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[2012] ZALCPE 5
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SA Breweries Limited v Commission for Conciliation, Mediation and Arbitration and Others (P703/10) [2012] ZALCPE 5 (10 May 2012)
REPUBLIC OF SOUTH AFRICA
Reportable
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
case
no: P 703/10
In the matter between:
SA BREWERIES LIMITED
Applicant
And
THE COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION
First Respondent
COMMISSIONER THEODORUS POTGIETER
Second Respondent
JARROD VAUGHAN CLARK
Third Respondent
Heard
:
22 February 2012
Delivered
:
10 May 2012
JUDGMENT
BHOOLA J
Introduction
This is an application to review the second respondent’s
arbitration award under case number ECPE 3146/10 dated 7 November
2010, in which he concluded that the dismissal of the third
respondent (“the employee”) was procedurally and
substantively
unfair and reinstated him retrospectively with an
order of four months’ compensation.
Background facts
The facts are largely common cause. The employee was a sales manager
at the applicant and was dismissed on 28 June 2010 following
charges
of dishonesty, gross misconduct and bringing the applicant into
disrepute.
The first and second charges, which are the most relevant to this
review, were formulated as follows :
Charge 1: Dishonesty in that you
instructed the credit department on the 20
th
of May to
transfer the outstanding balance of Tapa’s debt to your cost
centre in order to clear his balance with SAB. It
is further alleged
that this was done in order to influence the outcome of a recruitment
decision that had been vetoed as the incumbent
owed us money.
Charge 2 : Gross misconduct in
that you wilfully transgressed the recruitment policy and procedure
by attempting to send Donovan
Doyle, the previous owner of Tapas, a
former customer of ours, for psychometrics after being informed by
the HRS that:
a) we had not yet advertised the
position;
b) the candidate was not
suitable for employment with SAB as he owed us and various customers
in the trade money;
c) we could not send him for
assessment as he had not yet completed the interview process.
Charges three and four related to the employee’s conduct in
bringing the applicant’s name into disrepute by (a) placing
orders with a supplier without making arrangements to settle the
outstanding amount and (b) by promising marketing funds and
support
to SAMDB without attending meetings, answering correspondence, and
other conduct.
The employee was found guilty of these charges following a
disciplinary enquiry and an internal appeal. He was dismissed on 28
June 2010 and referred a dispute to the first respondent which was
arbitrated by the second respondent (“the arbitrator”).
The arbitrator found that his dismissal was procedurally and
substantively unfair.
Grounds of review
The applicant relies in its heads of argument on the ground of
review that the arbitrator unreasonably and unjustifiably failed
to
consider the evidence before him. In amplification of this ground
the applicant alleges that the arbitrator failed to have
proper
regard to the evidence pertaining to the following :
Heather Muniz (one of the applicant’s witnesses) initially
testified during cross examination that everybody knew about
the
outstanding Tapa’s debt that was transferred to the
employee’s cost centre. However in cross examination she
clarified this by testifying that only the Finance Department knew
about this.
The email in which the employee gave instructions to transfer the
outstanding Tapa’s debt to his cost centre (dated 20
May
2010) was only forwarded to the credit clerk and not to other
employees.
Muniz testified that the amount transferred to the employee’s
cost centre was slightly less than R10 000.00 and
the employee
only had authority to request debts of less than R10 000.00 to
be transferred to his cost centre.
Muniz did not concede that nothing was done deceitfully because
“everybody knew” about the transfer. She initially
testified that everyone was aware and then conceded that this was
not the case.
Theresa Davidson testified that she was not informed about the
transfer, that the employee attempted to circumvent her and
that he
could accordingly not be trusted.
The employee instructed the credit department to transfer only
R9800.00 of the debt to his cost centre. All transactions of
over
R10 000.00 had to be authorised by his supervisor.
The employee did not follow the correct procedure when he attempted
to recruit Doyle.
The applicant did not have a “fail forward policy” that
applied to recruiting employees.
The steps in the recruitment policy were not always strictly
adhered to, as admitted by Virginia Solomons, although at the
end
of the day all the steps were all generally followed as required by
the recruitment policy.
