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[2014] ZALCJHB 114
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Windscreen Distributors (Pty) Ltd v Motor Industry Bargaining Council (Dispute Resolution Centre) and Others (JR1767/2012) [2014] ZALCJHB 114 (4 March 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR 1767 /
2012
In the matter between:
WINDSCREEN
DISTRIBUTORS (PTY)
LTD Applicant
and
MOTOR INDUSTRY
BARGAINING COUNCIL
(DISPUTE RESOLUTION
CENTRE) First
Respondent
THANDIWE TSHAYANA N.O.
Second
Respondent
PETRO
EKERMANS Third
Respondent
Heard:
16 August 2013
Delivered:
04 March 2014
Summary:
Bargaining Council arbitration proceedings –
Review of proceedings, decisions and awards of arbitrators –
Test for review
– Section 145 of LRA 1995 – Whether
outcome arrived at by the arbitrator reasonable –
determinations of arbitrator
compared with evidence on record –
arbitrator’s award or unfair dismissal sustainable and upheld
Disciplinary
proceedings – plea of guilty – consequence of guilty plea
– employer to prove existence of guilty
plea – employer
failed to prove such plea
Misconduct –
defence to misconduct of provocation – requirements of
provocation – provocation shown to exist –
determination
of arbitrator upheld
Insubordination –
splitting of charges – dismissal not justified – employer
principal cause of altercation –
award of arbitrator upheld
Unfair dismissal –
issue of relief – award of compensation justified –
compensation award upheld
JUDGMENT
SNYMAN, AJ
Introduction
[1]
This matter concerns an application by the applicant to review and
set aside an arbitration award of the second respondent in
her
capacity as arbitrator of the Motor Industry Bargaining Council (the
first respondent). This application has been brought in
terms of
Section 145 as read with Section 158(1) (g) of the Labour Relations
Act
[1]
(“the
LRA”).
[2]
The third respondent was dismissed by the applicant on 22 December
2011, based on three charges relating to the third respondent
being
grossly insubordinate / insolent, and behaving in a threatening
manner. The third respondent pursued her dispute as an unfair
dismissal to the first respondent, and the matter came before the
second respondent for arbitration on 29 May 2012. In an award
dated 8
June 2012, the second respondent determined that the dismissal of the
third respondent by the applicant was substantively
unfair, and
directed that the applicant had to compensate the third respondent in
an amount equivalent to three months’ salary
(following a
variation award issued on 5 August 2012). It is these determinations
by the second respondent that forms the subject
matter of the review
application brought by the applicant.
Background facts
[3]
The third respondent commenced employment at the applicant’s
Boksburg branch on 23 March 2011, initially on a three month
fixed
term contract and thereafter in a permanent capacity. The third
respondent was an accounts supervisor at the Boksburg branch
of the
applicant at the time this dispute arose, but appeared to have been a
bookkeeper before that.
[4]
The applicant experienced difficulties with the group accountant
employed at the Boksburg branch in September 2011 in that,
that
accountant simply could not cope with the workload at the branch and
had no assistance. The applicant then envisaged to utilise
the third
respondent as assistant to the group accountant. According to the
applicant, it gave this a trial so to speak, but unfortunately;
found
that the third respondent did not have the knowledge and experience
to fulfil this task. The applicant then retained the
services of a
qualified bookkeeper to assist the group accountant, albeit on a
temporary basis.
[5]
According to the applicant, and after this external bookkeeper
started working with the group accountant, it quickly became
apparent
that there were material difficulties with the applicant’s
accounting structures and processes. Once these difficulties
had been
rectified, it then became apparent that the applicant actually did
not require the position of accounts supervisor, in
addition to a
bookkeeper. To put it simply, and with the proper financial /
accounting systems and practices in place, the applicant’s
contention was that all the functions fulfilled by the third
respondent was no longer needed, and could be done by the accountant
and bookkeeper.
