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[2012] ZALCJHB 131
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Ocean Basket Airport v Bargaining Council for Restaurant Catering and Allied Trades and Others (JR1516/2009) [2012] ZALCJHB 131; (2013) 34 ILJ 1569 (LC) (2 November 2012)
7
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR1516/2009
In the matter between:
OCEAN BASKET AIRPORT
...........................................................................
Applicant
and
BARGAINING COUNCIL FOR RASTUARANT
CATERING AND ALLIED TRADES
..................................................
First
Respondent
COMMISSIONER MOSALA MATLATLE
.....................................
Second
Respondent
SAACOWU obo PAUL MAKHULA
..................................................
Third
Respondent
Heard: 16 October 2012
Delivered: 02 November 2012
Summary: After dismissing the
individual third respondent for dishonesty the applicant sought to
reinstate him for purposes of holding
an appeal hearing to cure
procedural defects. He refused the reinstatement. The second
respondent found the dismissal substantively
fair but procedurally
unfair and order compensation. The finding falls within the range of
reasonableness and not reviewable. Review
application in terms of
section 145 of the LRA.
JUDGMENT
___________________________________________________________________
LALLIE J
The applicant launched this
application in terms of section 145 of the Labour Relations Act, 66
of 1995 (the LRA) to review and
set aside an arbitration award in
which the second respondent (the arbitrator) found the individual
third respondent’s
dismissal procedurally unfair, but
substantively fair. The third respondent opposed the application.
Factual background
The individual third respondent
(Makhula) was one of the applicant’s three managers. On the
night preceding his dismissal
the managers locked the takings of the
day in a safe after cashing up. The following morning an amount of
R2500.00 was missing
from the safe. Makhula later confessed that he
had removed the money. He explained that he had placed it in a part
of the safe
where it could not be seen by his colleagues to force
one of them to talk to him in an effort to restore their working
relationship.
After statements were taken from the managers Makhula
was dismissed. The third respondent trade union (SAACOWU) intervened
and
the applicant offered to reinstate him. He rejected the offer
and challenged the fairness of his dismissal at the first respondent
where he was granted compensation after his dismissal had been found
procedurally unfair.
Grounds for review
The applicant sought to rely on one
or more of the following grounds for review:
‘
3.1.1
The Commissioner committed a gross irregularity when arriving at her
conclusion in that she negated the fact that the Applicant
did meet
with the Third Respondent after receipt of a letter dated 29
th
May calling for a meeting. The Applicant invited the Third respondent
to come back to work to attend a Denova (sic) hearing to
which the
Third Respondent declined in writing (DC1)
3.1.2
The third respondent in paragraph 4 of their response clearly states
that they did not want to return to work in order for
the Applicant
to correct the procedural defects.
3.1.3
The Third Respondent was questioned on whether his Union discussed
with him the risks and president (sic) law with regards
to the
employer’s right to correct procedural defects and he responded
that he was in fact advised of these risks.
3.1.4
The Commissioner’s ruling was not reasonable in relation to the
evidence presented and the respective statements by
the witnesses.
The Commissioner clearly disregarded the fact that the Respondent
invited the Applicant to a disciplinary hearing
and an appeal hearing
immediately after it realised its procedural irregularity and that
the Applicant’s Union refused to
attend the hearing. The Labour
Court has been clear on the fact that the employer does have the
right to correct its procedures
and the refusal by an employee to
attend the procedures would then not lead to an unfair dismissal.’
The arbitration award
The arbitrator noted that it was
common cause that both the substantive and procedural fairness of
Makhula’s dismissal was
in dispute. She accepted the evidence
of the applicant’s chief operating (sic) officer, Mr. Locker
(Locker) that he requested
statements from all three managers that
were on duty, including Makhula, and after reading them he took the
decision to dismiss
Makhula. She further considered the concession
given by Locker under cross-examination that he did not issue
Makhula with a notice
to attend a disciplinary hearing. The
arbitrator also accepted the evidence of Mr. Ngwenya (Ngwenya) who
testified on behalf
of the applicant that Makhula was not asked if
he needed a representative or time to prepare for the hearing and
concluded that
Makhula’s dismissal was procedurally unfair.
The arbitrator found that Makhula
acted dishonestly by removing an amount of R2 500.00 from the take
away box in the safe where
money was kept after cashing up and
placing it in the same safe where other employees with access to the
safe could not see it.
She concluded that Makhula’s dismissal
was substantively fair. She ordered the applicant to pay Makhula
compensation in
the amount of R27 500.00, which is equivalent to his
five months’ remuneration for the procedurally unfair
dismissal.
The law
It is trite that
the test for review of arbitration awards is whether the decision
reached by the arbitrator is one which a reasonable
decision-maker
could not reach.
1
The standard of
reasonableness is applicable to both the conduct and outcome of
arbitration.