There was no available position for Doyle at the applicant. The
employee had been informed that Doyle could not be appointed
into a
training position as it was a dedicated affirmative action
position.
Psychometric tests were always arranged by the applicant’s
human resources department and not by the employee.
Davidson testified that the employee did not act in good faith
towards the applicant in relation to all the charges.
The applicant supplemented the above averments in its supplementary
affidavit in terms of Rule 7A(8) by including the following
evidence
that the arbitrator did not have regard to:
Solomons testified that it was company procedure to follow the
applicant’s recruitment policy when an employee is recruited.
The employee always intended to avoid the procedure by having
arranged for Doyle to go for psychometric testing before he was
even interviewed through the correct procedure. The employee was
persistent in sending Doyle for testing despite her informing
him
that the applicant could not recruit him.
Muniz testified that it was rather strange that the employee copied
Solomons on his email informing her of the writing off.
This
reflected his intention to get Doyle recruited. She said there was
no reason for employee to have the debt transferred
to his cost
centre as it was not a case where the applicant owed him money. The
applicant’s witnesses testified that
bad debts were normally
only written off after a customer who did not want to pay was
handed over to the attorney for recovery.
Davidson confirmed that it was not common practice to settle the
accounts of customers. Her uncontested evidence was that the
employee never informed her of the transfer of the debt to his cost
centre. She would have taken issue with the arrangement
had she
been copied on the emails. Since the amount was less than R10
000.00 she would not have known about the arrangement
as she only
got involved in amounts in excess of this. The employee, despite
having had an opportunity to do so when she told
him to cancel the
psychometric test, failed to inform her about the transfer and was
not transparent in what he was doing.
He did not want to follow the
instruction issued by Solomons to cancel the test and only did so
when she instructed him. The
employee always attempted to
circumvent her. As District Manager of the employee she was
deceived by his actions to transfer
the debt. She was not aware of
a “fail forward policy” that the employee was relying
on.
In relation to the third and fourth charges Davidson testified that
there were steps the employee could have taken to avoid
them but he
failed to do so. If he had run the events professionally there
would have been no complaints.
The applicant submits, in its written heads of argument, that the
clear import of the allegation of dishonesty was that the employee
had acted less than transparently and in circumstances where he had
placed the interests of the customer above that of the applicant.
The record of the proceedings makes it clear that he has to date not
put up a credible explanation for releasing Doyle from the
debt,
which in essence constituted a gift to him of just under R10,
000.00. In these circumstances not only did the commissioner
fundamentally misconstrue the substance of the allegations preferred
against him, he also made no endeavour to analyse the facts
with a
view to determining the probabilities, and more importantly, whether
or not the employee was motivated by ulterior purpose.
He failed
moreover to consider the important credibility issues that arose.
Submissions made by the parties
Mr Grogan submitted that the applicant had relied in its original
heads of argument on an erroneous statement made in an unsigned
pre-trial minute that the employee and Doyle were “house
friends”. In the supplementary heads it was conceded that
the
reliance on this fact was misplaced. The main ground of review, he
submitted, is whether the arbitrator had regard to the
material
facts. This is a process-based review which he submitted involves
considering, on the authority of
Gaga v Anglo Platinum
Ltd
& others
1
whether the commissioner applied too narrow a definition or
overlooked certain considerations and made a material error that
denied the applicant a full and fair determination of the issues,
thereby committing an irregularity or misconduct. Mr Grogan
submitted that if regard is had to the facts the first and notable
fact is that the third respondent was a senior manager. Doyle
operated a liquor outlet and for various reasons ran up a debt of
just under R10 000.00 with the applicant. In February
2010 he
was interviewed for a position as Events Representative with the
applicant and on 16 February 2010 was shortlisted with
one other
preferred candidate. This was not a job in the employee’s
department. He was scheduled for a psychometric test
but when it
came to the attention of the Human Resources department that he was
indebted to the applicant and to some customers,
it was considered
to be invidious that he should represent the applicant to persons to
whom he owed money, and the test was cancelled.
