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[2014] ZALCJHB 56
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Blitz Printers v Commission for Conciliation, Mediation and Arbitration and Others (JR1782/2012) [2014] ZALCJHB 56 (10 February 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR 1782/2012
In the matter between:
BLITZ
PRINTERS Applicant
and
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION First
Respondent
COMMISSIONER D K
NKADIMENG N.O. Second
Respondent
CEPPWAWU obo JOHANNES
RABOROKO Third
Respondent
Heard:
20 August 2013
Delivered:
11 February 2014
Summary:
CCMA arbitration proceedings – Review of proceedings, decisions
and awards of commissioners
– Test for review – Section
145 of LRA 1995 – Requires the commissioner rationally and
reasonably consider the
evidence as a whole – determinations of
commissioner compared with evidence on record – commissioner’s
decision
irregular and unsustainable – award reviewed and set
aside
CCMA
arbitration proceedings – Review of proceedings, decisions and
awards of commissioners – assessment of evidence
by
commissioner – commissioner failing to determine evidence
reasonably and rationally – award set aside
Misconduct
– gross negligence – principles applicable –
conduct of the employee constituting gross negligence
–
dismissal justified
Misconduct
– gross insubordination – instruction to do additional
duties – employee’s refusal constitutes
gross
insubordination – dismissal justified
Misconduct
– issue of remorse – absence of remorse and persistent
reliance on false version – destructive of employment
relationship – dismissal justified
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
This is an application by the applicant to review and set aside an
arbitration award of the second respondent in his capacity
as a
commissioner of the CCMA (the first respondent). This application has
been brought in terms of Section 145 of the Labour Relations
Act
[1]
(“the LRA”).
[2]
The applicant dismissed the individual third respondent, Johannes
Raboroko (“Raboroko”), on 3 October 2011 on charges
of
gross negligence and failing to obey instructions (insubordination).
The third respondent union, CEPPWAWU, then pursued the
dismissal of
Raboroko as an unfair dismissal dispute to the CCMA and the matter
came before the second respondent for arbitration
over three days in
January, March and May 2012, and the arbitration concluded on 8 June
2012. In an award dated 17 June 2012, the
second respondent
determined that the dismissal of Raboroko by the applicant was
substantively unfair, and consequently made a
determination in terms
of which the applicant was directed to reinstate Raboroko with full
retrospective effect to the date of
his dismissal and pay him some
eight months’ salary in back pay. It is this determination by
the second respondent that forms
the subject matter of the review
application brought by the applicant, which application was timeously
filed on 1 August 2012.
Background facts
[3]
The applicant conducts business in the printing industry. Rabaroko
had been employed with the applicant for some time, having
commenced
employment in 1991, and at all relevant times working as a machine
operator. Raboroko reported to the floor manager,
Alpheus Mamorobela
(“Mamorobela”).
[4]
The applicant acquired a five colour printing machine in 2006/2007,
and Raboroko was designated as the operator of this machine
(hereinafter referred to as “the machine”). In his
capacity as operator of the machine, Raboroko was not only required
to actually operate the machine, but was also responsible to order
parts for the machine, arrange for the storage of these parts
in the
store room, immediately report any faults on or breakages of the
machine, and conduct maintenance on the machine. To put
it simply,
the duty of Raboroko was to ensure the continued production by the
machine.
[5]
The applicant had been experiencing serious difficulties in the
business since 2010 due to a downturn in work. The applicant
proceeded to cut costs wherever it could to save the business, and
even went so far as to terminate the contracts of external service
providers to the business and then itself do as best it could to
fulfil these functions internally. Of relevance to this matter,
this
included the termination of the contract with the cleaning
contractor. Regrettably, and despite all these efforts, the applicant
was compelled to ultimately conduct retrenchments, but fortunately
for Raboroko, he was not affected thereby.
[6]
The applicant did however, later experience some good fortune. In
August 2011, the applicant managed to get a large contract,
involving
regular orders. This was a lifeline for the applicant’s
business. However, the contract had very tight delivery
times and in
fact required that each order placed by the customer had to be
actually delivered within 3 days of each individual
order being
placed. In order to ensure that these delivery requirements were met,
the applicant placed its employees on continuous
working shifts. With
regard to the machine, Raboroko was dedicated to working the day
shift, and his manager, Mamorobela in fact
did the night shift
operations. The continuous operation of this machine was essential to
the compliance with the delivery deadlines
under this contract.
[7]
As touched on above, part of the duties of Raboroko was maintaining
the machine. In conducting such maintenance, and on 8 August
2011,
Raboroko however, pulled the gear chain too tight on the machine,
resulting in two of the gears breaking. This rendered the
machine
inoperative. The breakage was reported, assessed, and it was
determined that the 88T gear and the 152T gears has to be
replaced.
It was part of Raboroko’s duties to obtain these gears, but
inexplicably he only requested on 8 August 2011 that
the 152T gear be
ordered. The fact is that the machine needed both gears to work, and
thus remained inoperative. Only on 10 August
2011, two days later,
did Rabaroko advice that the 88T gear also had to be ordered.
[8]
By 15 August 2011, the machine was still not working and the customer
was threatening to cancel the contract. The applicant
was
consequently placing pressure on the manufacturer to provide the
gears and it had been requested that the manufacturer urgently
manufacture the gears and a driver was in fact arranged by the
applicant to travel to Johannesburg to collect the gears on 18 August
2011, when the manufacturer advised the gears would be ready.
[9]
It is during this time that Raboroko in fact came forward and said
that the applicant did not need to order the gears, as the
gears were
actually in stock at the applicant and he (Raboroko) had forgotten
about them being in stock. Raboroko never explained
when and
how he ultimately came to realize this.
[10]
As a result of the above conduct of Rabaroko, the operation of the
machine had been unnecessarily delayed for several days,
gears had
been unnecessarily ordered, and additional overtime had to be worked
once the machine was restored to working order,
to comply with the
customer’s requirements who was threatening contract
cancellation. By the time Raboroko had made his revelation,
the
driver had also been dispatched to Johannesburg to collect the gears.
All of this caused the applicant substantial prejudice
and actual
financial harm.
[11]
There is also a further issue that arose in this matter. The
evidence, as touched on above, was that as a result of the
applicant’s
financial constraints, it had to terminate the
services of its cleaning contractor to save costs. As a result, all
the employees
were placed on a roster to take turns to clear the
bathroom. This included Raboroko. All the other employees complied
with this
and everyone else worked together with the applicant in
this regard. Raboroko refused. He was then instructed to clean the
bathroom
when it was his turn. He still refused, and persisted with
this refusal. He conveyed this refusal in the presence of other
employees
as well, and was the only one who refused.
[13]
There was also an issue with Raboroko refusing to work overtime he
was instructed to work.
[14]
As a result of all of the above, Raboroko was then charged with gross
negligence, and the persistent refusal to obey reasonable
instructions from management. Raboroko was then subjected to
disciplinary proceedings held on 29 September 2011, which proceedings
were presided over by an independent chairperson. In a written
finding dated 30 September 2011, the chairperson found Raboroko
guilty of the charges against him and after considering mitigating
and aggravating factors, recommended his dismissal. This
recommendation
was accepted by the applicant, and Raboroko was
dismissed on 3 October 2011.
[15]
As stated, this dismissal then came before the second respondent for
a determination as to whether the dismissal was fair,
and the second
respondent then found that Raboroko was not grossly negligent, the
existence of insubordination was not shown by
the applicant to exist,
and that Raboroko in fact committed no misconduct. The second
respondent however, did conclude that the
dismissal of Raboroko was
procedurally fair. The second respondent in the end concluded that
the dismissal of Raboroko was however
substantively unfair, and
afforded him reinstatement and back pay, giving rise to these
proceedings.
The relevant test
for review
[16]
In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[2]
Navsa,
AJ held that in the light of the constitutional requirement (in s 33
(1) of the Constitution) that everyone has the right
to
administrative action that is lawful, reasonable and procedurally
fair, and that ‘the reasonableness standard should now
suffuse
s 145 of the LRA’. The majority of the Constitutional Court set
the threshold test for the reasonableness of an award
or ruling as
the following: ‘Is the decision reached by the commissioner one
that a reasonable decision-maker could not reach?’
[3]
Following on, and in
CUSA
v Tao Ying Metal Industries and Others,
[4]
O'Regan J held:
‘
It is clear...that
a commissioner is obliged to apply his or her mind to the issues in a
case. Commissioners who do not do so are
not acting lawfully and/or
reasonably and their decisions will constitute a breach of the right
to administrative justice
.’
[17]
The
Sidumo
review
test was applied in
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
[5]
,
and the Court, as to what would be considered to be unreasonable for
the purposes of this test, said:
[6]
‘…
It seems
to me that,…there can be no doubt now under
Sidumo
that
the reasonableness or otherwise of a commissioner's decision does not
depend - at least not solely - upon the reasons that
the commissioner
gives for the decision. In many cases the reasons which the
commissioner gives for his decision, finding or award
will play a
role in the subsequent assessment of whether or not such decision or
finding is one that a reasonable decision maker
could or could not
reach. However, other reasons upon which the commissioner did not
rely to support his or her decision or finding
but which can render
the decision reasonable or unreasonable can be taken into account.
This would clearly be the case where the
commissioner gives reasons
A, B and C in his or her award but, when one looks at the evidence
and other material that was legitimately
before him or her, one finds
that there were reasons D, E and F upon which he did not rely but
could have relied which are enough
to sustain the decision.’
