuccessful and hence her timeous
dispute referral to the First Respondent. Following a failure to
reach any agreement
in the conciliation process, the dispute was
referred to arbitration before the Second Respondent.
6.10 At
the arbitration hearing, the Third Respondent led the evidence of
Beyleveldt who could only report on
what took place during the
disciplinary hearing.
6.11 In
contrast, the Applicant testified that when she came on shift at
approximately 07h00 on 5 July 2009, she
found Patterson and Pagel at
the site. When they were about to leave the premises, she reminded
them about her need for a firearm.
She received abuse from Patterson,
with whom she had not previously worked, and Pagel rebuked him for
insulting her. Patterson
had accused her of being an incompetent. She
said Patterson showed her the firearm but would not give it to her.
She tried to explain
that she was in possession of a valid firearm
permit but to no avail. Patterson telephonedMatlala to instruct him
not to come to
work due to his lateness.
6.12
The Applicant claims she was left to carry on her duties without a
firearm. She said "they", with
reference to Patterson and
Pagel, would re-issue the firearm once a replacement guard was
brought on site. Mahlangu, her supervisor,
arrived at 08h20 that
morning to complete the occurrence book. He received a call from the
controller and was instructed to collect
the firearm, as Mahlangu was
not in possession of one at the time. The Applicant continued to work
alone until 13h45 when Mahlangu
arrived on site with a replacement
guard. She would not take the firearm from Mahlangu because she did
not know its whereabouts
in the period from 07h00 to 13h45. In her
evidence, at pages 129 and 130 of the Record, the Applicant
testified-
‘
...if
I take this firearm with me it is a danger to me .... I was going to
fall on the wrong side of the law. ...when I refused
to take the
firearm, Mr Mahlangu phoned Mr Patterson and Mr Pagel informed them
that I refusing to take the firearm, I've said
the very person who
took the firearm from site must come and re-issue it to me so as to
see all the permits is there, we write
a permit every day it is on a
file to come and double check on the file to be said (sic) that I am
a competent somebody...’
6.13
She admitted that she and Mahlangu argued and that she decided to
leave site albeit that it was before the
end of her shift.
[7]
It is common cause in the arbitration hearing that the Applicant
refused to carry out an instruction from her supervisor, Mahlangu,
that she accepted the firearm. The question that arises is whether
that refusal was reasonable in the circumstances. This question
was
not addressed by the Second Respondent in his award. The Second
Respondent made a finding that the Applicant breached an important
rule and that the instruction she had been given was a lawful one.
The Second Respondent found that she knew, or ought to have
known the
rules, and was ‘the architect of her own misfortune’.
(see: Records of Proceedings page 26).
[8]
Whether her justification for refusing to accept the firearm was
reasonable was queried by Beyleveldt when he was under
cross-examination
in the arbitration hearing (see: Record of
Proceedings page 124) where a debate ensued as to why it took so long
to bring the firearm
back on site, namely a period of some six hours,
from 07h00 to 13h45. Beyleveldt speculated that it was due to the
time taken to
locate another guard who could be brought on site as
the Third Respondent did not maintain a pool of spare guards who
could fill
in for a member of staff who was suddenly absent from
work. However, what is important about this debate is that there was
no evidence
to prove the safekeeping and whereabouts of the firearm
during those crucial six hours. The firearm had been handled by
various
people in that time. The Applicant's concerns remained
unanswered, including the absence of the required paperwork to prove
its
safekeeping in that relevant period.
[9]
The Applicant's concerns were known to the Third Respondent from as
far back as the disciplinary hearing and this was fortified
by her
grounds of appeal when she claimed that the relevant documents, which
would prove the passage of the firearm from person
to person on that
fateful day, such as the ‘firearm register and records,’
were not produced.
[10]
Beyleveldt testified in the arbitration hearing that the firearm had
been taken to the Third Respondent's armoury by "the
Managers"
but there was no corroborative evidence from any eye witnesses and no
documentary evidence to support his evidence.