2
Evaluation
The applicant argued that the
arbitration award stands to be reviewed and set aside on the grounds
that Makhula’s refusal
to attend an appeal hearing to rectify
the procedural defects of his dismissal disqualified him from
receiving compensation for
the procedural unfairness of his
dismissal. It is common cause that after Makhula’s dismissal
SAACOWU addressed a letter
to the applicant on 29 May 2008 proposing
an urgent meeting to try and resolve the dispute amicably and in a
convenient and effective
manner. It was followed by the following
letter:
‘
Your
letter dated 11 June 2008 refers.
Please
note that we have taken instructions from our member regarding the
abovementioned case.
Our
member can only appear provided he has new evidence to present in
this case. Mr. ThopaneMakola does not have new evidence for
a fair
reason relating to his conduct and whether the procedure was fair or
not.
The
applicant seeks compensation should he succeed in his claim and does
not see any reason for going back to work only for employer
to
rectify his procedural defects.
In
cases where dismissal is not in dispute, the honours (sic) to prove
that such dismissal is fair, lies with the employer.
We
therefore request the bargaining Council to set the matter down for
conciliation.’
The applicant also
argued that the arbitration award had to be reviewed on the grounds
that it is dialectically unreasonable as
had the arbitrator attached
due weight to the evidence of the offer of reinstatement, the
arbitration award would have been different.
The applicant sought to
rely on a number of cases including
Technikon
SA v Mojelaand Others
3
and Kemp t/a
Centralmed v Rawlins
4
in arguing that
the arbitrator acted unreasonably by ordering the applicant to pay
Makhula compensation for the procedural unfairness
of his dismissal
on the grounds that he unreasonably refused the offer of
reinstatement for the purpose of an appeal hearing
to be held to
rectify the procedural defects.
The present matter
is distinguishable from the decision in
Kemp
t/a Centralmed (surpa)
in
that in the latter matter the respondent rejected an offer of
unconditional reinstatement for no valid reason. The following
are
some of the reasons given by the LAC for its decision at page 2691J
to 2692D:
‘
[30]
In my view the following factors justify the conclusion that the
respondent should have been denied compensation in this case:
(a)
a genuine and reasonable offer of reinstatement was made to her which
she did not accept;
(b)
had the respondent accepted the appellant’s offer of
reinstatement –
i.
she would not have suffered any financial loss which she may have
suffered as a result of her dismissal;
the
dispute between the parties would have been resolved without the
appellant having to incur the legal costs that he must
be taken to
have incurred in defending the unfair dismissal claim and the
costs relating to this appeal;
the
respondent would not have incurred the legal costs that she must
be taken to have incurred through this litigation both
in the
Labour Court and in this Court.
(c)
for some time after the appellant had made the offer of reinstatement
to the respondent, the respondent did not even bother
to respond to
the appellant – and that is conduct which is unacceptable,
particularly when one of the parties is trying to
have the dispute
resolved. Such conduct undermines one of the primary objects of the
Act which is the effective (which includes
expeditious) resolution of
disputes: it is better that disputes be resolved through conciliation
than through litigation or arbitration
or industrial action.’
Also the
Technikon SA
case
(
supra)
can be distinguished from the present matter in that,
in the former, the respondent refused an unconditional offer of
reinstatement
and offered no reasonable explanation for the refusal.
The refusal appeared to be based on an interest in financial
settlement
only.
I am not convinced that the
applicant’s reinstatement offer was genuine and reasonable. It
cannot be said in the present
matter that had Makhula accepted the
offer of reinstatement he would not have suffered financial loss
which he suffered as a
result of the dismissal, because the purpose
of offering him reinstatement was to cure the procedural defects of
his dismissal.
Had Makhula accepted the reinstatement offer, the
applicant would have cured the procedural defects of his dismissal
and he would
have been dismissed again in a procedurally fair manner
and he would have continuedto suffer the financial loss which comes
with
dismissal. A possibility existed that the dispute between the
parties would remain unresolved and they would have gone through
the
same dispute resolution process which they have gone through now
that the third respondent has rejected reinstatement. In
the
circumstances, I find that the arbitration award falls within the
range of reasonableness and there are therefore no grounds
to review
it.
Order
In the premises, the following order
is made:
The application for review is
dismissed;
There is no order as to costs.
_______________
Lallie J
Judge of the Labour Court
APPEARANCES:
FOR THE APPLICANT: Ms. Dippenaar
of Du Rand Du ToitPelser Attorneys
FOR THE RESPONDENTS: MC Netshisumbewa
of SAACOWU
1
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097
at para 110.
2
Gaga
v Anglo Platinum Ltd and Others
[2012] 33 ILJ 329 (LAC).
3
(2003)
24
ILJ
1737 (LC).
4
(2009)
30
ILJ
2677 (LAC).