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[2012] ZALCCT 17
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South African Breweries Ltd v Commission for Conciliation Mediation and Arbitration and Others (C 665/2011) [2012] ZALCCT 17; [2012] 9 BLLR 936 (LC); (2012) 33 ILJ 2945 (LC) (24 May 2012)
REPUBLIC OF SOUTH AFRICA
Reportable
Of
interest to other judges
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
case
no: C 665/2011
In the matter between:
SOUTH AFRICAN BREWERIES LTD
Applicant
and
CCMA
First Respondent
TARIQ JAMODIEN N.O.
Second Respondent
CEDRIC KARSTENS
Third Respondent
Heard
:
16 May 2012
Delivered
:
24 May 2012
Summary:
Review – dismissal – arbitrator’s
sense of fairness – no deference to employer –
arbitration is a
hearing
de novo
– arbitrator decides
whether dismissal was fair.
JUDGMENT
STEENKAMP J
Introduction
An arbitrator must decide whether the dismissal of an employee was
fair. In doing so, whose sense of fairness must prevail? Is
the
arbitrator’s decision akin to sitting in review on that of the
employer, as some commentators would have it, or must
the arbitrator
decide the question afresh?
More than five years after the decision of the Constitutional Court
in
Sidumo & another v Rustenburg Platinum Mines Ltd
&
others
1
there still appears to be no clarity in this regard, given the
arguments before this court. I shall attempt, with some trepidation,
to articulate the test again against the background of this case.
Background facts
The third respondent, Cedric Karstens (“the employee”)
started working for the applicant in 1989. He was dismissed
for
misconduct on 15 March 2011. At the time of his dismissal, he was
employed as a process operator on the production line.
As most readers would be aware, the applicant (SAB) bottles beer.
The allegations of misconduct arise from an incident on 7 February
2011, when the employee allegedly opened a bottle of beer and drank
some of it. He was disciplined and dismissed for the following
allegations of misconduct:
“
1.
Drinking alcohol on duty on 7 February 2011;
2. Unauthorised removal and
consumption of SAB products on site on 7 February 2011;
3. Operating machinery after
having consumed alcohol in the workplace on 7 February 2011.”
An internal appeal was dismissed. The employee referred an unfair
dismissal dispute to the CCMA (the first respondent). Conciliation
failed. The employee referred the dispute to arbitration. The
arbitrator, Mr Tariq Jamodien (the second respondent), found that
the dismissal was substantively unfair. He ordered SAB to reinstate
the employee, not retrospectively, but prospectively from
15 August
2011. The employee was effectively suspended without pay for some
four and a half months. His reinstatement was also
coupled with a
final written warning, effective for 12 months (in accordance with
SAB’s disciplinary procedure) from the
date of reinstatement.
The award
The arbitrator found that the employee had entered the SAB
laboratory on 7 February 2011 at about 05h17 and had taken a brown
labelled bottle – apparently a beer bottle – from the
fridge where it was stored; opened it; and drank from it. He
rejected the employee’s version that the bottle contained
carbonated “D-water” as this component was no longer
carbonated. On video footage with sound that showed the employee
opening the bottle, a clear “fizz” sound could be
heard,
from which he inferred that the contents were carbonated. It was
beer, not water. No miracle had occurred to change it
from one to
the other.
The arbitrator took into account that SAB takes a tough stance on
alcohol-related misconduct. However, he pointed out that he
should
“holistically assess” the merits of the parties’
respective cases and expressed the view that he should
“come
to a decision which is even-handed and fair.” Taking into
account that dismissal is reserved for the most serious
cases of
misconduct, particularly in circumstances where the employment
relationship cannot be reconstructed, he concluded that
dismissal
was too harsh a sanction – in other words, unfair.
In doing so, the arbitrator had regard to
Sidumo,
where the
Constitutional Court enjoined arbitrators to take the following
factors into account in determining whether a dismissal
was fair:
The totality of circumstances;
The importance of the rule that had been breached;
The reason the employer imposed the sanction of dismissal;
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
The employee’s service record.
The arbitrator also pointed out that, in
Fidelity Cash Management
Services v CCMA & others
2
,
the Labour Appeal Court held that in considering the totality of
circumstances, the commissioner would have to answer the question
whether dismissal was in all of the circumstances a fair sanction.
In answering that question he or she would have to use his
or her
own sense of fairness.
The arbitrator considered drinking on duty and the unauthorised
taking of the beer to be the main elements of the allegations
levelled against the employee. With regard to the third allegation –
that of operating machinery after having consumed
alcohol – he
took into account that the employee had undergone a breathalyser
test that registered 0,00% alcohol. This
implied, to the
arbitrator’s mind, that the employee had not placed the
business at risk.