[18]
In applying this review test, the SCA in
Andre
Herholdt v Nedbank Ltd
[7]
concluded as follows:
[8]
‘
In summary, the
position regarding the review of CCMA award is this: A review of a
CCMA award is permissible if the defect in the
proceedings fall
within one of the grounds in s 145(2) (a) of the LRA. For a defect in
the conduct of the proceedings to amount
to a gross irregularity as
contemplated by s 145(2) (a) (ii), the arbitrator must have
misconceived the nature of the inquiry or
arrived at an unreasonable
result. A result will only be unreasonable if it is one that a
reasonable arbitrator could not reach
on all the material that was
before the arbitrator. Material errors of fact, as well as the weight
and relevance to be attached
to the particular facts, are not in and
of themselves sufficient for an award to be set aside, but are only
of consequence if their
effect is to render the outcome
unreasonable.’
What
the Court was saying, simply put, and is that if the arbitrator
ignored material evidence, and in considering this material
evidence
together with the case as a whole, the review court believes that the
arbitration award outcome cannot now be reasonably
sustained on any
basis, then the award would be reviewable.
[19] Following the
judgment of the SCA in
Herholdt
,
the Labour Appeal Court has now in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[9]
again interpreted and applied the
Sidumo
review
test and held as follows:
[10]
‘
Sidumo does not
postulate a test that requires a simple evaluation of the evidence
presented to the arbitrator and based on that
evaluation, a
determination of the reasonableness of the decision arrived at by the
arbitrator. … In other words, in a case
such as the present,
where a gross irregularity in the proceedings is alleged, the enquiry
is not confined to whether the arbitrator
misconceived the nature of
the proceedings, but extends to whether the result was unreasonable,
or put another way, whether the
decision that the arbitrator arrived
at is one that falls in a band of decisions a reasonable decision
maker could come to on the
available material’
The Court concluded:
[11]
‘
In short: A review
court must ascertain whether the arbitrator considered the principal
issue before him/her, evaluated the facts
presented at the hearing
and came to a conclusion which was reasonable to justify the decision
he or she arrived at.’
[20]
Therefore, t
he first step in a review enquiry is
to consider and determine if a material irregularity indeed exists. A
review court determines
whether such an irregularity exists by
considering the evidence before the arbitrator as a whole, as
gathered from the review record
and comparing this to the content of
the award and reasoning of the arbitrator as reflected in such award.
The review court must
also at this stage apply all the relevant
principles of law in order to determine what indeed constituted the
proper evidence that
the arbitrator, as a whole, would have had to
consider. If the review court in conducting this first step enquiry
should find that
no irregularity exists in the first instance, the
matter is at an end, no further determinations need to be made, and
the review
must fail.
[21]
Should the review court however, conclude that a material
irregularity indeed exists, then the second step in the review test
follows, which is a determination as to whether if this irregularity
did not exist, this could reasonably lead to a different outcome
in
the arbitration proceedings. Put differently, could another
reasonable decision-maker, in conducting the arbitration and arriving
at a determination, in the absence of the irregularity and
considering the evidence and issues as a whole, still reasonably
arrive
at the same outcome? In conducting this second step of the
review enquiry, the review court need not concern itself with the
reasons
the arbitrator has given for the outcome he or she has
arrived at, because the issue of the arbitrator’s own reasoning
was
already considered in deciding whether an irregularity existed as
part and parcel of the first part of the review test. The review
court, in essence, at the second stage of the review test, takes the
proper evidence as a whole, as ascertained from the review
record,
considers the relevant legal principles and decides whether the
outcome that the arbitrator arrived at could nonetheless
reasonably
be arrived at by another reasonable decision-maker, even if it is for
different reasons. If, and pursuant to this second
step in the review
enquiry, the review court is satisfied that the same outcome could
not reasonably follow even for any other
reasons, then the review
must succeed, because, simply put, the irregularity would have
affected the outcome. The end result always
has to be an unreasonable
outcome flowing from an irregularity, for a review to succeed.
[22]
I will now proceed to determine the applicant’s review
application on the basis of the above principles and the two step
enquiry in the application of the
Sidumo
test as I have set
out above.
The
reasoning of the arbitrator
[23]
The second respondent, as arbitrator, commenced his reasoning by
finding that in this matter, he had the evidence of Raboroko
as
directly opposed to the evidence of Mamorobela. Unfortunately, the
second respondent never says which of these witness’
evidence
he actually then prefers and why he does so. He records his view that
conflicting evidence exists, and leaves it there.
[24]
The second respondent had reasoned that the gross negligence charge
against Raboroko was based on two foundations, the first
being that
he pulled the chain too tight on the machine causing the gears to
break, and the second being that he had forgotten
that the gears were
actually in stock causing the whole state of affairs listed above. I
agree with the second respondent that
this is indeed the substance of
the applicant’s complaint of gross negligence against Raboroko.
[25]
In firstly dealing with the fact that Raboroko forgot about the two
gears being in stock, which the second respondent actually
accepted
was indeed the case, the second respondent found that to forget such
things may constitute negligence, but considering
that the parts were
ordered three years ago, this did not constitute “punishable”
negligence. On this basis alone,
the second respondent found that
Raboroko was not guilty of gross negligence in this respect.
[26]
As to the issue of the chain being pulled too tight, the second
respondent found that this needed to be dealt with by an expert
in
respect of the machine. The second respondent found that he could not
accept any evidence by both Raboroko and Mamorobela in
this regard.
Because of this reason alone, the second respondent then accepted
that no gross negligence on the part of Raboroko
with regard to the
issue of pulling the chain too tight exists.
[27]
As to the refusal by Raboroko to obey the instruction to clean the
bathroom, the second respondent found that in the absence
of a job
description, it was hard to believe that a machine operator such as
Raboroko could be required to clean a bathroom. For
this reason
alone, the second respondent concluded that Raboroko was not guilty
of insubordination.
[28]
The second respondent also dismissed the applicant’s
insubordination case of Raboroko refusing to work overtime on the
basis that it could not be shown that Raboroko had actually agreed to
work overtime, and as such he could not be instructed to
work
overtime.
[29]
Based on the above reasoning, the second respondent then concluded
that the dismissal of Raboroko was substantively unfair
and awarded
him fully retrospective reinstatement because, according to the
second respondent, he would be acting outside his powers
of he did
not make such an award.
Merits
of the review: the issue of gross negligence
[30]
The applicant raised a number of issues as to why the second
respondent committed a reviewable irregularity in finding that
the
dismissal of the second applicant was substantively unfair. In broad
terms, the applicant contends that the second respondent
did not
evaluate and determine the evidence properly, actually ignored
pertinent evidence, and also that the second respondent
failed to
have regard to the relevant legal principles, especially relating to
gross negligence and the issue of a complete lack
of remorse on the
part of Raboroko.
[31]
I will firstly deal with the issue of Rabaroko forgetting about the
parts. What the second respondent completely failed to
do was to have
regard to any proper context. The second respondent in essence
determined this issue in a vacuum, and only had regard
to one
consideration, being that the parts were ordered three years ago. The
nub or the reasoning of the second respondent is thus
that as these
parts were ordered so long ago it is understandable that Raboroko
would forget about it. In my view, the proper context
within which to
have considered this issue is the fact that continued production was
a pressing issue at the time and of critical
importance to the
applicant’s business. It already had a very demanding customer
who required strict turnaround times, of
which all the employees, and
especially Raboroko, must have been patently aware. I find it simply
incomprehensible that Raboroko,
under such circumstances, did not
simply go into the parts store to check if there were parts,
especially considering he was responsible
for part maintenance,
storage and control. This, surely, and also considering Raboroko was
dedicated to this machine, is in any
event an issue of common sense
conduct. Proper context consideration means that it simply does not
matter if the parts were ordered
three years ago, as the necessary
effort in just checking the parts store and exercising proper control
over stored parts available
would completely negate this.
[32]
There is also further context which in my view the second respondent
completely ignored. This is the fact that initially Raboroko
only
requested that the 152T gear be ordered, and only two days later, did
Raboroko request that the 88T gear also had to be ordered.
This, in
my view, shows complete indifference to his duties to ensure that the
machine returns to proper working order as expeditiously
as possible.
This in fact creates the impression that one gear was indeed in
stock, and was later then found not to be in stock.
As it later
turned out, both gears were actually in stock. This in itself smacks
of entirely indifferent parts stock control by
Raboroko. This stock
control was Raboroko’s direct responsibility, where it came to
parts for the machine.
[33]
I also consider another pertinent piece of evidence the second
respondent had no regard to whatsoever in his award. This is
the fact
that as part of Raboroko’s duties of maintenance of storage of
spare parts for the machine, which he is dedicated
to, he had to
conduct regular inspections of the parts store so as to ensure all
the required spare parts are in stock. This being
the case, and with
no such gears at issue in this case being ordered in three years,
then surely it must have been patently apparent
in the course of
these regular inspections that the gears were in stock. If not, they
would be ordered. To describe it simply –
these regular
inspections must have refreshed Raboroko’s memory. Again,
and also in this regard, surely a simple inspection
of the parts
store when the gears broke, by Raboroko, would have found the gears
in stock.
