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[2012] ZALCCT 49
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G4S Security Services SA (Pty) Ltd v Du Plessis NO and Others (C 716/10) [2012] ZALCCT 49 (27 February 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not reportable
Of
interest to other judges
case
no: C 716/10
In the matter between:
G4S SECURITY SERVICES SA
(PTY) LTD
Applicant
and
COMMISSIONER DANIEL DU PLESSIS N.O.
First Respondent
ccma
Second Respondent
christopher l mukefe
Third Respondent
Heard
:
22 February 2012
Delivered
:
27 February 2012
Summary:
Review – LRA s 145 – within range of
reasonable outcomes – not reviewable.
JUDGMENT
STEENKAMP J
Introduction
This is an application in terms of section 145 of the LRA to review
and set aside an arbitration award by the first respondent
("the
arbitrator”) in which he found the dismissal of the third
respondent ("the employee") to have been
procedurally
fair, but substantively unfair. He ordered the applicant to
reinstate the employee, coupled with a final written
due to absence
without leave and a final written warning due to insubordination.
The warnings were to be valid for 12 months
and back pay was limited
to 3 months.
The applicant submits that the conclusion reached by the arbitrator,
based on the evidence before him, is so unreasonable that
no other
arbitrator could have come to the same conclusion.
1
Background facts
The employee was a security guard. He was employed by the applicant
from 21 October 2005 until his dismissal on 29 January 2010.
He was stationed at the University of Cape Town at a site known as
the Chinese school. On 5 January 2010 he was due to take his
lunch
break from 1400 until 1500. The security guards had to fill in a
register, setting out when they went on lunch, at the
control centre
known as Burnage House. This centre is about a seven minutes’
walk away from the Chinese school. He left
his site between 10 and
15 minutes early, but noted in the attendance register at Burnage,
as well as in his pocketbook, that
he only went on lunch at 1400.
The head of the company's operations at UCT, Mr Pierre Heydenrych,
saw the employee at the side of the road before 1400 on 5
January
2010. When he stopped to question him, the employee said that he was
on his lunch break and he was going to the shops
to buy food.
The employee was called to a disciplinary hearing to answer to the
following charges
2
:
6.1. “
(Clause 5): Misconduct in that you
left your post without being properly relieved or given permission to
do so. On the 5
th
of January 2010; at about 13h45. In doing so you compromised the
effective security operation of such post (Chinese school) and
placed
the company in breach of its service.
6.2. (Clause 6.1): Misconduct in that you were
dishonest in the course of duty. On the 5
th
of January 2010 in that you represented to management that you were
on an authorised lunch break; entries specified company documents
[
sic
];
i.e. registers and pocket book.
6.3. (Clause 6.4): Misconduct in that you made a
fraudulent entry in your pocket book on the 5
th
of January 2010 and further supported in relevant registers.
6.4. (Clause 6.5): Misconduct when you refused to
obey a lawful instruction given to you by one of the G4S controllers
on the 5
th
of January 2010.”
He was found guilty and dismissed, inter alia on the grounds that he
understood the meaning of “desertion of post”
–
the clause in the company’s disciplinary code to which the
first charge of misconduct referred.
Evidence at arbitration
Heydenrych testified that security personnel were not allowed to
leave their posts early when going on lunch. The entries in
their
pocketbooks and the register at Burnage also had to reflect
accurately when they actually left their site.
The other witnesses for the applicant could not verify whether a
relief guard took over for the employee during his lunch break
on
the day in question.
The employee testified that, although his lunch break commenced at
1400, he could leave a few minutes early in order to arrive
at
Burnage at 1400. He also claimed that he had not deserted his post
because the employer knew where to contact him.
The arbitration award
The arbitrator, in discussing the first charge, had regard to the
definition of “desertion of post” as described
in the
company’s disciplinary code. The first charge referred to
clause 5 of the code, under the heading “post desertion”.
It is described as follows:
“
This
offence relates to the situation whereby an employee, without valid
permission or cause, leaves his/her post of duty (i.e.
at a client’s
premises) without having been properly relieved; thereby compromising
the effective security operation of such
post and/or premises, and
placing the company in breach of its service contract with such
client.”
3
The arbitrator pointed out that the code also refers to
“absenteeism” and “poor timekeeping”, which
includes latecoming or leaving a post early. The code includes
guidelines pertaining to sanctions for different types of
misconduct.
The suggested sanctions range progressively from a
warning to dismissal for being “absent without leave for 3+
shifts”.
