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[2013] ZALCJHB 9
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Airport Company South Africa v Khumalo and Others (JR 1010/11) [2013] ZALCJHB 9 (25 January 2013)
Reportable
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
case
no: JR 1010/11
In the matter between:
AIRPORTS COMPANY SOUTH AFRICA
Applicant
and
KHUMALO, PATRICK
First Respondent
THE CCMA
Second Respondent
GUNGUBELE, REBECCA
Third Respondent
Heard
:
26 October and 10 December 2012
Delivered
:
25 January 2013
JUDGMENT
BHOOLA J:
Introduction
This is an application in terms of section 145 of the Labour
Relations Act 66 of 1995 (“the Act”), to review and
set
aside the arbitrationaward made by the third respondent (“the
commissioner”) dated 30 March 2011under case number
GAEKV724-10.
Background to the dispute
The applicant is a state owned entity and is responsible for
managing airports in South Africa including the Oliver Reginald
Tambo International Airport (“ORT”), which is a national
keypointwhere security is accordingly of paramount concern.
One of the security measures the applicant takes for international
flights is the disposal of liquids, aerosols and gas, referred
to as
“LAGS”. The applicant has a LAGS policy in place which
provides that its objective is to “prevent the
carriage of
liquid explosives and possibly offensive or harmful articles into
the restricted areas and on-board an aircraft.”
The policy
requires that LAGS found in a passenger’s possession must be
removed and disposed of by employees. This may
be done by handing
the item to a family member who is not travelling or discarding it
in a prescribed disposal container. The
policy makes it clear that
LAGS may not be consumed or appropriated by employees. The LAGS
policy has been communicated to all
employees.
The first respondent (“Khumalo”) was employed as a
security officer at the airport. On 18 August 2010 he was observed
by surveillance cameras breaching the LAGS policy and “facilitating”
a passenger. He was observed together with a
co-employee, Ben
Shilubane, assisting or “facilitating” a passenger in
contravention of policy stipulating that only
specific employees,
for instance those at information desks, may assist passengers. It
is common cause that Shilubane was working
at the baggage search
area and Khumalo was the security guard on duty.
On 8 November 2010 Khumalo was charged with the following
misconduct:“(1)facilitating a passenger at international
departures;
(2) breaching LAGS procedure by not following security
procedures and (3) colluding with Ben Shilubane to facilitate a
passenger”.
Following a disciplinary enquiry he was dismissed,
and Shilubane was similarly dismissed in separate
proceedings.Khumalo referred
an unfair dismissal dispute to the CCMA
which was arbitrated on 15 March 2011.
The evidence led at the arbitration
The applicant led one witness, Leon Jackson, Head of Department for
Security Operations. He testified that the video evidence
showed
that:
A passenger put his bag through the Automatic Metal Detector
(“AMD”) machine during baggage screening and it
beepedindicating that it contained a prohibited or suspicious item.
Shilubane opened the bag, looked inside but did not remove
anything. A conversation ensued between him and the passenger and
the passenger took some paper slips out of his pocket and handed it
to him. Khumalo can be seen on the camera footage observing
this
exchange.
A few minutes later Khumaloand Shilubane walk away together while
the passenger went through passport control. A little while
later
the passenger joins them and they walk towards a restaurant, the
News Café, and despite tables being available
they walk
behind the restaurant and out of sight of the surveillance cameras.
On the same day the cameras capture Khumalo confiscating a bottle
of water and juice from a passenger. He is shown drinking
the water
and keeping the juice instead of disposing of these items in the
bins in the baggage search area in terms of the
LAGS policy.
Jackson testified that the LAGS policy was introduced in 2007 and a
workshop was held with security staff to introduce it. The
search
procedure occurred at the search point where a security guard had to
advise a passenger to check an item in or to confiscate
and dispose
of it in the LAGS bins. He confirmed that three employees had been
dismissed for committing the same offence because
of the seriousness
thereof and the need to ensure consistency in discipline.
Khumalo was posted at the entrance search point and not at the
baggage handling point. When he asked him what he was doing with
a
passenger he explained that the passenger was lost and was looking
for gate 6. The video however shows him directing the passenger
away
from the gate (and towards the restaurant). Khumalowas seen on the
video moving away with the LAGS instead of putting it
into the bin.