[6]
The third respondent, on the other hand, had a different version of
events. According to the third respondent, this bookkeeper,
Manet Van
Rensburg (“Van Rensburg”) was a temporary employee who in
fact simply took over her position. The third respondent
stated that
she was “floating around”, so to speak, after Van
Rensburg took over her position, and in fact saw no reason
why she
(the third respondent) could not go back to this position as Van
Rensburg was simply a temporary employee.
[7]
The applicant stated that as a result of its decision to make the
above operational and structural changes, the applicant then
contemplated the possible retrenchment of the third respondent. This
being contemplated, the acting branch manager of the Boksburg
branch,
Anton Botha (“Botha”) then convened a meeting with the
third respondent to inform her of this and of the fact
that the
applicant intended to embark upon a restructuring process as a result
of the possible redundancy of her position. This
meeting took place
on 12 December 2011. Botha told the third respondent that the
applicant would implement a retrenchment process,
but should the
third respondent prefer, there was the option of voluntary
retrenchment. Again, the third respondent had a different
version of
the events on 12 December 2011 and contended that Botha gave her the
option to resign or face a retrenchment process
and it was clear the
applicant had already decided she must go.
[8]
What is common cause is that the third respondent was not happy with
the events on 12 December 2011, and stated that she would
not resign
and that she would equally not accept any retrenchment processes. The
applicant stated that this left it with no alternative
but to
commence a restructuring process and on 13 December 2011, the third
respondent was called to a further meeting and presented
with a
notice of intention to restructure. According to the applicant, and
in this meeting of 13 December 2011, the notice was
also explained to
the third respondent.
[9]
The third respondent’s version of the events of this meeting is
that she was presented with the notice of intention to
retrench as
well as a voluntary retrenchment agreement. The third respondent
stated that she was told to sign the voluntary retrenchment
agreement, which she refused to do. She was then told by Botha that
she was retrenched and that he wanted her to leave immediately.
According to the contentions of the applicant, the third respondent
actually asked what her package would be and she was informed
one
weeks’ salary per year of service, but the third respondent
scoffed at this proposition and asked when she could leave
and it was
explained that she could leave immediately if she wanted, but a
further consultation needed to be held with her. According
to the
applicant, the third respondent stated that she actually wanted to
leave immediately and that the applicant would hear from
the CCMA.
Thus, there existed two conflicting versions that in my view lay at
the heart of this matter, the one being that the
third respondent was
retrenched with immediate effect and told to leave immediately
because she refused to sign the voluntary retrenchment
agreement, and
the other version that it was actually the third respondent that
asked to leave immediately despite the still pending
retrenchment
process.
[10]
It was common cause that the third respondent left the meeting on 13
December 2011 upset and went to her office to collect
her things and
conclude her affairs. It was equally common cause that a fellow
employee, Brent Henderson (“Henderson”),
was asked by
Botha to accompany her to her office to ensure that the third
respondent did not out of spite delete information from
the
applicant’s accounting system.
[11]
The third respondent did not immediately leave her office and
according to her version, was still deleting personal information
on
her computer when Botha came to her and confronted her about why she
had not already left. The third respondent stated that
she was
finishing off and Botha stated that how long it could take to just
clear out an office. The third respondent stated that
Botha swore at
her and as she was already upset from the earlier events and what he
was doing to her now she reacted by swearing
at him to leave her
office. According to the version of the applicant, all Botha did was
to go to the third respondent’s
office and ask when she was
leaving when he found her still working on her computer and it was
the third respondent who then swore
at Botha telling him to leave her
office. The applicant also contended that third respondent also told
Botha that her husband would
come and assault him but the third
respondent disputed she ever did such a thing. According to the
applicant, the third respondent
then refused to leave the premises
when Botha instructed her and Botha was then compelled to instruct
security to remove her from
the premises. Once again, therefore,
there were two irreconcilable versions as to the events in the third
respondent’s office
on 13 December 2011.