“Poor timekeeping” is described as
follows:
“
Specific
situations in terms of this offence would include reporting late for
duty; leaving work early (which may also include ‘desertion
of
post’); extended or unauthorised breaks during working hours;
neglecting and booking on duty or clocking in procedure
and
loitering.”
The arbitrator referred to the distinction between “desertion”
and “AWOL” in military terms. This was
entirely
inappropriate in the workplace environment, even for a security
company; nevertheless, it is so that the actual misconduct
could as
well have been dealt with as being absent without leave (ie “poor
timekeeping” in terms of the employer’s
code) and would
have attracted a lesser sanction than dismissal for a first offence.
The arbitrator further said that it was “common cause”
that the employee could leave the site 5-10 minutes before
the start
of the lunch break and that “everybody left their sites early”
in order to be at Burnage at the start of
the lunch break. That
recordal of the evidence is wrong. It was the employee’s
evidence, but it was not common cause. The
arbitrator nevertheless
found that the employee was not on his way to Burnage, but accepted
the employer’s evidence that
he was on his way to the shops.
He also pointed out that the employee “was not altogether a
truthful witness” and
that he kept “changing his story”.
He accepted that the employee did not have permission to leave his
site early
and “clearly did something wrong”; but he
found that he should have been given a final written warning for
being
absent without leave.
The arbitrator also found that the employee had been dishonest; he
lied to Heydenrych. However, there was no evidence that the
trust
relationship had broken down. Therefore reinstatement remained the
primary remedy, albeit coupled with two final written
warnings –
one for unlawful absence and one for not adhering to a lawful
instruction.
The latter final written warning arose from the fact that the
employee only acceded to the instruction to return to his post
his
supervisor had to repeat it in the absence of a senior controller.
The arbitrator made a factual error with regard to the employee’s
entry in his pocketbook. He found that the employee recorded
that he
was on lunch from 1400 to 1500, and that it was not fraudulent
because that was the assigned lunch break. But that misses
the point
that the employee recorded his lunch break as having been from 1400
to 15oo when he had in fact left his post some
15 minutes earlier.
Against this background the arbitrator found that the dismissal was
procedurally fair but substantively unfair, and replaced
it with a
sanction of two final written warnings; and ruled that the employee
was to be reinstated, but was only entitled to
three months’
back pay.
Evaluation
In considering the grounds of review – aimed at the findings
on the misconduct itself, the appropriate sanction and the
question
of whether the trust relationship had broken down – I must be
guided by the reminder that this a review, not an
appeal.
In
Sidumo
4
the Constitutional Court held that the arbitrator’s conclusion
must fall within a range of decisions that a reasonable
decision-maker could make. And the reasonableness test is still
aptly described in the pre-
Sidumo
case of
Computicket v
Marcus NO and others
5
:
“
The
question I have to decide is not whether [the arbitrator’s]
conclusion was wrong but whether ... it was unjustifiable
and
unreasonable.”
And in
Fidelity Cash Management Service v CCMA & others
6
Zondo JP applied the
Sidumo
test thus:
“
It
will often happen that, in assessing the reasonableness or otherwise
of an arbitration award or other decision of a CCMA commissioner,
the
court feels that it would have arrived at a different decision or
finding to that reached by the commissioner. When that happens,
the
court will need to remind itself that the task of determining the
fairness or otherwise of such a dismissal is in terms of
the Act
primarily given to the commissioner and that the system would never
work if the court would interfere with every decision
or arbitration
award of the CCMA simply because it, that is the court, would have
dealt with the matter differently.”
And:
“
The
test enunciated by the Constitutional Court in
Sidumo
for determining whether a decision or arbitration award of a CCMA
commissioner is reasonable is a stringent test that will ensure
that
such awards are not lightly interfered with. It will ensure that,
more than before, and in line with the objectives of the
Act and
particularly the primary objective of the effective resolution of
disputes, awards of the CCMA will be final and binding
as long as it
cannot be said that such a decision or award is one that a reasonable
decision-maker could not have made in the circumstances
of the case.
It will not be often that an arbitration award is found to be one
which a reasonable decision-maker could not have
made but I also do
not think that it will be rare that an arbitration award of the CCMA
is found to be one that a reasonable decision-maker
could not, in all
the circumstances, have reached.”
This is one of those cases where the arbitrator’s sense of
fairness must prevail and the court should not lightly interfere.
The arbitrator accepted that the employee had committed misconduct;
and on that basis, he had to be punished. But dismissal,
in the view
of the arbitrator, was unfair.