The arbitrator further found that the evidence only established that
the employee had taken a few sips of beer. He concluded:
“
To my
mind this misdemeanour, although serious, does not warrant dismissal,
particularly given that the only hint of similar incidents
regarding
Mr Karstens was a matter that happened 18 years ago. I am of the view
that in these circumstances progressive discipline
would have
sufficed.”
The reference to a matter that happened 18 years ago was that the
employee had gone through SAB’s Employee Assistance Programme
18 years ago after he was found to have been over the prescribed
alcohol limit. Other than that, he had 22 years’ service
with
a clean disciplinary record.
The arbitrator also noted that there was no actual evidence that the
tenets of trust and good faith that existed particularly
between the
employee and his manager, Mr Macaulay, had forever been rendered
irretrievable. Taking into account the totality
of circumstances, he
found that after 22 years’ employment and with a generally
unblemished disciplinary record, the employee
deserved a sanction
short of dismissal. This sanction was an effective suspension
without pay for four and a half months, coupled
with a final written
warning.
The test on review
The test that this court must apply in deciding whether the
arbitrator’s decision is reviewable has been rehashed
innumerable
times since
Sidumo
: It is whether the conclusion
reached by the arbitrator was so unreasonable that no other
arbitrator could have come to the same
conclusion.
In this regard, the Supreme Court of Appeal has recently had cause
to remind this court that the test is that of review and not
appeal.
3
In
Sidumo
4
the Constitutional Court very clearly 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.”
As Waglay DJP recently pointed out in
The National Commissioner
of the South African Police Service v Myers & Others
:
6
“
Whatever
one’s personal view may be, the test as set out in
Sidumo
... is whether or not the arbitrator’s decision that dismissal
is an appropriate sanction is a decision that a reasonable
decision-maker could reach.”
Having considered the evidence at arbitration, the learned DJP held:
“
I
cannot accept that the arbitrator’s decision fell outside of
the band of decisions to which reasonable people could come.”
In
Fidelity Cash Management Service v CCMA & others
7
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.”
It is against this background that the applicant’s grounds of
review must be assessed.
Grounds of review
The applicant raises four grounds of review. I shall discuss them
individually, but in essence they are these:
The commissioner committed a material error of law by imposing a
sanction which he deemed to be appropriate rather than determining
whether the applicant’s decision to dismiss was fair.
The commissioner committed misconduct or a gross irregularity in
that he did not properly considered the documentary evidence
presented at the disciplinary hearing, namely the applicant’s
disciplinary code, in terms of which the three instances
of
misconduct amounted to dismissible offences.
The commissioner committed misconduct or a gross irregularity in
that he placed too much weight on immaterial evidence, being
the
breathalyser test results.
The commissioner acted unreasonably by finding that the applicant’s
decision to dismiss was unfair, despite finding that
the employee
was “guilty”, ie he had committed the misconduct
complained of.
The fairness test
The first ground of review – and the one most strenuously
argued by Mr
Leslie
– is that the commissioner
committed a material error of law by imposing a sanction which he
deemed to be appropriate rather
than determining whether the
applicant’s decision to dismiss was fair.
In this regard, he relied particularly on the following
dictum
of Navsa AJ in
Sidumo:
8
“
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.”
But this paragraph must be read in the context of his earlier
discussion:
9
“
It is
a practical reality that, in the first place, it is the employer who
hires and fires. The act of dismissal forms the jurisdictional
basis
for a commissioner, in the event of an unresolved dismissal dispute,
to conduct an arbitration in terms of the LRA. The commissioner
determines whether the dismissal is fair. There are, therefore, no
competing ‘discretions’. Employer and commissioner
each
play a different part. The CCMA correctly submitted that the decision
to dismiss belongs to the employer but the determination
of its
fairness does not. Ultimately, the commissioner’s sense of
fairness is what must prevail and not the employer’s
view. An
impartial third party determination on whether or not a dismissal was
fair is likely to promote labour peace.”
The Labour Appeal Court very recently discussed the
Sidumo
test
in
Wasteman Group v SAMWU & Others.
10
Davis JA confirmed that:
“
The
commissioner is required to come to an independent decision as to
whether the employer’s decision was fair in the circumstances,
these circumstances being established by the factual matrix
confronting the commissioner.”
In my view, the commissioner’s view can best be summarised
thus: The employer decides to dismiss. The commissioner conducts
an
arbitration
de novo.
In the light of the totality of
circumstances, established by the evidence at arbitration, the
commissioner must then decide
whether the decision to dismiss was
fair. In doing so, it is the commissioner’s own sense of
fairness that must prevail.
There can be no deference to the
employer.