[34]
To add to what happened in this matter, there is not even an
explanation by Raboroko as to why it took so long for him to discover
the gears were in stock, and how he even came to discover this. One
is compelled to ask the question whether it is simply not a
case of
Raboroko not actually bothering to even check the parts store in the
first place, until later. By the time Raboroko did
make the
revelation that the gears were in stock, the manufacturer was
hurrying to manufacture the parts and a driver had been
dispatched to
collect it, all against the backdrop of a very irate customer whose
continued satisfaction was important to the survival
of the
applicant’s business and the machine which remained
inoperative. It is not even clear how long Raboroko had known
the
gears were in stock, before making the revelation. There can in my
view be no justification for Raboroko’s conduct in
this regard,
which shows complete indifference to his duties.
[35]
The second respondent seems to accept there was negligence on the
part of Raboroko. He however, finds that it was not “punishable
negligence”. I cannot fathom the concept of punishable or non
punishable negligence. Conduct is either negligent or not.
The degree
of negligence does not negate the existence of negligence in the
first place, but is relevant to the enquiry whether
the negligence is
gross or not. The simple point is that negligence of a lesser degree
does not make it anything else but negligence.
If the negligence is
not gross or not material, this would impact on the issue of the
sanction to be imposed. This means that for
lesser negligence, so to
speak, dismissal as a sanction could be unfair, whilst for gross
negligence dismissal could be appropriate
even for a first offence.
The point however, is that the misconduct actually still exists,
being that of negligence. For the second
respondent to in essence
find that there exists unpunishable negligence and because of this
the misconduct is not proven to exist
is simply irrational,
unreasonable and unfounded in law. What the second respondent should
have done was to find that misconduct
exists in the form of
negligence in this regard, and then considered the degree of
negligence in order to determine an appropriate
and fair sanction. He
committed a material irregularity by concluding that what he called
“unpunishable negligence”
was not misconduct, which it
clearly was. In my view, therefore, there can be little doubt that
the conduct of Raboroko with regard
to “forgetting” about
the two gears in stock is certainly negligence, and therefore this
misconduct had in fact been
proven by the applicant to exist.
[36]
The next issue to consider with regard to the negligence charge
relates to the issue of the tightening of the chain on the
machine
causing the gears to break. It was undisputed that Raboroko indeed
tightened the chain on the machine. Mamorobela testified
that as a
direct result of Raboroko tightening the chain, the gears broke. It
must also be remembered that Mamorobela was the floor
manager, and
similar to Raboroko, actually worked on the machine since it was
procured and knows exactly how it works. Mamorobela
testified under
cross examination that he had four years’ experience on the
machine and had trained Raboroka to service the
machine. Mamorobela
testified that Raboroko admitted the gears broke because he tightened
the chain. Mamorobela also explained
how the chain and the gears
worked. He said the chain pulled two gears on the machine and if the
chain was pulled too tight the
gears would run uneven and break.
Mamorobela specifically said that Raboroko was grossly negligent in
this regard. As opposed to
the evidence of Mamorobela, Raboroko
testified that the gears were in fact not broken. Raboroko testified
that both he and Mamorobela
adjusted the machine (referring to the
chain). Raboroko stated that the gears were ordered in August so the
applicant could have
extra gears in stock, after he (Raboroko) had
actually replaced the gears in June. Raboroko went so far as to
testify in giving
evidence in chief that it was not true that the
machine was broken down in the first place, but ultimately, did
concede under cross
examination that the machine had broken down and
had to be repaired. The above was then the two conflicting versions
the second
respondent had to determine and which he identified at the
start of his reasoning in his award.
[37]
Significantly, the second respondent never accepted that the machine
was indeed in working order as suggested by Raboroko.
In fact, a
proper consideration of the second respondent’s award shows
that he seemed to accept the gears broke and the machine
was
inoperative, but the approach he adopted was that without the
evidence of an expert he could not determine why this had happened.
Therefore, and in effect, this had to mean that the version of
Rabaroko that the gears had not broken in the first place had to
be
untrue, on the second respondent’s own reasoning. This being
the case, the second respondent then actually had to consider
the
evidence of Mamorobela on the one part and Rabaroko on the other, and
then decide which version was true, as to the issue of
what caused
the gears to break. It was improper and irregular for the second
respondent to in fact decline to make such a determination,
citing
that an expert was needed as excuse for not making the determination.
As was said in
Sasol
Mining (Pty) Ltd v Ngqeleni NO and Others:
[12]
‘One of the commissioner's prime functions was to ascertain the
truth as to the conflicting versions before him...’
[38]
The second respondent failed to make any credibility finding or
determine the truth of the two conflicting versions. This is
despite
the fact that at the very start of his reasoning, the second
respondent appeared to comprehend that central to this matter
was the
determination of the conflicting evidence of Mamorobela and Raboroko.
The second respondent, had he discharged his duties
properly, was
compelled to determine this conflicting evidence and thus decide what
evidence to accept, and what to reject. The
second respondent had to
assess credibility and probabilities and come to proper and reasoned
finding as to what evidence to accept.
The second respondent did none
of this. I
n
Network
Field Marketing (Pty) Ltd v Mngezana NO and Others
[13]
the Court said the following, in concluding that the commissioner
committed a reviewable irregularity, which
ratio
in my view is quite apposite
in
casu
:
‘
In the few
instances where the arbitrator reveals his analysis what stands out
is the boldness of his conclusions about the reliability
of the
witnesses, which he appears to base on the most slender factual
foundation. He also does not tell us why an analysis of
the
conflicting evidence using a balance of probabilities could not have
produced an outcome and why it was necessary to resort
to making
credibility findings to determine the matter.’
The Court in
Network
Field Marketing
then
concluded as follows:
[14]
‘
It is possible
that there might have been another basis for doubting the value of
Little and Steinberg's evidence but if there was
it did not form part
of the arbitrator's reasoning in dismissing the credibility of
Steinberg's testimony on the most slender basis
and, in the case of
Little, there was no factual basis at all. By excluding the
applicant's evidence from serious consideration
on this unwarranted
basis, the arbitrator effectively denied the applicant a fair hearing
which amounts to misconduct by the arbitrator
in relation to his
duties...’
[39]
Similarly and in
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
[15]
,
the Court, in dealing with issues of a commissioner having to
determine conflicting evidence, held as follows:
‘
To resolve the
factual controversy between Carstens and Nkunzi, the commissioner had
to embark upon a balanced assessment of the
credibility, reliability
and probabilities associated with their respective versions. But the
commissioner did nothing of the sort
- and instead simply plumbed for
Nkunzi's version. In the result, the award is bereft of any reason
whatsoever for why Nkunzi "was
able to establish" her
version on this score...
The Court concluded that
the failure to do the above was a failure to have regard to the
evidence as required. This ratio, in my
view, is most descriptive of
the second respondent’s failure
in casu
, and a similar
consequence must follow.
[40] I
have touched on the judgment of
Sasol
Mining
[16]
above. This judgment however requires more attention, especially
where the Court said the following, which
ratio
can equally be applied in this instance:
[17]
‘
Regrettably, the
commissioner's logic (or, more accurately, the lack of it) permeates
many of the awards that are the subject of
review proceedings in this
court. Some commissioners appear wholly incapable of dealing with
disputes of fact - their awards comprise
an often detailed summary of
the evidence, followed by an 'analysis' that is little more than a
truncated regurgitation of that
summary accompanied by a few
gratuitous remarks on the evidence, followed by a conclusion that
bears no logical or legal relationship
to what precedes it. What is
missing from these awards (the award under review in these
proceedings is one of them) are the essential
ingredients of an
assessment of the credibility of the witnesses, a consideration of
the inherent probability or improbability
of the version that is
proffered by the witnesses, and an assessment of the probabilities of
the irreconcilable versions before
the commissioner...’
The Court in
Sasol
Mining
concluded:
[18]
‘…
. The
commissioner was obliged at least to make some attempt to assess the
credibility of each of the witnesses and to make some
observation on
their demeanour. He ought also to have considered the prospects of
any partiality, prejudice or self-interest on
their part, and
determined the credit to be given to the testimony of each witness by
reason of its inherent probability or improbability.
He ought then to
have considered the probability or improbability of each party's
version. The commissioner manifestly failed to
resolve the factual
dispute before him on this basis. …’
‘
In short: the
arbitrator failed to have any regard to the credibility and
reliability of any of the witnesses, nor did he have regard
to the
inherent probabilities of the competing versions before him. That
failure, and the fact that the award clearly may have
been different
had the commissioner properly acquitted himself, renders the award
reviewable on account of a gross irregularity
committed by the
commissioner in the conduct of the arbitration proceedings.’
I fully agree with the
above reasoning, which in my view is directly applicable to the
conduct and failure of the second respondent
in casu
.
[41]
In determining the conflicting evidence between Raboroko and
Mamorobela, the second respondent should have done as follows,
as
determined by the SCA in
SFW
Group Ltd and Another v Martell et Cie and Others
[19]
:
‘…
The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised as follows.
To come to
a conclusion on the disputed issues a court must make findings on (a)
the credibility of the various factual witnesses;
(b) their
reliability; and (c) the probabilities. As to (a), the court's
finding on the credibility of a particular witness will
depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors, not necessarily
in order
of importance, such as (i) the witness' candour and demeanour in the
witness-box, (ii) his bias, latent and blatant, (iii)
internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf…, (v) the
probability or
improbability of particular aspects of his version, (vi) the calibre
and cogency of his performance compared to
that of other witnesses
testifying about the same incident or events. As to (b), a witness'
reliability will depend, apart from
the other factors mentioned under
(a) (ii), (iv) and (v) above, on (i) the opportunities he had to
experience or observe the event
in question and (ii) the quality,
integrity and independence of his recall thereof. As to (c), this
necessitates an analysis and
evaluation of the probability or
improbability of each party's version on each of the disputed
issues...’