He was informed that
as long as he remained indebted to the applicant there was no
prospect of employment. In the meantime the
employee and Doyle had
been in contact with a view to employing Doyle in the employee’s
department, and in May 2010 the
employee approached Ms Solomons in
the Human Resources department and simply requested her to arrange a
psychometric test for
Doyle, despite the applicant’s
recruitment policy requiring a 24-stage recruitment and selection
procedure. Solomons refused
to schedule the test and informed him
that as long as Doyle owed the applicant money there was no prospect
of him being employed
by it and there was thus no purpose to holding
a psychometric test. The employee persisted and explored the
possibility of paying
for the test from his cost centre and booked
the test. Ultimately Solomons informed Davidson (who is the
employee’s immediate
superior and also Divisional Manager) who
instructed him not to proceed with the psychometric test. He then
cancelled the test.
A day or two later the debt owed by Doyle was
paid off by crediting it to the employee’s cost centre. The
employee informed
Solomons on 17 May 2010 that Doyle had in fact
paid off his outstanding debts to the applicant. Davidson’s
evidence was
that she telephoned the employee on 18 May 2010 and
informed him that at no stage would Doyle pass the credit checks
required
in the recruitment process because of the debt he owed to
the applicant. At no stage did he inform her that he intended
sorting
out the debt. She subsequently found out that the debt had
been written off and that Doyle had ceased trading. There was no
explanation
as to why the employee went to the lengths he did to
write off the debt.
This is where the patently dishonest conduct becomes apparent, Mr
Grogan, submitted. What the arbitrator is required to do is
to
examine the facts in light of the charges and determine whether the
employee is guilty of the charges. What he did instead
was to set
out all the evidence in his award and then address the issue of
whether the applicant had led sufficient evidence
on the charges. On
this approach he found that none of the facts proved any dishonesty
on the part of the employee. Mr Grogan
submitted accordingly that
this reflects a failure of his duty to subject the charges to proper
analysis.
Mr Grogan submitted that in this context it was common cause that
the employee cleared the debt and that this was done two days
after
the cancelled psychometric test. This creates a
prima facie
assumption of dishonesty i.e. that the writing off of the debt was
done to influence the outcome of the recruitment decision,
and
obliged him to provide a credible explanation. His motive becomes
critical and this is the fundamental issue the arbitrator
failed to
apply his mind to. Instead what he did was to simply focus on the
literal meaning of the word dishonesty and this led
to the finding
that since the writing off was done openly there was no proof of
dishonesty. This is the first basis for the finding
that he did not
act dishonestly. The arbitrator’s second reason is that since
the writing off was done in accordance with
the credit controller’s
instructions, it was not dishonest. Mr Grogan submitted that if the
arbitrator had actually considered
the two points instead of simply
stating them, he would have had to rule that the communication
between the parties, which he
found indicated openness, all occurred
around February to March 2010 – and all related to an attempt
by the credit control
department to get someone to take
responsibility for Doyle’s debt. This was in fact two months
before the final date on
which the employee decided to subsume the
debt (May 2010), which coincided with the date on which he was
making arrangements
to recruit Doyle. His conduct had nothing to do
with Muniz’s request that someone should offer to assist
Doyle. He was
therefore the initiator of the scheme to write off the
debt and the person who should have informed Davidson of his
intention
to do so. As sales and marketing manager he had a
discretion to incur debts of up to R10 000.00 and to charge
them to his
cost centre, and he knew that anything over and above
that amount would require approval from Davidson. Doyle’s debt
was
more than R10 000.00 because it had been handed over to the
applicant’s attorneys for collection and therefore included
legal and collection fees. The employee had conveniently arranged
with Doyle for his cost centre to pay R9800.00 and for Doyle
to pay
the legal fees and costs himself. This quite adroitly brought the
debt within his level of authority. Davidson’s
evidence was
that writing off of debts ordinarily fell within the made of the
applicant’s board of directors. She only
became aware of the
arrangement at a later stage, testified that it was highly irregular
and she was not kept abreast of developments.
Her evidence was that
she would most certainly have taken steps to address the issue had
she been made aware of it.