[12]
Following the above events, the third respondent on 13 December 2011,
was charged with three charges. These charges were:
‘
1
)
Gross insolence in that you on the 13
th
day of December 2011 spoke in a rude, aggressive and unbecoming
manner to your manager;
2) Gross misconduct
and/or verbal assault in that on the 13
th
day of December
2011 you verbally threatened your manager;
3) Gross insubordination
in that on the 13
th
day of December 2011 you have refused
a direct and lawful instruction to leave the premises due to your
threatening behaviour.’
[13]
The disciplinary hearing was convened for 19 December 2011. The
chairperson of the disciplinary hearing was an official of
the South
African United Employers Organization. According to the applicant,
the third respondent actually pleaded guilty to the
first charge
against her, and pleaded not guilty to the second and third charges.
The third respondent contended that she never
pleaded guilty but what
she had done was to admit that she was rude and disrespectful towards
Botha but specifically raised she
was provoked in doing this. The
chairperson however entered a guilty plea on this first charge and
also found the third respondent
guilty of the second and third
charges. The chairperson then considered the issue of an appropriate
sanction, and recommended that
the third respondent be summarily
dismissed. The chairperson prepared a written finding, which was
handed to the third respondent
on 22 December 2011. The third
respondent was then dismissed.
[14]
The third respondent then pursued her dismissal to the first
respondent as an unfair dismissal and this dispute ultimately
came
before the second respondent, who made the finding in favour of the
third respondent referred to above. Initially, the award
of the
second respondent recorded six months’ salary as compensation
in the sum of R60 000.00 but this was later varied by
the second
respondent in terms of Section 144 of the LRA to three months’
salary which actually is the correct determination
considering the
third respondent’s salary of R20 000.00 per month.
[15]
This matter will be determined against the above background.
The
relevant test for review
[16]
In the judgment of
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[2]
Navsa
AJ held that in light of the constitutional requirement (in s 33 (1)
of the Constitution) 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 Court set the threshold test for the reasonableness of an award
or ruling as: ‘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]
What the Constitutional Court meant in
Sidumo
and
Tao Ying
Metal Industries
was a review test based on a comparison by a
review court of the totality of the evidence that was before the
arbitrator as well
as the issues that the arbitrator was required to
determine, to the outcome the arbitrator arrived at, in order to
ascertain if
the outcome the arbitrator came to was reasonable.
[18]
In
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others,
[5]
the
LAC dealt with this review test and said:
‘
The
Constitutional Court has decided in
Sidumo
that the grounds of review set out in s 145 of the Act are suffused
by reasonableness because a CCMA arbitration award, as an
administrative action, is required by the Constitution to be lawful,
reasonable and procedurally fair. The court further held that
such an
award must be reasonable and if it is not reasonable, it can be
reviewed and set aside.’
[19]
The Court in
Fidelity
Cash Management Service
also described what the
Sidumo
review
test envisaged, where the Court 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.
’
The
Court in
Fidelity
Cash Management Service
concluded:
[7]
‘…
Whether
or not an arbitration award or decision or finding of a CCMA
commissioner is reasonable must be determined objectively with
due
regard to all H the evidence that was before the commissioner and
what the issues were that were before him or her. There is
no reason
why an arbitration award or a finding or decision that, viewed
objectively, is reasonable should be held to be unreasonable
and set
aside simply because the commissioner failed to identify good reasons
that existed which could demonstrate the reasonableness
of the
decision or finding or arbitration award.
’
[20]
Two very recent considerations of the
Sidumo
test
bears reference. The SCA in
Herholdt
v Nedbank Ltd and Another
[8]
concluded
as follows:
[9]
‘
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
this judgment means is simply that if the arbitrator ignored material
evidence, and the review court in considering this material
evidence
so ignored together with the case as a whole, believes that the
arbitration award outcome cannot still be reasonably sustained
on any
basis, then the award would be reviewable.