[42]
I am unfortunately again compelled to point out that the second
respondent did none of the above. Instead, he made no finding
at all
and referred in passing to some or other nonexistent expert as the
required deadlock breaking mechanism. The second
respondent had
to consider the testimony, as referred to above, and had to make a
call as to what conflicting evidence to accept.
If the evidence of
Mamorobela was to be accepted, then the evidence the second
respondent had to use to determine the issue of
the negligence of
Raboroko was that Raboroko was properly trained in the maintenance of
the machine, had incorrectly tightened
the chain, this caused the two
gears to break, and Raboroko in fact admitted that this is what
happened. There would also have
been no explanation by Raboroko for
this conduct. If the evidence of Raboroko was to be accepted then the
evidence the second respondent
had to use to determine the question
of negligence was that Raboroko did not do maintenance on the
machine, he was never trained
to do so, that he and Mamorobela
adjusted the chain together and the gears never broke as a result. As
the second respondent had
to decide one way, or the other, in this
regard, and because he never did this, he actually failed to consider
and determine pertinent
evidence before him, and this would certainly
be a material irregularity. As was said in
Network
Field Marketing
[20]
:
‘…
By
excluding the applicant's evidence from serious consideration on this
unwarranted basis, the arbitrator effectively denied the
applicant a
fair hearing which amounts to misconduct by the arbitrator in
relation to his duties…’
[43]
Further as to this failure by the second respondent, I refer to what
the Court said in
Pam
Golding Properties (Pty) Ltd v Erasmus and Others
[21]
:
'In his judgment in
Sidumo
, Ngcobo J reaffirmed the role of reasonableness in
relation to conduct in these terms:
‘
It
follows therefore that where a commissioner fails to have regard to
material facts, the arbitration proceedings cannot in principle
be
said to be fair because the commissioner fails to perform his or her
mandate. In so doing ...the commissioner's action prevents
the
aggrieved party from having its case fully and fairly determined.
This constitutes a gross irregularity in the conduct of the
arbitration proceedings as contemplated in s 145(2)
(a)
(ii) of the LRA. …’'
[44]
The Court in
Gold
Fields Mining
[22]
also dealt with the consideration of a review application where the
review ground related to the question whether the commissioner
ignored or negated material evidence, and the Court said:
‘…
.
The questions to ask are these: … (ii) Did the arbitrator
identify the dispute he was required to arbitrate….? (iii)
Did
the arbitrator understand the nature of the dispute he or she was
required to arbitrate?.. (iv) Did he or she deal with the
substantial
merits of the dispute? and (v) is the arbitrator’s decision one
that another decision-maker could reasonable
have arrived at based on
the evidence?
Where the arbitrator
fails to have regard to the material facts it is likely that he or
she will fail to arrive at a reasonable
decision. Where the
arbitrator fails to follow proper process he or she may produce an
unreasonable outcome…’
[45]
Accordingly, I conclude that where it comes to the issue of the
determination of the negligence charge relating to the tightening
of
the chain, the second respondent committed a material irregularity,
and that he failed to properly consider the evidence before
him in
this regard, and simply did not substantially deal with the
conflicting evidence before him in this regard as he was required
to
do. The second respondent also committed a material irregularity in
determining the issue of the gross negligence charge in
respect of
the issue of Raboroko forgetting about the gears in stock, for the
reasons set out above, which in a nutshell also concerns
the second
respondent having ignored and negated pertinent and crucial evidence.
[46]
Since the second respondent’s determination of the gross
negligence charge therefore constitutes a material irregularity,
the
next question in the application of the review test is then whether
this material irregularity has the effect of causing that
the
ultimate outcome arrived at by the second respondent would be
unreasonable. Put differently, is the ultimate conclusion of
the
second respondent that Raboroko did not commit misconduct in respect
of this charge still sustainable and constitutes a reasonable
outcome
for any other reasons, based on the evidence properly on record as a
whole. In making this determination, I must then actually
consider
the evidence properly before the second respondent, as a whole, and
the first step in doing so would obviously be a determination
as
which version to prefer, being that of Raboroko or that of
Mamorobela. I have little hesitation in preferring the evidence of
Mamorobela, for several reasons. The first reason is that material
parts of the version of Raboroko was never put to Mamorobela
under
cross examination
[23]
,
with one critical issue in this regard standing out, being the
contention by Raboroko that the machine was never broken and the
gears were ordered just to have stock in the store never having been
so put. The second reason is that a reading of the record
shows that
Raboroko was very argumentative when giving evidence and had
difficulty in answering questions directly, and properly.
The third
reason is that Raboroko’s version was simply on the
probabilities entirely unlikely, considering the actual undisputed
background facts. The fourth reason is the complete incompatibility
of two versions offered by Raboroko, the one being that he
simply
forgot about the parts in the store because they were ordered three
years ago, and the other being that he actually used
these parts as
replacements on the machine in June which is why new parts were
ordered in August, which in my view shows a propensity
towards
fabricating evidence. The final reason is that Raboroko could offer
no explanation for his behaviour, which in my view,
was incumbent on
him to do.
[24]
[47]
Therefore, a proper determination of the conflicting evidence on
record in line with the principles prescribed in the judgment
of
SFW
Group
, can only lead to the preferring of the evidence of
Mamorobela over that of Raboroko. Along with this evidence of
Mamorobela, the
documentary evidence must also be considered, along
with the evidence offered by Raboroko himself not in conflict with
that of
Mamorobela and the common cause evidence. From this totality
of evidence, the following is in my view the pertinent issues that
come to the fore in the determination of the gross negligence charge:
(1) Raboroko was specifically tasked to operate and maintain
the
machine, and had been doing so for some four years at least; (2)
Raboroko was responsible to order parts for the machine, and
exercise
proper control over parts stock in the store; (3) Raboroko, in the
process of maintaining the machine, in fact did tighten
the chain too
tight causing the two gears to break; (4) Raboroko could offer no
explanation for this conduct; (5) Raboroko could
have immediately
repaired the machine, as the parts were in stock, but he either did
not exercise proper control of the parts stock
or did not even bother
to check the stock; (6) For no apparent plausible reason, Raboroko
first just ordered one part, and several
days later the other, and in
the meantime the machine was inoperative; (7) Raboroko never
explained how and exactly when he discovered
the two gears were
indeed in stock, and why he could not have disclosed or even
discovered this earlier; (8) what is apparent is
that Raboroko waited
until the point of a driver being dispatched to collect the gears
from the manufacturer in Johannesburg before
saying anything; (9)
solely as a result of the above conduct of Raboroko, the machine was
out of production for more than a week,
with an irate customer
threatening to cancel the contract, and the business of the applicant
already being under financial constraint.
[48]
There can therefore be no doubt that on the proper evidence, Raboroko
was indeed negligent. This is the only reasonable outcome
that could
possibly result in this matter. The second respondent’s
determination that no misconduct in the form of negligence
in fact
existed is thus entirely unsustainable, and clearly in my view not an
outcome a reasonable decision maker could come to.
This conclusion of
the second respondent thus has to be reviewed and set aside.
[49]
The next point to however consider, in the context of a reasonable
outcome determination, is that the finding of the existence
of
negligence does not per se lead to dismissal. Whether or not
misconduct in the form of negligence justifies dismissal is a
question of the degree of the negligence, and it is in this context
that the concept of “gross negligence” comes into
play.
In dealing with the issue of gross negligence as a concept, the Court
in
Transnet
Ltd t/a Portnet v Owners of the MV Stella Tingas and Another
[25]
said:
‘…
Despite
dicta which sometimes seem to suggest the contrary, what is now
clear, following the decision of this Court in
S
v Van Zyl
1969
(1) SA 553
(A)
,
is that it is not consciousness of risk-taking that distinguishes
gross negligence from ordinary negligence. (See also
Philotex
(Pty) Ltd and Others v Snyman and Others; Braitex (Pty) Ltd and
Others v Snyman and Others
1998
(2) SA 138 (SCA)
at
143C - J.) This must be so. If consciously taking a risk is
reasonable there will be no negligence at all. If a person foresees
the risk of harm but acts, or fails to act, in the unreasonable
belief that he or she will be able to avoid the danger or that
for
some other reason it will not eventuate, the conduct in question may
amount to ordinary negligence or it may amount to gross
negligence
(or recklessness in the wide sense) depending on the circumstances.
(
Van
Zyl's
case supra at 557A - E.) If, of course, the risk of harm is foreseen
and the person in question acts recklessly or indifferently
as to
whether it ensues or not, the conduct will amount to recklessness in
the narrow sense, in other words, dolus eventualis;
but it would then
exceed the bounds of our modern-day understanding of gross
negligence. On the other hand, even in the absence
of conscious
risk-taking, conduct may depart so radically from the standard of the
reasonable person as to amount to gross negligence
(
Van
Zyl's
case supra at 559D - H). It follows that whether there is conscious
risk-taking or not, it is necessary in each case to determine
whether
the deviation from what is reasonable is so marked as to justify it
being condemned as gross… Lee in
The
Elements of Roman Law
4th ed at 288 describes gross negligence as being 'a degree of
negligence which indicates a complete obtuseness of mind and
conduct'.
Buckland in
Textbook
of Roman Law
3rd ed at 556 suggests that what is contemplated is a 'failure to
show any reasonable care'.