Jackson testified that the applicant did not believe that the two
security officers were telling the truth and
he was convinced that
they were acting suspiciously especially when they moved outside the
restaurant to an area where the cameras
could not observe them.
The applicant applied its disciplinary procedure fairly and
consistently in dismissing Khumalo as well as everyone else involved
in breaching the security and LAGS procedures.
The arbitrator summarises Khumalo’s evidence as follows :
He went on a tea break at 11:00 and Shilubane asked him to
accompany him to show a passenger where gate 6 was. He told him
the
passenger was a Kaizer Chiefs football fan and they waited for the
passenger to go through the passport control and immigration
point.
They escorted the passenger. They did not know him and had never
seen him before. Khumalo showed him the gate and he
said he wanted
to get some food at News Café. They went inside but he
looked at the menu and decided he would return
later and they went
out. Khumalo denied that they took the passenger to a place behind
the restaurant where surveillance cameras
could not observe them.
He testified that as far as he knew there was no place in the
airport where there are no cameras except
the toilets. He denied
that they had facilitated a passenger. He confirmed that he
consumed the LAGS and said that the staff
normally accepted LAGS
from passengers. He explained that LAGS confiscated from passengers
are put into bins, which are then
periodically taken away to be
emptied.However at times passengers would request them not to
destroy their confiscated items
but to rather use them, which they
then did. Managers were aware of the practice but never reprimanded
them for consuming LAGS.
He said that sometimes they took LAGS like
juice to their rest area where they consumed them.
Shilubane’s evidence, as recorded in the award, was that he
searched the passenger’s bag and during the search they
were
chatting and the passenger showed him a used Kaizer Chiefs match
tickets and some paper slips, which he took from him. The
passenger
asked him where gate 6 was and he offered to escort him there when
he took his tea break at 11:00. He denied that he
was facilitating a
passenger as he believed he was just “doing something good”
for a customer. He said he was only
making a passenger’s life
easy during his lunch break and he was not aware of any policy
regulating how employees spend
their free time. They were not
prohibited from showing customers directions to the shop, banks or
gate as long as they did not
leave their posts unattended. He was
aware of the policy prohibiting facilitation of passengers. His role
was to search the baggage
but they also assisted passengers who
needed directions. He argued that although there was a customer care
service at the information
department, it was not always visible and
some customers could not read English on the information boards and
could benefit from
being assisted by someone like him who cared for
them. The passenger in this case happened to be friendly and they
engaged in
small talk about football and he gave him “a lot of
used papers including an airtime slip”. That was when he asked
him where gate 6 was and Shilubanethen told Khumalo they would
assist him. He denied that he had exchanged documents with the
passenger and said that he could not throw them away immediately
because the only bin available was for LAGS. He confirmed that
they
spent a very short time in the restaurant because the passenger
changed his mind after viewing the menu and decided he would
return
later. He confirmed that a breach of the LAGS policy only occurred
when a passenger was allowed to pass through the security
gate
without removing the LAGS from him or her, and that the consumption
ofLAGS was not a disciplinary offence.
The award
The commissioner found the following to be common cause :
(a) That Khumalo and Shilubane
interacted with a passenger and were also seen consuming LAGS;
(b) That the applicant had
security rules and procedures in place and had introduced LAGS
procedures which were known by the employees;
and
(c) That the applicant had
dismissed the employees who breached these rules and procedures.
The commissioner proceeded to make the following finding :
“
[18] I
am however, not convinced by the Respondent’s version that they
have proven that the Applicant committed the offences
as indicated in
the charges against them. I am also not convinced that the Applicant
party lied when they testified that it was
common knowledge that they
made use of the LAGS and that they sometimes took them home as they
wished. I am not suggesting that
they were not breaching the rules by
doing so but I am certain that their behaviour was occasioned by
their realization that the
Respondent was not firm and consistent in
meting out discipline at all times. It only happened that on that day
in question the
X ray operator saw something untoward in the
passenger’s bag and prompted the security guards to check the
bag.