Mr Grogan submitted that the arbitrator made much of the concession
by Muniz that the employee was not deceitful. However, this
ignored
the fact that Muniz also said it was dishonest to use the
applicant’s money to pay a debt the customer should have
paid.
It was not for Muniz to determine the employee’s state of mind
but for the arbitrator to make this determination
based on the facts
but his level of analysis is a mere acceptance of the employee’s
ipse dixit
to the effect that if he intended to deceive he
would not have sent the email to the finance department disclosing
the writing
off.
For these reasons, Mr Grogan submitted that the arbitrator adopted a
piecemeal approach in that he failed to see the link between
the
first and second charge. He therefore failed to draw the necessary
conclusions from the conduct of writing off the debt and
the
strenuous attempts to expedite the appointment of Doyle. If he had
taken account of the totality of the circumstances and
facts he
would have examined the notion of deceit in this context and would
have concluded differently.
Furthermore, in evaluating the arbitrator’s approach to the
employee’s conduct Mr Grogan urged this Court to have
regard
to his discussion on the meaning of dishonesty that precedes his
analysis of the evidence and argument. Despite discussing
the
meaning of the term he fails to appreciate that the employee was
charged with being less than straightforward with Davidson
and
Solomons. The effect of all of this on the employment relationship
is critical. In this regard Mr Grogan cited as authority
Carter v
Value Truck Rental (Pty) Ltd
2
which held that dishonesty in the employment context involves deceit
which occurs by omission or commission. It is the conduct
by
omission that is relevant in
casu.
Mr Grogan submitted that in relation to charge two the arbitrator
relies simply on the fact that the psychometric test was cancelled
by the employee when he was instructed by Davidson to do so, and
that prior thereto he had informed Solomons that he had arranged
for
the test. The arbitrator found that such conduct in itself did not
constitute “gross misconduct” and that he
had no
malicious intent (which presumably meant that he did not intend to
harm his employer).
Insofar as the arbitrator relied on the erroneous fact that the
motive for his conduct was that he and Doyle were “house
friends”, Doyle had in fact confirmed in the disciplinary
enquiry that they had been close friends for many years. However,
Mr
Grogan submitted that even if the employee genuinely believed (as he
testified) that employing Doyle would have benefited
the applicant,
this would in any event have been insufficient to justify his
conduct at all.
The other notable omission alluded to by Mr Grogan is the
arbitrator’s manifest failure to consider the effects of the
employee’s conduct on the employment relationship. He simply
found that Davidson’s views were based on her perception
of
dishonesty and that she did not say she had been deceived. The
employee then resorted to the standard conspiracy theory and
accuses
her of being part of a clique, but the arbitrator fails to note that
this was not put to her at all.
Mr Le Roux, representing the employee, submitted that the applicant
had not remotely met the stringent test set out in
Fidelity Cash
Management Service v CCMA and Others.
3
In fact, he submitted, the evidence of dishonesty is so remote that
it requires stringent forensic analysis of the award. The
starting
point as established in
Fidelity Cash
(
supra
at page
479) is to look at what the employee was charged with. What is
significant in regard to charge one is that
at the time the debt
was cancelled
the employee’s decision to recruit Doyle had
been vetoed. Muniz had said - without any qualifiers – that
there was
nothing inherently wrong with the writing off of the debt.
She saw it as a moral and budgetary issue. The mere act of writing
off the debt could not in itself be an act of misconduct although it
may for associated reasons become misconduct. But then however,
there would have to be a demonstrated factual matrix which would
support impugning an otherwise innocent act. The arbitrator
therefore cannot be faulted for asking the question (about the
transfer of the debt to his division), “but did he do it
under
cover of darkness” and finding otherwise since he had
communicated quite openly to Rian Killian, Solomons and Muniz.
It is
also accepted in the applicant’s supplementary heads that
there was no hope of concealment and the transaction would
eventually have come to Davidson’s attention in due course.