It should be clear from my understanding of the commissioner’s
role that I do not agree that the commissioner’s role
with
regard to the employer’s decision to dismiss is akin to the
role of this court sitting in review of the arbitrator’s
decision. The commissioner must decide whether the decision to
dismiss was fair; this court may only decide whether the
arbitrator’s
decision was so unreasonable that no other
arbitrator could have reached the same decision. Even if the court’s
own sense
of fairness may dictate a different outcome, it cannot
interfere with the decision of the arbitrator. The converse applies
to
the arbitrator when deciding whether the employer’s
decision to dismiss was fair.
In the present case, the arbitrator carefully considered all the
evidence before him. Despite the seriousness of the misconduct,
he
came to the conclusion that the sanction of dismissal was not fair,
especially given the applicant’s unblemished record
of 22
years and the inference that he caused no operational risk. Even if
this court may have reached a different conclusion,
it is not so
unreasonable that no other arbitrator may have reached the same
conclusion. The award is not reviewable on this
ground.
Second ground of review: documentary evidence
The applicant complains that the arbitrator did not sufficiently
consider its disciplinary code. It submits that dismissal is
the
appropriate sanction for the type of misconduct perpetrated by the
employee.
What is immediately apparent from the disciplinary code, though, is
that it states in terms:
“
These
are merely guidelines and each case must be treated on its own
merits.”
The arbitrator did accept that SAB takes a tough stance on
alcohol-related misconduct. However, taking into account the
totality
of circumstances, he came to the conclusion that dismissal
was not a fair sanction in this specific case. That conclusion was
not so unreasonable that no other arbitrator could have reached it.
Third ground of review: breathalyser test
The applicant criticises the arbitrator’s finding that its
business was not at risk, based on the breathalyser test showing
no
alcohol, because that test was administered some seven hours after
the employee had drunk from the bottle of beer.
The arbitrator still found, quite properly, that the employee had
operated machinery after having consumed alcohol; but he context
was
that the evidence had only shown him taking “a few sips of
beer”, and the breathalyser test showed that he had
no
discernable alcohol on his breath, albeit seven hours later. The
conclusion that the employee had not placed the business
at risk
must also be seen in the light of the applicant’s own
disciplinary guidelines (on which it relied under the second
review
ground). Those guidelines specify that it is an offence to work on a
SAB production site while “being intoxicated
and/or under the
influence of alcohol.” That, in turn, is defined as having a
breath alcohol content of more than 0,24
mg/1000ml. In this case,
there was no such evidence; in fact, the employee’s breath
alcohol level was 0. There was no evidence
to show that he was
intoxicated or under the influence of alcohol; at most he had drunk
some (“a few sips of”) beer.
Given this context, the conclusion that dismissal was not a fair
sanction was a reasonable one.
Fourth ground of review: dismissal unfair
This “catch-all” ground of review is based on the
argument that, having found the employee “guilty”
11
– i.e. that he had committed the misconduct – the
arbitrator should have found that dismissal was a fair sanction.
However, it should be clear from an analysis of the award that the
arbitrator properly weighed up all of the evidence before
him –
the totality of the circumstances, in the parlance of
Sidumo
– and it is in the light of all those circumstances that he
found that dismissal was not a fair sanction, despite the fact
that
the employee had committed misconduct. In doing so, he acted
reasonably; the fact that the employer, the applicant’s
counsel or even this court may have formed a different view, is not
the test on review.
Conclusion
The conclusion that the arbitrator reached is one that a reasonable
decision-maker could have come to. It is not open to review,
as
opposed to appeal.
Both parties have asked for costs to follow the result. There is no
apparent reason to differ.
Order
The application for review is dismissed with costs.
_______________________
Anton Steenkamp
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT:
G Leslie
Instructed by Bowman
Gilfillan.
THIRD RESPONDENT:
J Whyte of Cheadle
Thompson & Haysom.
1
(2007)
28
ILJ
2405 (CC); [200]
12 BLLR 1097
(CC);
2008 (2) SA 24
(CC).
2
(2008)
29
ILJ
964 (LAC).
3
See
National Union of Mineworkers & another v Samancor Ltd
(Tubatse Ferrochrome) & Others
[2011] ZASCA 74
(25 May
2011).
4
Supra
paras 118-119.
5
(1999)
20
ILJ
343 (LC) 346.
6
CA
4/09 (unreported), Labour Appeal Court, Cape Town (2 March 2012)
paras [103] – [104].
7
[2008]
3 BLLR 197
(LAC) paras [98] and [100].
8
Supra
para [79].
9
Ibid
para [75].
10
Unreported,
CA 6/2011 (8 March 2011).
11
I
am repeating the shorthand phrase used by the arbitrator without in
any way propagating a criminal procedure model of discipline
in the
workplace.