[21]
The LAC in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[10]
applied
the
Sidumo
test
as follows:
[11]
‘
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 further said:
[12]
‘…
.
What is required is first to consider the gross irregularity that the
arbitrator is said to have committed and then to apply the
reasonableness test established by
Sidumo
.
The gross irregularity is not a self-standing ground insulated from
or standing independent of the
Sidumo
test.…
’
And
concluded:
[13]
‘
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.
’
[22]
The above simply postulates a two tier review test. The first step in
a review enquiry is to consider or determine if an irregularity
indeed existed in the arbitration award or the arbitration
proceedings. 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
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. Once an irregularity is found to exist, it must be
determined if the irregularity is material meaning that the
irregularity must be a material departure from the acceptable norm or
a material deviation from the actual evidence before him
or a
material departure from the proper principles of law or a material
failure to consider and determine the evidence or case.
This approach
of also requiring materiality of the irregularity takes care of the
imperative that not every possible individual
irregularity that may
exist would be contemplated by the review test as the review test
requires the irregularity in the first
place to be ‘gross’.
[14]
If
the review court should find that no material irregularity exists in
the first instance, the matter is at an end, no further
determinations needs to be made, and the review must fail.
[23]
Should the review court however conclude that a material irregularity
indeed exists, the second step in the review test then
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?
The review
court, in essence, 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 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 for a review
to succeed.
[24]
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
award of the second respondent
[25]
The second respondent firstly recorded that the third respondent
disputed all the charges against her.
[26]
The second respondent found that the third respondent was issued with
a ‘retrenchment separation letter’ which
she refused to
sign. The second respondent further found that Botha told the third
respondent to leave the premises immediately
when she refused to sign
this letter, and asked other employees to ensure that she did not
delete anything from the computer.
[27]
The second respondent recorded that the third respondent’s
version of the material events was not disputed. This version
was
that she was upset at being retrenched and Botha came to her office
and asked her when does she think she was going to leave
and Botha
then swore at her. The third respondent being upset and in response
then swore at Botha. The third respondent never threatened
Botha with
her husband. The second respondent then accepted this version of the
third respondent.
[28]
The second respondent stated that one must be mindful of the fact
that “emotions were high”. The second respondent
recorded
that the reason for this is that the third respondent was given the
option to resign or be retrenched, and she was then
upset about her
forced retrenchment. When Botha then first swore at her, the third
respondent could not be blamed for how she reacted.
In essence, the
second respondent accepted that the third respondent was provoked.
[29]
The second respondent concluded by finding that the applicant did not
want the third respondent any more. The second respondent
found that
the third respondent’s position was taken over by someone else
and she was given the option of resignation or
being retrenched, and
that her dismissal as a result was a “smokescreen” for
covering up these unlawful actions of
the applicant. The second
respondent also found that the applicant had taken advice about the
retrenchment of the third respondent
and after being advised of its
wrongdoing then fabricated the charges to cover up its conduct.
[30]
The second respondent concluded that the third respondent’s
dismissal was substantively unfair. The second respondent
ultimately
found that three months’ salary (after the variation) for this
substantively unfair dismissal was “just
and equitable”.
The
review grounds of the applicant
[31]
The applicant submitted that the second respondent committed several
reviewable irregularities in her determination, consideration
and
application of the evidence of the applicant’s witnesses. In
this regard, the applicant raised the following issues which
according to the applicant, was entirely ignored and negated by the
second respondent: (1) the applicant in fact did dispute the
version
that it was Botha who swore first, and in fact led evidence that
Botha never swore; (2) The applicant led corroborated
testimony that
the third respondent threatened Botha with her husband; (3) the
undisputed evidence in the arbitration was that
the third respondent
actually pleaded guilty to the first charge in the disciplinary
hearing; (4) There was never any evidence
that the third respondent
was retrenched, and the actual evidence was the institution of a
retrenchment process; (5) The undisputed
evidence was that the third
respondent was simply offered the option of a voluntary retrenchment
package, which was her right to
refuse and which she did; (6) The
retrenchment process was still ongoing; (7) The third respondent was
in fact the one who behaved
unacceptably in the first consultation
meeting on 13 December 2011 and wanted to leave immediately; (8) The
applicant was compelled
to charge the third respondent for her
behaviour; and (9) there was no evidence to the effect that the third
respondent was asked
to leave the premises because she refused to
sign the retrenchment letter. The applicant contended that if all
these issues were
considered by the second respondent, she could not
have reasonably come to the conclusion that she did.