This dispenses with the notion that there was any dishonesty
involved on the part of the employee. His evidence was that he did
not see the need to be a “
snot neus”
manager who
runs to his superior for every little decision, and in fact the
“fail forward policy” encouraged managers
to be robust
in making decisions. Therefore, Mr le Roux submitted, the applicant
failed to prove that dishonesty had been established
and the
arbitrator had not had regard to this. It now seeks to rely on the
fact that he failed to inform Davidson that he was
sorting out
Doyle’s indebtedness. Davidson’s complaint is that when
she instructed him on 18 May 2010 to cancel the
psychometric test
and said that one of the reasons Doyle could not be employed was
that he was indebted to the applicant, he
should have said he was in
the process of sorting this out. His evidence was however that he
had been communicating with Killian
about who would subsume the
legal costs and only decided to cover part of the debt a
fter
his
discussion with Davidson (on 20 May 2010). Secondly, there was no
reason for him to inform Davidson that he was intending
to write off
the debt in order to make Doyle recruitable, because at the time he
wrote off the debt he could not have had this
purpose in mind. The
writing off could clearly on the evidence not have been for that
purpose. His evidence was furthermore that
had he intended to
deceive Davidson he would have split the debt up into two amounts in
order to disguise it. Davidson was in
essence saying that he should
have informed her that he intended to execute an act that fell
within his authority. His evidence
was that he was not required to
inform her of each and every act he performs that is within his
authority. Muniz has a different
impression of where the dishonesty
came in as her evidence was that her concern was that there was no
budget to write off debts.
She had in fact sought assistance for
Doyle in mid- March when she communicated that the applicant was
about to litigate against
him for the outstanding sums and she asked
if someone is “going to bail him out because we have no hope
of recovering this
debt”. In fact her evidence was that when
the debt was incurred there was an understanding that the employee
would stand
for it. The employee also testified that Muniz had
informed him the debt would revert to his cost centre as he had
provided the
stock to Doyle and would be liable in any event to make
good on it.
The employee in any event provided a reasonable explanation, Mr Le
Roux submitted, for the time lapse between the email from
Muniz in
March 2010 and the decision in May to write off the debt. This
related to the applicant’s suggestion that there
was nothing
on the evidence that suggested that the debt was more recoverable in
May and the employee should have refrained from
taking the steps he
did. When it was put to him that there was a gap he explained that
it was financial year end and he was very
busy and only on 17 March
it was brought to his attention that the debt would be put to his
cost centre if it was not paid. There
can therefore be no suggestion
that it was linked to a recruitment decision or that he was
otherwise dishonest.
Mr Le Roux submitted that another attempt made by the applicant to
try to identify the dishonesty, and which was simply a red
herring
and which it now accepts was a
bona fide
error, was the
suggestion that his conduct was motivated by them being “house
friends”. This is the only motive at
the applicant’s
disposal to prove the charge. In the absence of this fact it is now
suggested in the applicant’s
supplementary heads that his
motive remains a mystery. However, if his motive is unknown it could
hardly be argued to have been
established that his motive was
improper, let alone that it was one involving an attempt to
influence a recruitment decision.
The latter is utterly
insupportable on the evidence. The evidence clearly establishes that
as per the email from Solomons by
18 May 2010, two days prior to the
transaction, the decision to recruit him had already been vetoed.
Solomons in fact suggested
4
that there was another position for which Doyle could be considered
when the debt issue was sorted out. She also pointed out
that there
was no doubt in her mind he could be an asset to the applicant. This
rebuts the submission by the applicant that the
employee was the
only one who considered there to be some merit in recruiting him.
It was clear that the debt owed by Doyle to the applicant was just
one of the impediments to his recruitment, and that the payment
of
his debt to the applicant would still not have resolved the problem.
The email from the Events Manager, Russell Hunt of 19
February 2010
makes this clear.
5
Mr Le Roux submitted it is clear from the context of the discussion
that the employee could not have rendered him eligible for
recruitment by the applicant by settling that debt on its own.
Thirdly, the evidence indicates that the employee had given up on
having Doyle recruited. This supposed scheme, that he would
later
resuscitate his efforts to recruit Doyle, was never put to him and
it was clear on the evidence that he never made such
further
efforts.