Beyleveldt did not
witness these events and his evidence amounted to hearsay.
Accordingly, such evidence is not admissible in the
absence of a
cogent reason why the eye witnesses were not called to testify. See:
Secunda Supermarket CC t/a Secunda Spar and others v Dreyer NO and
other
(1998) 19 ILJ 1584 (LC).
[11]
Inexplicably, the Third Respondent did not call Patterson, Pagel or
Mahlangu to testify. It bore the
onus
in the arbitration
hearing to prove that the Applicant's dismissal was substantively
fair. It was incumbent upon it to lead the
necessary and relevant
evidence. Patterson was a material witness who could explain his
interactions with the Applicant early that
morning. He and Pagel knew
what happened to the firearm in the crucial six hour period. Mahlangu
was a material witness about the
steps he took during that same
period and his interactions with the Applicant at 13h45 that day when
she refused to accept the
re-issued firearm from him. Was the
Applicant's reason for refusing the firearm justifiable? Was she
within her rights legally
to refuse? On her version, she would have
put herself on the ‘wrong side of the law.’ This Court is
not treated to
the intricacies of that argument because the evidence
was not led in the arbitration. One worse, the Second Respondent was
oblivious
to this argument. He did not query why that evidence was
not tendered, and he did not caution the Third Respondent about the
potential
consequences of not leading that evidence, namely that an
adverse inference may be drawn from a party's failure to call
material
witnesses. See:
Blue Ribbon Bakeries v Naicker and Others
(2000) 12 BLLR 1411
(LC).
[12]
Furthermore, the Second Respondent failed to make a credibility
finding in respect of the Applicant's testimony, more especially
where her version about her refusal to adhere to the instruction to
accept the firearm from Mahlangu was not consistent. In the
disciplinary hearing, the Applicant said her refusal was based on her
insistence that Patterson should re-issue the firearm to
her because
he had complained that she was an incompetent person. In the
arbitration hearing, by way of contrast, she said she
could not
accept the firearm because she could not account for its use and/or
whereabouts during the relevant six hour period.
Did the Applicant
have reason to refuse the instruction or did she adopt an
unco-operative approach and act in an insubordinate
manner?
[13]
In the circumstances, the Second Respondent's reliance on hearsay
evidence and his failure to apply the appropriate tests to
evaluate
the evidence presented by the Applicant, the Second Respondent
arrived at a conclusion that a reasonable decision-maker
could not
reach. The award stands to be reviewed and set aside.
[14]
With regard to the Second Respondent's decision to refuse the
Applicant's application for legal representation, the Second
Respondent failed to apply
Rule 25(1)(b)
and instead fashioned his
own test to determine if such request for legal representation was
warranted. He applied a test of ‘fairness
and justice’,
the origins of which, for the purposes of this aspect, escape one. He
paid no attention to the comparable strengths
of the parties to
represent themselves, nor did he have regard to the obvious legal
complexities that underpin this dispute. The
Second Respondent failed
to exercise the discretion bestowed upon him judiciously and
accordingly his refusal to allow the Applicant
to be legally
represented cannot stand.
[15]
On the issue of costs, given that this Court finds partially for the
Applicant, and no order is made on the fairness of her
dismissal,
costs in this matter would not be appropriate.
[16]
In the circumstances, I make an Order in the following terms:
16.1
The award is reviewed and set aside.
16.2
The dispute about the fairness of the Applicant's dismissal is
remitted back to the First Respondent to be
arbitrated
de novo
before a Commissioner other than the Second Respondent.
16.3 No
order as to costs.
__________________
LEPPAN
Acting Judge of the
Labour Court
APPEARANCES:
FOR
THE APPLICANT:
Mr G Rautenbach
SCInstructed
by – Du Randt du Toit
Pelser
Inc
FOR
THE THIRD RESPONDENT:
Blake Bester Inc.
[1]
66 of 1995.