[19] The security guard found
used papers which were taken away by the guard as shown in the video
and the Applicant and his colleague
could have acted suspiciously by
what I would call fraternizing with the passenger. I do not believe
that if someone acted suspiciously
that person could be found guilty
based only on that suspicion”.
The commissioner further, after noting that the Code of Good
Practice enjoins the employer to at least practice the graduated
system of issuing discipline to employees, acceptedKhumalo’s
testimony that it was normal to use LAGS and that “this
should
be seen as an indictment on the part of the Respondent for having an
ambiguous stance towards maintaining discipline”.
In this
regard she found that “the respondent did not show me any
evidence of prior disciplinary records against the applicant
for
breaching the rules. Surely, I cannot condone their coming on the
applicant like a ton of bricks the minute they woke up
to the
misdemeanour. The respondent had a clumsy way of maintaining
discipline especially in an industry like theirs where they
are
exposed to possibilities of grave atrocities. They did not discharge
the onus of proving guilt against the applicant. The
dismissal was
substantively unfair”.
Lastly, although procedural fairness was not in issue, the
commissioner found that the dismissal was procedurally unfair as the
chairman “had a fixed mind” of dismissing the applicant
without taking cognisance of the provisions of the
Labour Relations
Act. On
this basis she ordered the applicant to reinstate Khumalo
and pay him four months’ salary in the sum of R29 600.00.
Analysis
Mr Orr submitted on behalf of the applicant that the commissioner
failed to consider virtually every single issue before her,
thus
denying the applicant a fair trial. This is a higher threshold than
that accepted by the Labour Appeal Court in
Herholdt v Nedbank
Ltd
1
to
the effect that “ [t]here is no requirement that the
commissioner must have deprived the aggrieved party of a fair trial
by misconceiving the whole nature of the enquiry. The threshold for
interference is lower than that; it being sufficient that
the
commissioner has failed to apply his mind to certain of the material
facts and issues before him, with such having potential
for
prejudice and the possibility that the result may have been
different.” In this regard Mr Orr submitted that despite
finding the existence of common cause facts i.e. that there were
security and LAGS rules and procedures in place of which Khumalo
and
Shilubane were aware and that the applicant had dismissed other
employees in similar circumstances, the commissioner failed
to apply
her mind to the material issue of whether the conduct was in breach
of the rules and procedures, but proceeded instead
to deal with
credibility and found that Khumalo did not lie about the common
conduct in using LAGS. However, in the next breath
she appeared to
accept the breach by stating that “I am not suggesting that
they were not breaching the rules…”.
She then
contradicted this finding by concluding that she is “certain”
that their behaviour was occasioned by the
realisation that the
applicant was not “firm and consistent in meting out
discipline at all times”. In regard to
the conduct involving
the passenger she found that “the Applicant and his colleague
could have acted suspiciously by what
I would call fraternizing with
the passenger” but failed to consider the explanation advanced
by Khumalo for the suspicious
conduct. Instead she jumped to the
conclusion that she did not believe “that if someone acted
suspiciously that person
could be found guilty based only on that
suspicion”. The commissioner correctly concluded that the
conduct appearing on
the video was suspicious, but failed to enquire
into whether the conduct was in fact suspicious and therefore a
breach of the
security rules. This reflects, as Mr Orr submitted, a
manifest failure to apply her mind to the issue which constitutes a
gross
irregularityand results in an unreasonable award.
Ms Basson submitted that if the award and video evidence were
construed as whole it was apparent that the commissioner did apply
her mind to the evidence and issues before her. Her conclusions are
eminently justifiable in relation to the evidence before
her in
relation to the two charges i.e. colluding with Shilubane and
facilitation of passenger and secondly LAGS consumption.
In relation
to the facilitation charge there was no evidence of collusion and at
the baggage check Khumalo did not interact with
the passenger,
althoughShilubane did and it wasShilubane who exchanged documents
with the passenger. Khumalocan be seen on the
video pointing the
passenger towards the gate and they then go outside the surveillance
area for approximately 2 minutes and
then return. Any inference from
the video as to what transpired in the area outside the surveillance
area is pure speculation
and insofar as the applicant submits that
an inference should have been drawn that there was suspicious
conduct this is purely
speculative and the commissioner approached
the issue in the way a reasonable commissioner would have done in
rejecting this
evidence. The commissioner correctly accepted that
the employees took the passenger towards gate 6 and no other
reasonable inference
could have been drawn in the circumstances. The
commissioner was in any event not satisfied that a rule prohibiting
facilitation
had been proven, and reasonably and justifiably
concluded that in any event it would not have applied during their
lunch break.