Mr le Roux accepted that perceptions of relationships could arise
but none of it is material to the decision. Moreover, it was
never
even suggested to the employee that he and Doyle were friends and
the disciplinary enquiry evidence on this issue does
not assist the
applicant.
Furthermore, Mr le Roux submitted, the applicant’s “fail
forward policy” implies that there is a level of robustness
about the applicant’s operations and about recruitment
decisions. It was not in dispute that this was the case and the
arbitrator therefore placed some reliance on it. The worst for the
employee was therefore that he could have been accused of
taking the
steps advocated in the recruitment policy out of sequence. Even
Solomons conceded that she sometimes combined some
of the steps in
the policy and this cannot come close to being a dismissible
offence. It was not the evidence that employer’s
culture was
that compliance with policy was cast in stone and that it was an
offence to do anything out of sequence.
Mr Le Roux submitted therefore that the review constitutes a valiant
attempt to create an elephant in the room and say that the
arbitrator failed to notice it. The applicant had initially relied
on unreasonableness but is now trying to repackage the review
as a
process related irregularity. Mr Le Roux submitted therefore that in
the circumstances it is clear the arbitrator asked
the correct
question, i.e. what are the hallmarks of dishonesty? He correctly
pointed out that it requires active deviance and
a failure to
communicate. It cannot be said that no reasonable arbitrator could
have concluded that there is no clear evidence
of the dishonesty.
The applicant now seeks to argue a process-related review and seeks
remittal to the first respondent instead
of substitution. However,
he submitted, on either a reasonableness based on outcome or
unreasonableness resulting from gross
procedural irregularity there
are no prospects of success. The evidentiary material is completely
consistent with the outcome
but the applicant is now trying to
persuade this court that there are a multitude of other options that
the arbitrator should
have been alert to and which could have
changed the outcome of the arbitration. He submitted that in
circumstances where there
was disclosure to the finance department
(i.e. open communication about an act that it is common cause is
within his level of
authority) it was unlikely that the employee was
trying to hide something and was dishonest. The inference cannot
even be drawn
on the evidentiary material. The essence of the
dispute is that the employee stepped out of line in scheduling the
psychometric
test and his superior told him to step back and he did.
The award is therefore unassailable on any of the grounds of review
relied
upon.
In reply Mr Grogan submitted that it is apparent that the employee
“did something wrong and got caught out”. The
arbitrator
failed to consider connection between the two incidents (i.e. the
psychometric test and the write off), treated them
as separate
events and this results in a fundamental omission as was delineated
in
Maepe v CCMA & Others.
6
The
applicant is therefore justified in seeking review and
remittal for a hearing
de novo
.
Analysis of the award and submissions
The arbitrator commenced his award by defining dishonesty with
reference to the authorities. In his analysis of evidence he records
the evidence of the employee, which was supported by the concessions
made by Muniz, that the transfer to his cost centre was
done openly
and that Solomons was copied with the relevant correspondence.
Furthermore, the employee also testified that he gave
instructions
for the transfer of the amount on Muniz’s instructions as she
said that allocating money initially was not
a good decision as
Tapa’s was a risk due to previous payment history and that the
employee would have to take responsibility
if they defaulted. The
arbitrator concluded on this evidence that:
“
Muniz
said that what the applicant did was not right morally. She conceded
that the applicant did not act dishonestly as everyone
was informed
by email. She then conceded further that nothing was done deceitfully
as everybody knew. She also testified that she
could not comment on
the recruitment decision part of the dishonesty charge.”
In dealing with Davidson’s evidence the arbitrator concluded
as follows :
“
Davidson
testified regarding this charge that she was not informed regarding
the correspondence with credit control and stated that
the
applicant’s failure to inform meant that the applicant was
dishonest and could not be trusted because the applicant circumvented
her. She testified that all transactions over R10 000.00 had to
go past her desk. The applicant instructed the credit department
to
allocate R9800-00 of the Tapa’s account to his cost centre and
Tapa’s would pay the legal fees as is clear from
the
correspondence contained in the respondent’s bundle (bundle B
page 156 to 158). The applicant testified when cross examined
that he
did not have any intention to deceive – he would not have sent
the emails if he intended to deceive. It is clear
to my mind that
from all evidence tendered and the fact that Solomons was copied with
correspondence and the transfer done openly
that no lies were
involved and no deceit was shown. I find that the applicant did not
act dishonestly.”