[32]
The applicant also contended that the second respondent exceeded the
bounds of her authority by enquiring into the retrenchment
process
when she was not called on to do so. According to the applicant, the
second respondent in fact decided on the fairness
of the retrenchment
process, when this was not in issue, and that the second respondent’s
decision was materially influenced
by her views on the retrenchment.
[33]
Added to this, the applicant contended that if the second respondent
alerted it to the fact that she would consider if the
retrenchment
was genuine and proper, the applicant could and would have presented
evidence about this and called witnesses. The
crux of the case of the
applicant in this respect is that the second respondent deprived it
of a fair hearing.
[34]
It was further submitted by the applicant that the undisputed
evidence was that the only document Botha actually gave the third
respondent was the notice of intention to restructure and was never
given an actual notice of retrenchment, but despite this, the
second
respondent found that the third respondent was given a retrenchment
letter which was a material irregularity.
[35]
The applicant also took issue with the second respondent’s
determination as to how the third respondent came to leave
the
premises. The applicant expressed the view that the second respondent
materially misconstrued the evidence in this regard.
The evidence was
that already on 12 December 2011, the issue of the voluntary
separation package was discussed with the third respondent
and she
already said she was not interested. This means that the refusal to
sign the separation agreement could not have been the
reason for the
third respondent immediately leaving on 13 December 2011. The meeting
on 13 December 2011 was to present the letter
of intention to
restructure and a first consultation.
[36]
The second respondent, according to the applicant, had particular
consideration of the fact that Botha was not called as a
witness.
The applicant took issue with this on the basis that the second
respondent ignored that Botha was not necessary
as other witnesses
presented direct evidence in this regard and it was explained that
Botha was no longer employed by the applicant.
[37]
As a general proposition, the applicant also takes issue with the
second respondent’s assessment and determination of
the
probabilities, and the credibility findings that she made.
[38]
The applicant finally submitted that the second respondent in
awarding compensation simply awarded six months’ remuneration
without proper reason or motivation, and that such award of six
months’ remuneration was a reviewable irregularity.
Merits
of the review: substantive fairness
[39]
In terms of the review test as articulated above, I will first
consider whether any material irregularities exist in the award
and
reasoning of the second respondent. I do not intend to deal with each
and every individual review ground raised by the applicant
as set out
above as all these individual review grounds can be dealt with under
the broader categories specifically discussed in
this judgment.
Unfortunately for the applicant, however, a proper consideration of
all the material evidence on record and the
comparison thereof to the
award of the second respondent reveals that there is very little
merit in any of the grounds of review
raised by the applicant.
[40]
I intend to immediately dispose of the third charge of
insubordination. There was no evidence of any instruction being
issued
to the third respondent which she disobeyed. The common cause
evidence was in fact that the third respondent went to pack up her
belongings and delete her personal content on her computer as part
and parcel of leaving the premises as required by the applicant
from
her. The problem Botha had with her was not that she was refusing to
leave, but that she was not leaving fast enough. This
is not
insubordination. In terms of the applicant’s own version in the
arbitration, Botha required that the third respondent
be escorted
from the premises not because she refused to leave, but because the
third respondent threatened Botha with her husband.