Dicta
in modern judgments, although sometimes more appropriate in respect
of
dolus
eventualis,
similarly reflect the extreme nature of the negligence required to
constitute gross negligence. Some examples are: 'no consideration
whatever to the consequences of his acts' (
Central
South African Railways v Adlington & Co
1906
TS 964
at 973); 'a total disregard of duty' (
Rosenthal
v Marks
1944 TPD 172
at 180); 'nalatigheid van 'n baie ernstige aard' or ''n
besondere hoë graad van nalatigheid' (
S
v Smith en
Andere
1973
(3) SA 217
(T)
at
219A - B); 'ordinary negligence of an aggravated form which falls
short of wilfulness' (
Bickle
v
Joint
Ministers of Law and Order
1980
(2) SA 764
(R)
at
770C); 'an entire failure to give consideration to the consequences
of one's actions' (
S
v Dhlamini
1988
(2) SA 302
(A)
at
308D).” It follows, I think, that to qualify as gross
negligence the conduct in question, although falling short of dolus
eventualis, must involve a departure from the standard of the
reasonable person to such an extent that it may properly be
categorised
as extreme; it must demonstrate, where there is found to
be conscious risk-taking, a complete obtuseness of mind or, where
there
is no conscious risk-taking, a total failure to take care…’
[50]
In my view, the conduct of Raboroko
in
casu
can safely be categorised as an extreme departure from the norm, in
the form of a complete failure to take care, which would constitute
gross negligence. What the proper factual matrix in this matter
firstly shows is that Raboroko in maintaining the machine in the
first instance, and despite his wealth of experience, failed to
exercise a basic level of care, causing the gears to break. Then,
and
following on, how Raboroko behaved after that not only compounds the
effects of his initial failure to take care, but in itself
demonstrates a further instance of a total failure to take care. I
say this because, in my view, a simple inspection of the parts
store
by Raboroko, who was responsible for parts stock management in the
first place, would have found the gears in stock. Instead,
and
inexplicably, Raboroko then orders one part only, and several days
later, another part. He does not even explain how he later
came to
discover both gears in stock. This all shows a complete indifference
to his duties. I also consider the context of the
demanding customer
with strict deadlines and the importance of the machine remaining
operative to the business of the applicant.
I therefore conclude that
the only reasonable outcome that could have been arrived at, as a
matter of law, and in applying the
facts in this matter to the law,
is that Raboroko actually committed misconduct in the form of gross
negligence, on the basis of
both his maintenance of the machine and
his parts stock management. There is accordingly no other basis on
which the ultimate outcome
arrived at by the second respondent can be
sustained, and as such, his conclusion has to be reviewable. I refer
in this regard
to
F
N Marketing Distribution Services v Commissioner Matee and Others
[26]
where it was held as follows, and in respect of which the comparisons
to the matter
in
casu
is
immediately apparent:
‘
In my view the
statement by the arbitrator that there is 'no evidence to suggest'
the employee's guilt, taken together with his
failure to refer to and
to analyse key portions of the evidence referred to above,
demonstrates a failure on the part of the arbitrator
to direct his
mind to material, and largely common cause, evidence. Mr Morapedi's
evidence that he placed the ten boxes of Panado
next to the
employee's vehicle and that the employee was then responsible to see
that they were loaded on to the vehicle, was never
challenged. The
employee's own evidence was that it was his responsibility to check
that the items to be delivered were loaded
on to his truck. On his
own evidence he failed to do this. In my view this establishes
negligence and possibly gross negligence
on the part of
the employee. The arbitrator's award, however, gives no indication
that he applied his mind to any of this
evidence, nor that he
considered whether this evidence was sufficient to justify finding
the employee guilty of the charge against
him. In my view this is a
sufficient basis to review and set aside his award. (See
Venture
Motor Holdings Ltd t/a Williams Hunt Delta v Biyana and Others
(1998) 19 ILJ 1266 (LC) at para 26;
Vita Foam SA (Pty) Ltd v I
CCMA and Others
(2000) 21 ILJ 244 (LC);
[1999] 12 BLLR 1375
(LC)
at paras 16 24.)’
[51] A
further judgment of relevance is that of
Nampak
Corrugated Wadeville v Khoza
[27]
,
in
which case the employee party was charged and dismissed for gross
negligence in that he had failed to take proper care of equipment
for
which he was responsible. The Industrial Court found that the
employee was negligent but could not find gross negligence. The
LAC
disagreed with the Industrial Court and held:
‘…
The
probable explanation for his conduct, in these circumstances, is
simply that he deliberately neglected to perform his duties.
Consequently, I do not share the view of the Industrial Court that
the evidence against Khoza was so circumstantial that it could
not be
used to explain his conduct. It was Khoza who had to furnish that
explanation. In the absence of any credible explanation,
the
inference that he deliberately neglected to perform his duty is
irresistible. This finding by the employer cannot be faulted.’
The
above must be considered especially in the absence of any proper
explanation by Raboroko for his misconduct in the current matter.
[28]
[52]
A
final consideration in the determination of the gross negligence
issue is the fact that throughout the disciplinary proceedings,
and
even as late as in the arbitration proceedings, Raboroko still
maintained the entirely unjustified and unreasonable view that
he did
nothing wrong, and even offered what I consider to be an entirely
unlikely, if not false, explanation for what happened.
As such, the
dismissal of Raboroko for this misconduct, which indeed existed, was
justified. In
Theewaterskloof
Municipality v SA Local Government Bargaining Council (Western Cape
Division) and Others
[29]
it was held:
‘
The general
principle that conduct on the part of an employee which is
incompatible with the trust and confidence necessary for
the
continuation of an employee relationship will entitle the employer to
bring it to an end is a long-established one. See
Council
for Scientific and Industrial Research v Fijen
(1996)
17 ILJ 18 (A)
at 26E-G.’
[53]
In
De Beers
Consolidated Mines Ltd v Commission for Conciliation, Mediation and
Arbitration and Others,
[30]
the Court held as follows, which in my view is quite apposite to the
current matter:
‘…
Dismissal
is not an expression of moral outrage; much less is it an act of
vengeance. It is, or should be, a sensible operational
response to
risk management in the particular enterprise. That is why supermarket
shelf packers who steal small items are routinely
dismissed. Their
dismissal has little to do with society's moral opprobrium of a minor
theft; it has everything to do with the
operational requirements of
the employer's enterprise.’
And:
‘…
Where, as
in this case, an employee, over and above having committed an act of
dishonesty, falsely denies having done so, an employer
would,
particularly where a high degree of trust is reposed in an employee,
be legitimately entitled to say to itself that the
risk of continuing
to employ the offender is unacceptably great.
’
[31]
[54]
It is thus my conclusion that Raboroko had indeed committed
misconduct in the form of gross negligence for which he had been
charged with by the applicant. Any finding to the contrary, on the
evidence, is entirely unsustainable and a reviewable irregularity.
It
is also my view that based on this charge alone, the dismissal of
Raboroko was certainly justified, and any finding to the contrary
is
equally a reviewable irregularity.
Merits
of the review: the issue of insubordination
[55]
The next issue to consider is the insubordination charge against
Raboroko. Fortunately, and in considering the insubordination
issue, the enquiry is a much simpler one. In this regard, the
applicant had two grounds of complaint against Raboroko, the first
being that Raboroko refused to work overtime as instructed, and the
second that he refused to comply with the instructions to clean
the
bathrooms when it was his turn to do so.
[56]
I am able to immediately dispose of the overtime issue. I could find
no evidence on the record that Raboroko in fact agreed
to work
overtime. In terms of Section 10 of the BCEA
[32]
agreement by an employee is required for an employee to be obliged to
work overtime. Without Raboroko thus agreeing to work overtime,
any
instruction to him to work overtime would be unlawful and contrary to
the BCEA
[33]
,
which is a complete defense to any misconduct charge based on
insubordination. As was said in
Maneche
and Others v Commission for Conciliation, Mediation and Arbitration
and Others
[34]
:
‘For the reasons stated above, I am satisfied that the
commissioner committed a material error of law by regarding a basic
condition of employment as a standard capable of being trumped by a
unilaterally imposed workplace rule or practice. …’
The
second respondent, in his award, was very much alive to this issue,
where he recorded that the applicant had to discover Raboroko’s
employment contract in the arbitration in order to establish an
agreement by Raboroko to work overtime. The outcome the second
respondent arrived at in this respect is entirely reasonable, and
thus sustainable. I will accordingly devote no further attention
to
the consideration of this issue, as there is no basis to interfere
with this conclusion of the second respondent.
[57] This then brings me
to the issue of insubordination relating to the cleaning of the
bathrooms. In this regard, the evidence
was actually largely
undisputed, and straight forward. The fact is that due to financial
constraints, the applicant had cancelled
the contract with its
cleaning service provider so as to save some of the costs it needed
to survive. What was then required is
that all the employees each had
a turn to clean the bathrooms, and this included Raboroko. All the
other employees went along and
cleaned the bathroom when it was their
turn to do so. Raboroko however refused, and despite several clear
instructions to do so,
persisted with this refusal. Raboroko in fact
conceded in evidence that he refused and would continue to refuse.
The basic premise
for this refusal was that Raboroko contended
cleaning the bathroom was not his duty.