With regard to the breakdown – or not – in the trust
relationship, it is common cause that the employer led no evidence
in this regard. Its representative did make some submissions in
argument, but the arbitrator correctly pointed out that no evidence
of a breakdown was led. In this regard the Supreme Court of Appeal
held in
Edcon Ltd v Pillemer NO & Others
7
:
“
It is
inevitable that courts, in determining the reasonableness of an
award, have to make a value judgment as to whether a commissioner’s
conclusion is rationally connected to his/her reasons taking account
of the material before him/her. That this is the correct approach
has
been stated on a number of occasions by the LAC, this court in the
Sidumo matter as well as the Constitutional Court in the
same matter.
In my view, Pillemer’s finding that Edcon had led no evidence
showing the alleged breakdown in the trust relationship
is beyond
reproach. In the absence of evidence showing the damage Edcon asserts
in its trust relationship with Reddy, the decision
to dismiss her was
correctly found to be unfair. She cannot be faulted on any basis and
her conclusion is clearly rationally connected
to the reasons she
gave, based on the material available to her. She did not stray from
what was expected of her in the execution
of her duties as a CCMA
arbitrator. The challenge, therefore, to Pillemer’s award on
this basis is without merit.”
The same goes for the arbitrator’s award in this matter. As
the Constitutional Court stated in
Sidumo
8
:
“
In
respect of the absence of dishonesty, the Labour Appeal Court found
the commissioner’s statement in this regard ‘baffling’.
In my view, the commissioner cannot be faulted for considering the
absence of dishonesty a relevant factor in relation to the
misconduct. However, the commissioner was wrong to conclude that the
relationship of trust may have not been breached. Mr Sidumo
was
employed to protect the mine’s valuable property which he did
not do. However, this is not the end of the enquiry. It
is still
necessary to weigh all the relevant factors together in light of the
seriousness of the breach.”
This is what the commissoner did in this case. And, as Davis JA
pointed out in
Ellerine Holdings Ltd v CCMA & others
9
:
“
[A]
court must be careful to parse an award by [an arbitrator] in the
same fashion as one would an elegant judgment of the Supreme
Court of
Appeal or the Constitutional Court. These awards must be read for
what they are, awards made by arbitrators who are not
judges. When
all of the evidence is taken into account, when there is no
irregularity of a material kind i nthat evidence was ignored,
or
improperly rejected, or where there was not a full opportunity for an
examination of all aspects of the case, then there is
no gross
irregularity...”
The effect of the arbitration award is that the employee did not
lose his employment, but he would lose his wages for two months;
and
he would be subject to two written warnings valid for 12 months.
This is a not insignificant sanction, and one that falls
within a
range of reasonable sanctions, given the misconduct: i.e. that the
employee was away from his post for about 15 minutes
without
permission, and that he lied about that fact (to his supervisor and
in making the relevant entries). This was coupled
with the fact that
he had had a clean disciplinary record for the duration of his
employment, being almost five years.
Conclusion
The arbitrator arrived at a decision on sanction, based on the
proven misconduct, that falls within a range of reasonable
sanctions.
It is the arbitrator’s sense of fairness that must
prevail in this regard, not that of the employer or of this Court.
The
conclusion reached by the arbitrator is one that a reasonable
arbitrator could reach, even if another arbitrator may have arrived
at a different conclusion.
The award is not open to review, as opposed to appeal. With regard
to costs, both parties submitted that costs should follow
the
result. I agree.
Order
The application is dismissed with costs.
_______________________
Steenkamp J
APPEARANCES
APPLICANT:
W Hutchinson
Instructed by Moodie &
Robertson, Johannesburg.
THIRD RESPONDENT:
K Allen
Instructed by KT
Potelwa Inc, Cape Town. Bouwers Inc, Johannesburg.
1
i.e.
in accordance with the test set out in
Sidumo & another v
Rustenburg Platinum Mines Ltd & others
[2007] 12 BLLR 1097
(CC).
2
Sentence
construction as in the original.
3
The
Code refers to the company’s “clients” throughout,
when it should properly refer to its customers.
4
Supra
paras 118-119.
5
(1999)
20
ILJ
343 (LC) 346.
6
[2008]
3 BLLR 197
(LAC) paras [98] and [100].
7
[2010]
1 BLLR 1
(SCA) para [23] (per Mlambo JA).
8
Supra
para [116].
9
[2008]
JOL 2287
(LAC) p 13.