Solomons conceded in relation to the charge of gross misconduct
involving transgression of the recruitment policy and procedure
that
the policy was not strictly adhered to step by step even by her. The
arbitrator found that the employee’s evidence
that he acted in
accordance with the “fail forward policy” went
uncontested. He concluded that there are two conflicting
policies in
place (recruitment and fail forward), and that the employee had no
malicious intent and did not make himself guilty
of gross
misconduct.
In determining the appropriate relief the arbitrator had regard to
the evidence of Ngwane to the effect that the employee could
not be
trusted and held, relying on
Kemp t/a Centralmed v M M Rawlins
7
that the mere
ipse dixit
of an employer to the effect that
the relationship has broken down is insufficient to avoid
reinstatement. Davidson’s view
was that the employee could not
be trusted because of her perception that he acted dishonestly. The
evidence in fact, the arbitrator
found, pointed the other way. He
explained his reason as follows :
“
I say
this because the applicant heeded a direct instruction from Davidson
to cancel psychometric testing with Doyle, thus showing
that he can
be trusted to execute Davidson, his superior’s instructions. I
find that the respondent did not show that the
circumstances
surrounding the applicant’s dismissal was such that a continued
employment relationship would be intolerable.
No evidence was
tendered that it would not be reasonably practicable for the
applicant to be reinstated.”
Although the pleadings cited a number of grounds of review relating
to the failure of the arbitrator to apply his mind to the
evidence
and make appropriate rulings on the probabilities, many of these
were proven to be without substance when regard was
had to the
evidence. The applicant correctly persisted only with the submission
that the arbitrator’s piecemeal approach
to the main charges
led to his failure to take account of the totality of the
circumstances and therefore to determine that there
had been
dishonesty. Furthermore, although the review is pleaded as a review
based on an unreasonable outcome, the case as argued
by Mr Grogan
was based on a latent gross irregularity in the procedure. The
difference between the two approaches has been delineated
by Anton
Myburgh in his recent article
8
.
In my view however, neither an outcome or procedure based review can
be sustained on the evidence presented to the arbitration.
It is
clear from the arbitrator’s reasoning and conclusions on the
facts and circumstances, as well as his reasoning on
the
probabilities, that the charges were not proven. In this regard it
cannot be contended that he committed a gross irregularity
of such
magnitude that the applicant was denied a fair hearing, or indeed
that the award was unreasonable. Mr Le Roux submitted
that in
essence if the award and the process requires detailed forensic
scrutiny in an effort to find the flaws then the issue
is rather
self-evident. Mr Grogan was unfortunately constrained by being
brought into the matter at the eleventh hour and without
any prior
involvement in the drafting of the pleadings or the applicant’s
heads of argument. In my view it is clear that
on any construction
of the evidence the award or process cannot be assailed on the
Sidumo
test.
9
The review therefore falls to be dismissed. I have not been
addressed on any reasons why the ordinary rule that the costs follow
the result should not apply.
Order
Therefore, I make the following order :
The review application is dismissed with costs.
_______________________
Bhoola J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Dr J Grogan SC
Instructed by Joubert
Galpin Searle, Port Elizabeth
THIRD RESPONDENT:
Mr F Le Roux,
Francois Le Roux Attorneys, Port Elizabeth.
1
(2012)
33 ILJ 329 (LAC) at [41].
2
[2005]
1 BLLR 88
at para [44].
3
(2008)
29 ILJ 964 (LAC).
4
Bundle,
page 403.
5
Bundle,
page 400.
6
[2008] ZALAC 2
;
[2008]
8 BLLR 723
(LAC).
7
[2009]
30
ILJ
2677 (LAC).
8
Anton
Myburgh “Reviewing the Review Test: Recent judgments and
developments”, paper presented to SASLAW 21 June 2011.
9
Sidumo
and another v Rustenburg Platinum Mines Ltd and others
[2007] 12
BLLR 1097
at para [110].