[58]
The second respondent unfortunately again, in essence, shirked around
the real issue. What the second respondent did was to
find that in
the absence of a job description, Raboroko could not be found to have
been insubordinate when he refused the clean
the bathroom. Such an
approach by the second respondent is a complete failure by him to
come to grips with the true issue he was
called on to determine. Now
it was common cause that Raboroko had been given clear and direct
instructions to clean the bathroom
when it was his turn to do so. It
is equally common cause that he persisted at all times in refusing to
do so. What this possibly
could have to do with a job description
being absent as some or other ground of justification is unclear. The
fact is that the
conduct of Raboroko in this regard, at the very
least on a
prima facie
basis, would be tantamount to
insubordination, as he received a clear instruction which he refused
to obey. The only question that
then remains is simply whether
Raboroko was entitled to so refuse, and to simply refer to and rely
on the absence of a job description,
is far short of an acceptable
determination of this question by the second respondent.
[59]
In
dealing with the concept of insubordination, the Court in
Humphries
and Jewell (Pty) Ltd v Federal Council of Retail and Allied Workers
Union and Others
[35]
held as follows:
‘…
In our
view a disregard by an employee of his employer's authority,
especially in the presence of other employees, amounts to
insubordination
and it cannot be expected that an employer should
tolerate such conduct. The relationship of trust, mutual confidence
and respect
which is the very essence of a master servant
relationship cannot, under these circumstances, continue. In the
absence of
facts showing that this relationship was not detrimentally
affected by the conduct of the employee it is unreasonable to compel
either of the parties to continue with the relationship...’
[60]
The erstwhile Industrial Court considered the issue of
insubordination in the matter of
Commercial
Catering and Allied Workers Union of SA and Another v Wooltru Ltd t/a
Woolworths (Randburg)
[36]
and said the following about what constitutes insubordination: ‘….
insubordination can manifest itself in the refusal
to obey a
reasonable and lawful command or in the challenge (or resistance) to
or defiance of (see especially The Shorter Oxford
English Dictionary
above) the authority of the employer. It is, of course, required that
the insubordination must be deliberate
(wilful) and serious (above).’
In
A
Mauchle (Pty) Ltd t/a Precision Tools v National Union of
Metalworkers of SA and Others
[37]
the Court, in upholding a dismissal for insubordination, held:
‘
The
company had a valid reason for dismissing the applicants:
- an instruction was in
fact given;
- the instruction was
lawful;
- the instruction was
reasonable;
- the refusal to obey the
instruction was serious, deliberate and repeated.’
With specific reference
to the judgment in
Mauchle
,
the Court in
Air
Products (Pty) Ltd v CWIU and Another
[38]
said the following:
‘
I would
respectfully venture to suggest that for the purposes of determining
an unfair labour practice dispute under the old Act
it is unnecessary
to have separate requirements of “lawfulness” and
“reasonableness”, and that it would
suffice simply to ask
whether the instruction was fair. If fair, it is lawful. If unfair,
it is unlawful. Fairness equates to lawfulness
under the old Act.
This approach would also avoid the confusion generated by the
distinction between contractual “lawfulness”
and
statutory “fairness”.’
The instruction to
Raboroko was given and was deliberately refused. All that remains to
be determined is whether the instruction
was lawful and reasonable,
or as the Court said in
Air Products was “fair”,
which
will be next addressed.
[61]
Some
examples of insubordination bear mentioning. In
National
Union of Mineworkers and Others v Black Mountain Mining (Pty) Ltd
[39]
the Court held ‘In respect of charge 5, Vass wilfully absented
himself from the workplace. This conduct made him guilty of
gross
insubordination and insolence.’
In
National
Union of Metalworkers of SA on behalf of Sibiya v Bell Equipment
(Pty) Ltd
[40]
it
was held that an employee
failing
to comply with an employer's instruction to attend disciplinary
hearing involving worker against whom she had preferred
charges of
sexual harassment amounted to insubordination.
In
Arangie
v Abedare Cables
[41]
an
employee
refusing to take alcohol test or to leave employer's premises was
considered to be conduct amounting to insubordination.
In
National
Union of Metalworkers of SA on behalf of Hlekwayo v Bell Equipment Co
SA (Pty) Ltd
[42]
an
employee’s
refusal
to work contractually agreed night shifts unless provided with
transport was found to be insubordinate.
Finally,
in
Ncithingana
v Five Star Service Station
[43]
the
matter concerned a situation where
it
was part of the employee’s duties to have washed the walls, she
knew that it was part of her duties, she was previously
instructed to
clean the walls, and then did not clean the walls, and this was held
to be insubordination. In the context of the
aforesaid examples, it
therefore could quite feasibly be true that a refusal to clean the
bathroom when instructed to do so is
insubordination by Raboroko.
[62] As to the
consequences of insubordination to the employment relationship, the
Court in
Public
Servants Association of SA on behalf of Khan v Tsabadi NO and
Others
[44]
said:
‘
By its very nature
the employment relationship places certain obligations upon the
employee, two aspects of which are the generic
duties of the employee
to maintain a harmonious relationship and to cooperate with her
employer. Brassey notes that the employee's
obligation to ensure a
harmonious relationship with the employer and other staff requires
that she should do nothing to undermine
it. The learned author points
out that employers 'and the managers through whom they enforce their
will, are likewise entitled
to respect' and that failure to
demonstrate this amounts to insubordination which suggests, he says,
that the offence 'consists
in a failure to submit to the employer's
authority'.’
‘
The employment
relationship entails a quid pro quo. In exchange for a salary and
other benefits the employee agrees inter alia to
place her services
at the disposal of the employer and to obey the lawful and reasonable
instructions of the employer on how those
services are utilized. The
employee cannot refuse to obey the lawful instructions of the
employer whilst at the same time drawing
a salary.’
[63] Now one has to
accept that an operator such as Raboroko would not normally be
expected to clean bathrooms as part of his duties.
But does the fact
that he was expected to merely on occasion also clean the bathroom,
as was also required of all his colleagues,
amount to a unilateral
change of his employment conditions or a variation of his job? In my
view, this cannot be the case. Raboroko
remained an operator and
clearly still spent the vast majority of his time doing this very
work. The bathroom cleaning requirement
was not a change in
employment conditions. It was an introduction of a work practice
necessitated by circumstances that were far
from normal, and was very
limited in application. It was apparent that the applicant’s
survival was actually dependent on
cutting out the costs of cleaning
contractors and then instructing all its employees to participate in
taking turns to clean the
bathroom. The instruction therefore has a
particular context, is limited to an ad hoc and limited additional
duty imposed on the
employees. A similar situation came before the
Court in
Motor
Industry Staff Association and Another v Silverton Spraypainters and
Panelbeaters (Pty) Ltd and Others
[45]
.
Similar to the matter
in
casu
,
the employee party in
Silverton
Spraypainters
was instructed to fulfil additional duties not normally contemplated
by his duties as estimator. The Court in
Silverton
Spraypainters
commenced its reasoning by holding as follows:
[46]
‘
It is trite that
an employee is guilty of insubordination if the employee concerned
wilfully refuses to comply with a lawful and
reasonable instruction
issued by the employer. It is also well settled that where the
insubordination was gross, in that it was
persistent, deliberate and
public, a sanction of dismissal would normally be justified. …
The case for Mr Van Jaarsveld
is that he was not guilty of
misconduct, in the first place, because he was entitled to refuse to
obey an unlawful and unreasonable
instruction given to him by the
company, on the basis that the instruction constituted an
impermissible unilateral change to his
terms and conditions of
employment as an estimator.’
In
casu
,
Raboroko raises a similar issue so as to justify this refusal to
clean the bathroom. In dealing with this, in
Silverton
Spraypainters
,
the Court considered the context within which the employee was given
the instruction to fulfil this different duty, and said:
[47]
‘
I am satisfied
that the instruction for Mr Van Jaarsveld physically to go out and
solicit work from assessors and fleet companies
during an
economically threatening period, was simply something that could be
inferred from, or at most, which was ancillary to,
his normal duties.
Put differently, it was simply a variation in his work practice or a
change in the manner his job was to be
performed — a situation
that was occasioned by sound and compelling operational reasons on
the part of the company. …’
It
is my view that the current matter and what Raboroko was instructed
to do was comparative to the above. This was a change in
the manner
in which Raboroko was required to do his job, being that in addition
to his principal duties he would from time to time
and on a shared
basis with all his fellow workmates clean the bathroom, and this was
necessitated by compelling operational reasons.
[64]
The instruction by the applicant to Raboroko to from time to time
clean the bathroom is consequently a reasonable and lawful
instruction. Raboroko persistently refused to obey this instruction
and did so in the presence of other employees. He was not entitled
to
do so, was obliged to comply with the instruction and was
consequently grossly insubordinate. As the Court said in
Silverton
Spraypainters
[48]
,
which in my view is of equal application
in
casu
:
‘
It appears to me …
that the company's instruction was a lawful and reasonable one which
Mr Van Jaarsveld was obliged and
obligated to carry out. His blatant,
persistent and public refusal to comply with this lawful and
reasonable instruction constituted
gross insubordination on his
part. He seriously and inexcusably undermined the authority of
management. In my view, he was correctly
convicted of the misconduct
as charged and his dismissal was, therefore, substantively fair...’