There was therefore no evidence before her to justify
the conclusion that Khumalo facilitated a passenger or colluded with
Shilubane
to do so. The commissioner found that Shilubane found
“used papers” and that he and Khumalo had interacted
with a
passenger. However there was no causal nexus between the
conduct of Shilubane in accepting the “used papers” and
the conduct of Khumalo. The commissioner correctly rejected the
evidence of the applicant as unreliable and accepted the evidence
of
Khumalo as being more credible. On the video Khumalo is depicted
performing his duties, walking away with a colleague during
their
lunch break and then returning to his post – the commissioner
correctly concludes that there is insufficient evidence
to prove any
guilt and that his version is more credible. In regard to the LAGS
charge the commissioner accepted Khumalo’s
version that there
was no breach of the policy. The commissioner is required to
determine whether there is a rule prohibiting
the conduct and the
video depicts Khumalo picking up a bottle and drinking from it and
then walking off with it. He does so in
full view of the camera and
it is apparent that he could not have thought his conduct was
prohibited. In any event his evidence
was that the policy was never
applied by the applicant. Even if the policy was applicable, his
evidence was that it did not prohibit
consuming confiscated LAGS as
the main intent of the policy was to ensure that a passenger did not
take LAGS onto the plane.
In his evidence he said that “[i]f
you stopped and searched a passenger you have done your job”,
and he denied that
there was a policy prohibiting them from drinking
water from the LAGS. Ms Basson concluded that the commissioner
therefore drew
a conclusion based on her summary of the evidence to
the effect that the applicant failed to prove this charge and that
dismissal
for consuming LAGS was not justified as there was no
consistent application of the LAGS policy. Ms Basson conceded that
the finding
in respect of procedural unfairness was unreasonable but
submitted that the relief awarded was consistent with a
determination
based only on substantive unfairness. She submitted
that case law was clear that any inference from video evidence had
to be
based on established facts, which was not the case in this
instance. In conclusion she submitted that nothing in the award
indicates a failure by the commissioner to
apply her mind and the
award does not fall within the ambit of unreasonableness as dealt
with in
Herholdt (supra).
In regard to sanction Mr Orr submitted that the commissioner
conflated consistency with the appropriateness of the sanction and
furthermore did not lay any basis in evidence to substantiate her
finding that the applicant did not discharge the onus of proving
guilt against the applicant. In regard to her finding that the
applicant should have acted immediately to confirm its suspicions,
the delay in so doing was not an issue before her and was
irrelevant. Procedural fairness was similarly not in issue and
despite
this she proceeded to make a finding and order relief in
this regard.
I am in agreement with Mr Orr that the award cannot stand on the
review test as confirmed in
Herholdt (supra).
The
commissioner correctly summarised the evidence but her analysis
falls short and this is manifest from her contradictory conclusions.
This resulted in the applicant being denied a fair trial and the
applicant seeks remittal of the matter to the second respondent
on
the grounds that the lack of evidence on the record does not enable
a court to re-determine the fairness of the dismissal.
On viewing
the video it is apparent that the commissioner was justified in
concluding that the behaviour of Khumalo and Shilubane
was
suspicious but her failure to investigate the issue any further
depicts a manifest failure to determine a material issue.
In my view
this conduct results in a gross irregularity which would justify the
review.
Order
Therefore, I make the following order :
The arbitration award of the third respondent is reviewed and set
aside
The matter is remitted to the second respondent for determination
de
novo
by a commissioner other than the third respondent.
There is no order as to costs.
_______________________
Bhoola J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT:
C Orr
Instructed by Mkhabela
Huntley Adekeye Inc., Johannesburg
FIRST RESPONDENT:
N Basson
Instructed by Cheadle
Thompson &Haysom Inc., Johannesburg
1
[2012]
9 BLLR 857
(LAC) at para [39].