[65] In
Air
Products
[49]
the Court dealt with an instance where the employer sought to
transfer an employee for operational reasons, even though the
employment
contract and employment policies did not specifically
provide a right to employer to effect such a transfer. The employer,
despite
not having a specific contractual right to do so, then gave
the employee an instruction to transfer, which the employee refused
to obey and the employee
was
ultimately given a notification to attend a disciplinary enquiry for
the failure to carry out a lawful instruction. The Court
held:
[50]
“
The transfer of
Mmadi from the cylinder test plant to the hp plant did not constitute
an amendment to Mmadi’s contract of
employment. It was not an
express, implied or tacit term of the contract of employment that he
would work only at the cylinder
test plant. …. The only
difference between the one job and the other was that at the hp plant
he was required to work night
shift every second week, whereas at the
cylinder test plant he was required to work day shift only. His job,
however, did not change.’
The
Court went further, despite so concluding, and said:
[51]
‘
The
transfer of the employee from the cylinder test plant to the HP plant
did amount to a change in working conditions to his potential
prejudice in the sense that he would be required to work night shift
every second week at the HP plant whereas at the cylinder
test plant
he did not have to work night shift at all.
What was required of the
company in those circumstances, as a matter of fairness and sound
industrial relations practice, was to
attempt to persuade [the
employee] to cooperate and to accept the change in working conditions
….’
The above situation is
comparative to the matter
in casu
and the applicant clearly
sought to do what the Court suggested in
Air Products
as the
proper approach. It on several occasions instructed Raborko to clean
the bathroom when it was his turn to do so, and tried
to convince him
to do this. Raboroko persisted with his refusal to comply. It was
clearly understood by all parties why it was
necessary that all
employees needed to participate in the cleaning of the bathroom and
why the instruction needed to be given.
Raboroko chose to ignore this
reason. This left the applicant with no other alternative but to
discipline Raboroko.
[66] The Court in
Silverton
Spraypainters
[52]
also made specific reference, with approval, to the judgment of the
former LAC in
Mauchle
[53]
.
In my view, the judgment in
Mauchle
is equally apposite to the consideration of the current matter, as
the matter in
Mauchle
concerned several employees also employed as machine operators who
were instructed by the employer when the employer received a
special
order that had to be attended to urgently, to operate two machines
instead of the one machine they were normally required
to operate, in
order to dispose of the special order. The employees refused to
comply with the instruction, also on the basis that
in terms of their
contracts they were required to operate only one machine and that the
instruction thus constituted a unilateral
change, by the employer, to
the terms and conditions of their employment contracts. These
employees were then also dismissed for
insubordination. Based on
these facts, the Court in
Mauchle
said:
[54]
‘…
. A
description of the work to be performed as that of "operator"
should not, in my view, "be construed inflexibly
provided that
the fundamental nature of the work to be performed is not altered"
(Wallis
Labour and Employment Law
para 45 at 7-9). I agree
with the view expressed by the learned author at 7-23 n 9 that
employees do not have a vested right to
preserve their working
obligations completely unchanged as from the moment when they
first begin work. It is only if changes
are so dramatic as to amount
to a requirement that the employee undertakes an entirely different
job that there is a right to refuse
to do the job in the required
manner. In
Crewswell v Board of Inland Revenue
(1984) 2 All ER
713
(ChD) at 720b-d Walton J said:
‘
I now turn
straight away to a consideration of the main point on which counsel
for the plaintiff relied. He put his case in this
way, that although
it is undoubtedly correct that an employer may, within limits, change
the manner in which his employees perform
a work which they are
employed to do, there may be such a change in the method of
performing the task which the employee was recruited
to perform
proposed by the employer as to amount to a change in the nature of
the job. This would mean that the employee was being
asked to perform
work under a wholly different contract and this cannot be done
without his consent. ….
It is a very fine line
from counsel's submissions to the submission that employees have
a vested right to preserve working
obligations completely unchanged
as from the moment when they first begin work. This cannot surely, by
any stretch of the imagination,
be correct.’
[67]
The point that must therefore be made,
in
casu
,
is that what the applicant instructed Raboroko to do did not actually
change his job. It did not change his duties as operator
fundamentally. The applicant was entitled to impose the duty on
Raboroko that it did, and Raboroko had no vested right to insist
that
all his working conditions be preserved in a completely unchanged
state throughout his employment. I conclude by referring
to the
following extract from the judgment in
Silverton
Spraypainters
:
[55]
‘
In the present
instance, Mr Van Jaarsveld wilfully, persistently and publicly defied
a lawful and reasonable instruction given to
him by his
employer, Mr Cronje, who was the sole director of the company. On one
of the occasions when Mr Van Jaarsveld defied
the instruction it was
in the presence of Ms Spaans, one of the company employees. It is
trite that mutual trust and respect constitute
a fundamental pillar
in every sustainable employer-employee relationship. In my view,
Mr Van Jaarsveld's unbecoming conduct
completely ruined his
employment relationship with the company, which rendered his
dismissal justified. The misconduct was so serious
that the sanction
of dismissal would, in my view, have been justified.’
The
above
ratio
equally applies to the conduct of Raboroko.
Similarly, and for the very same considerations as set out in
Silverton Spraypainters
, Raboroko earned his dismissal on the
insubordination charge as well.
[68]
I therefore conclude that Raboroko equally committed misconduct in
respect of the insubordination charge, insofar as it concerns
the
instruction given to him to from time to time clean the bathroom.
Once again, any finding to the contrary would be unsustainable
and
simply not a reasonable outcome, and thus reviewable.
Conclusion
[69] The applicant in
argument also referred to the issue of the complete lack of remorse
on the part of Raboroko, which prevailed
even at arbitration, in
substantiation of a determination that his dismissal was justified.
In my view, there is merit in this
argument. It is actually clear
from the record that Raboroko has not shown any remorse of any kind,
nor has he ever acknowledged
any wrongdoing. In fact, a proper
reading of the record paints the picture of Raboroko as a
confrontational and obstructive employee,
blaming everyone else
without doing any introspection as regards his own failures and
conduct. Added to this, and in the arbitration,
Raboroko then even
raised a false defense. In the absence of remorse and acknowledgement
of wrongdoing, rehabilitation of the damaged
employment relationship
is not possible, and as such, dismissal was really the only viable
option.
As
the Court said in
De
Beers
:
[56]
‘
This brings me to
remorse. It would in my view be difficult for an employer to
re-employ an employee who has shown no remorse. Acknowledgment
of
wrong doing is the first step towards rehabilitation. In the absence
of a re-commitment to the employer's workplace values,
an employee
cannot hope to re-establish the trust which he himself has broken.
Where, as in this case, an employee, over and above
having committed
an act of dishonesty, falsely denies having done so, an employer
would, particularly where a high degree of trust
is reposed in an
employee, be legitimately entitled to say to itself that the risk to
continue to employ the offender is unacceptably
great.’
[70] I
also consider what the Court said in
Greater
Letaba Local Municipality v Mankgabe NO and Others
[57]
on the issue of remorse, where it was held: ‘In the instant
case I am of the view that the employee's remorseless attitude
did
the employment relationship untold harm. Over and above the gravity
of the misconduct, coupled with the magnitude of the employer's
loss,
the employee still falsely persisted on oath in his answering
affidavit that he had done no wrong. …. His repeated
but false
denial speaks volumes. The employer was understandably anxious and
apprehensive that there was a great risk, that given
another chance,
the remorseless employee who did not acknowledge the wrong he had
done, would do it again and that he would remain
a great risk to
retain as a member of the workforce … .’
I
further find the analogy used in
Independent
Newspapers (Pty) Ltd v Media Workers Union of SA on behalf of McKay
and Others,
[58]
particularly appealing, where the Court said: ‘The analogy of a
marriage, used by Mr
Van
Zyl
, is
perhaps a useful one. It is not unheard of for one partner in a
marriage relationship who has been cuckolded to give the other
partner a second chance, as it were, in the face of true remorse and
a true effort to rebuild the trust relationship.’ Using
this
analogy, Raboroko did none of these, he made no attempt to rebuild
the trust relationship, and instead persisted with a course
of action
of even falsely denying any wrongdoing.
[71] For the sake of
complete picture on this issue, I also refer to
National
Commissioner of Police and Another v Harri NO and Others,
[59]
where the Court held: ‘Instead of coming clean, Lamastra
advanced a manifestly dishonest defence at the disciplinary enquiry.
It is true that he had long service and that the chairperson took
this into account as a mitigating factor. However, as the Labour
Appeal Court pointed out in
De
Beers Consolidated
Mines
Ltd v CCMA and Others
,
long service is not necessarily a guarantee against dismissal. As
Conradie JA said, 'the risk factor is paramount. If, despite
the
prima facie impression of reliability arising from long service, it
appears that in all the circumstances, particularly the
required
degree of trust and employee's lack of commitment to reform,
continued employment of the offender will be operationally
too risky,
he will be dismissed'. He also noted that long service does not
lessen the gravity of the misconduct or serve to avoid
the
appropriate sanction for it.’
[72] This kind of conduct
of persistently pursuing a false defense in fact constitutes an act
of dishonesty on the part of Raboroko
in itself. In
City
of Cape Town v SA Local Government Bargaining Council and Others
(2)
[60]
the Court, in referring to the conduct of an employee in showing no
remorse and persisting with a false defense, said that:
‘
Her
actions should further be viewed against the fact that the respondent
occupied a position in the workplace which requires her
to be honest.
The question which needs to be answered is whether or not her conduct
impacted on her employment relationship in
such a way
that
her actions resulted in the breakdown of the trust relationship
between her and her employer. Trust is considered to be an
important
element of the employment relationship whether or not the employee is
employed in private business or within the public
sector…’
The
Court in
City
of Cape Town
then concluded that:
[61]
‘…
.The fact
that an employee shows remorse for his or her actions and takes
responsibility for his or her actions may militate, depending
on the
circumstances, against imposing the sanction of dismissal. The
converse also applies, dismissal may be an appropriate sanction
where
the employee commits an act of dishonesty, falsely denies having done
so and then shows no remorse whatsoever for having
done so… It
is also important to point out that the respondent had persisted with
her lying not only in the course of the
investigations but also at
her disciplinary hearing and in her sworn testimony before the
arbitrator...’
[73] Finally, and as to
Raboroko trying to shift blame to everyone else, I refer to what the
Court said in
Mutual
Construction Co Tvl (Pty) Ltd v Ntombela NO and Others
[62]
:
‘
It was also
significant that the third respondent elected not to own up to his
misdemeanour. In other words, he showed a complete
lack of remorse or
contrition for what he did. Instead, he attempted to shift the blame
to the site manager whom the third respondent
apparently induced to
signing the falsified timesheet...’
In the end, in this
regard, I conclude with the following apposite
dictum
in
Timothy
v Nampak Corrugated Containers (Pty) Ltd
[63]
where the Court said:
‘…
.
Throughout the disciplinary hearing and the hearing before third
respondent appellant continued to take the view that the allegations
brought against him were no more than lies. Appellant showed no
remorse, no recognition of misconduct, save for a blatant and clearly
dishonest denial. .… In other words, in a case such as the
present, where there is an egregious act of dishonesty, and I
use
that word advisably because, as I have already indicated, appellant's
conduct throughout this dispute constituted a perpetuation
of the
dishonesty, by way of a denial, conversely a complete lack of
acknowledgment of any wrongdoing, there is a formidable obstacle
in
the way of the implementation of a progressive sanction. …’
[74] Therefore, applying
the above legal principles to the facts of this matter, Raboroko thus
showed no remorse or acknowledgment
of wrongdoing as would be
required to enable the applicant to bring Raboroko back into the fold
of the employment relationship.
The situation is exacerbated by what
is tantamount to an act of dishonesty in that Raboroko persists with
a false defense and denial
of any wrongdoing even to the point of the
arbitration. In my view, Raboroko certainly earned his dismissal.
[75]
Therefore, and having regard to what I have set out above with regard
to the merits of the applicant’s review application,
and based
on the application of the review test as I have also set out above,
the first step in the review enquiry in this matter
must be answered
to the effect that the second respondent committed material
irregularities relating to his conclusions in respect
of the gross
negligence change, and in respect of the insubordination charge where
it came to the cleaning of the bathroom. I am
then further of the
view that without the existence of these irregularities, the outcome
arrived at by the second respondent simply
cannot be a reasonable
outcome. I am satisfied that the second respondent failed to consider
and determine material parts of the
evidence, completely failed to
determine what constituted the evidence properly before him on which
he should have based his determination,
and simply did not properly
and rationally construe and apply the relevant legal principles. The
second respondent certainly never
dealt with the substantial merits
of the dispute and the issues he was actually called on to determine.
The award of the second
respondent thus constitutes a reviewable
irregularity and thus falls to be reviewed and set aside.
[76]
It is thus my conclusion that the applicant was entitled to dismiss
the individual third respondent (J Raboroko), and such
dismissal was
substantively fair. The second respondent’s conclusion to the
contrary cannot be sustained, constitutes a reviewable
irregularity,
and falls to be reviewed and set aside.
[77]
I have sufficient evidentiary material before me to finally determine
this matter, and I do not consider it necessary to refer
the matter
back to the CCMA. I therefore shall substitute the award of the
second respondent with an award that the dismissal of
the individual
third respondent (J Raboroko) by the applicant was substantively
fair.
[78]
As the matter is unopposed, I do not consider any costs award in
favour of the applicant to be a consideration.
[79]
In the premises, I make the following order:
79.1
The applicant’s review application is granted.
79.2
The arbitration award of the second respondent, being commissioner D
K Nkadimeng dated 17 June 2012 in the
arbitration proceedings between
the applicant and the third respondent, under case number LP 6803 –
11, is reviewed and set
aside.
79.3
The arbitration award of the second respondent, being commissioner D
K Nkadimeng dated 17 June 2012 in the
arbitration proceedings between
the applicant and the third respondent, under case number LP 6803 –
11, is substituted and
replaced with an award that the dismissal of
the individual third respondent (J Raboroko) by the applicant was
substantively fair.
79.4
There is no order as to costs.
____________________
Snyman AJ
Acting Judge of the
Labour Court of South Africa
APPEARANCES:
For the
Applicant:
Advocate D W de Villiers
Instructed
by:
Thomas & Swanepoel Inc
For
the Third Respondent:
None
[1]
No 66 of 1995.
[2]
(2007)
28 ILJ 2405 (CC).
[3]
Id
at para 110.
[4]
(2008)
29
ILJ
2461
(CC)
at para 134.
[5]
(2008)
29 ILJ 964 (LAC).
[6]
Id
at para 102.
[7]
2013 (6) SA 224
(SCA)
per
Cachalia and Wallis JJA.
[8]
Id
at para 25.
[9]
(JA
2/2012)
[2013] ZALAC 28
(4 November 2013)
(4
November 2013) not yet reported, per Wag
lay
JP.
[10]
Id
at para 14.
[11]
Id
at para 16.
[12]
(2011) 32 ILJ 723 (LC) at para 9.
[13]
(2011) 32 ILJ 1705 (LC) at para 16.
[14]
Id
at para 23.
[15]
(2010)
31
ILJ
452 (LC)
at para 20.
[16]
(
supra
)
footnote 12.
[17]
Id
at para 7.
[18]
Id
at para 9 and 13.
[19]
2003 (1) SA 11
(SCA) at para 5.
[20]
Id at para 23.
[21]
(2010)
31 ILJ 1460
(LC) at para 6.
[22]
Gold
Fields Mining
above
n 9 at para 20 – 21.
[23]
See
ABSA
Brokers (Pty) Ltd v G N Moshoana N.O. and Others
(2005) 26 ILJ 1652 (LAC) at para 39 where the Court said: ‘It
is an essential part of the administration of justice that
a
cross-examiner must put as much of his case to a witness as concerns
that witness …. He has not only a right to cross-examination
but, indeed, also a responsibility to cross examine a witness if it
is intended to argue later that the evidence of the witness
should
be rejected. The witness’ attention must first be drawn to a
particular point on the basis of which it is intended
to suggest
that he is not speaking the truth and thereafter be afforded an
opportunity of providing an explanation … A
failure to
cross-examine may, in general, imply an acceptance of the witness’
testimony…’;See also
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
(2010) 31 ILJ 452 (LC) footnote 13;
Masilela
v Leonard Dingler (Pty) Ltd
(2004) 25 ILJ 544 (LC).
[24]
See
Aluminium
City (Pty) Ltd v Metal and Engineering Industries Bargaining Council
and Others
(2006)
27 ILJ 2567 (LC).
[25]
2003
(2) SA 473
(SCA) at para 7.
[26]
(2002) 23 ILJ 1413 (LC) at para 14.
[27]
(1999)
20 ILJ 578 (LAC)
at
para 35.
[28]
See
also
Universal
Product Network (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
(2004) 25 ILJ 1496 (LC) at para 35 – 38.
[29]
(2010)
31 ILJ 2475 (LC) at para 23.
[30]
(2000) 21 ILJ 1051 (LAC) at para 22.
[31]
Id
at para 25.
[32]
Basic
Conditions of Employment Act 75 of 1997
.
[33]
See
for example
Coca-Cola
Bottling East London v Commission for Conciliation, Mediation and
Arbitration and Others
(2003) 24 ILJ 823 (LC) at para 52;
Ford
Motor Co of SA (Pty) Ltd v National Union of Metalworkers of SA and
Others
(2008) 29 ILJ 667 (LC) at para 13.
[34]
(2007) 28 ILJ 2594 (LC) at para 16.
[35]
(1991) 12 ILJ 1032 (LAC) at 1037F-H.
[36]
(1989) 10 ILJ 311 (IC).
[37]
(1995) 16 ILJ 349 (LAC) at 359E-F.
[38]
[1998] 1 BLLR 1
(LAC) at page 15
[39]
(2010) 31 ILJ 387 (LC).
[40]
(2009) 30 ILJ 2204 (BCA).
[41]
(2007) 28 ILJ 249 (CCMA).
[42]
(2007) 28 ILJ 1632 (BCA).
[43]
(2007) 28 ILJ 2121 (BCA).
[44]
(2012) 33 ILJ 2117 (LC)
at
paras 116 and 121.
[45]
(2013) 34 ILJ 1440 (LAC).
[46]
Id at para 31.
[47]
Id
at para 39.
[48]
Id
at para 43.
[49]
(
supra
)
footnote 38
[50]
Id
at page 5
[51]
Id
at page 6
[52]
Id
at para 37.
[53]
(
supra
)
footnote 37
.
[54]
Id
at
357F-358B
.
[55]
Id
at para 47.
[56]
Id at para 25.
[57]
(2008) 29 ILJ 1167 (LC) at para 34.
[58]
(2013) 34 ILJ 143 (LC) at 146.
[59]
(2011) 32 ILJ 1175 (LC) at para 50.
[60]
(2011) 32 ILJ 1333 (LC) at paras 21 – 22.
[61]
Id
at paras 29 – 30.
[62]
(2010) 31 ILJ 901 (LAC) at para 37.
[63]
(2010) 31 ILJ 1844 (LAC) at 1849F-1850B.