Again, this has
nothing to do with insubordination. None of the witnesses of the
applicant said anything about the third respondent
refusing to leave
when told to do so and Botha did not testify. There is accordingly no
substance whatsoever in this charge, and
it remained completely
unproven. It simply does not require further consideration. In any
event, as will be discussed below, it
is my view that the applicant’s
case was principally based on the actual conduct of the third
respondent on 13 December 2011,
firstly during the meeting on that
date and the following events after that as manifested in the first
and second charges.
[41]
The second respondent commenced her reasoning by finding that the
third respondent disputed all the charges against her. As
stated
above, the applicant takes issue with this based on the contention
that the third respondent pleaded guilty to the first
charge. Now it
is true that if the third respondent indeed pleaded guilty to this
charge, the second respondent would have to accept
that the
misconduct in this regard was not disputed by the third respondent
and the only issue that would need determination was
the appropriate
sanction for such misconduct. It would have been a material
irregularity for the second respondent to have simply
ignored and
negated such a guilty plea. In
SA
Fibre Yarn Rugs Ltd v Commission for Conciliation, Mediation and
Arbitration and Others,
[15]
it was held as follows:
‘
As
I have already mentioned, since the employee had pleaded guilty to
the charge of unjustifiable absence, the real issue that the
commissioner was required to decide was whether the sanction of
dismissal was fair in the circumstances. ….’
And
in
Clinix
Private Hospital Soweto (Pty) Ltd v Ralefeta No and Others
[16]
,
the Court said:
‘
It
is very significant that the third respondent had pleaded guilty to
insolence and insubordination at the disciplinary hearing
whereas she
denied guilt at the arbitration hearing. The arbitrator clearly did
not apply his mind to this clear indication that
the third
respondent's version was probably false.’
[42]
The crisp issue then is, in order for the applicant to establish the
existence of such a material irregularity on the part
of the second
respondent in the arbitration proceeding, whether the third
respondent in fact and actually pleaded guilty to this
first charge.
Considering the implications of a guilty plea to the applicant’s
own case and considering that the applicant
had the duty to prove
that the third respondent’s dismissal was fair, it was
imperative for the applicant to have at least
established a
prima
facie
case that the third respondent indeed pleaded guilty. The
record, unfortunately for the applicant, shows that it dismally
failed
in this regard. The issue of the guilty plea arose at the very
start of the arbitration proceedings. The third respondent in her
opening address stated that she disputed all three charges. The
applicant’s representative then enquired about the third
respondent having pleaded guilty to the first charge in the
disciplinary hearing. The third respondent answered that she never
pleaded guilty. The third respondent explained her statement in this
regard by saying “I didn’t plead guilty I have
said I am
guilty but I am not guilty because I was provoked …” The
applicant was thus clearly alerted to what the
issue was, and what it
had to show and was in fact warned by the second respondent to lead
evidence in this regard. Instead, the
applicant led no evidence about
the guilty plea. The chairperson was not called to substantiate his
recording of a guilty plea
and on what basis it was done. The one and
only piece of evidence the applicant had to substantiate a guilty
plea was that which
was recorded in the disciplinary hearing finding,
which remained unsubstantiated in evidence. Opposed to this was the
direct testimony
by the third respondent that she never pleaded
guilty.
[43]
Based on the above, I am quite satisfied that the second respondent
was indeed correct in recording that the third respondent
disputed
all the charges against her. The applicant simply did not establish
the existence of a guilty plea. The second respondent
was thus
entitled to enquire into the merits of the first charge, and I can
find no irregularity in the second respondent then
properly doing so,
as will be addressed hereunder.
[44]
The next issue to consider is the two conflicting versions of the
applicant and the third respondent as far as it concerns
the events
in the meeting on 13 December 2011 and in the third respondent’s
office later on the same day. It must be remembered
that the second
respondent found that the version of the third respondent was
undisputed and that is why she accepted the third
respondent’s
version. The first question then is whether the record in fact
substantiated this conclusion, because if it
does not, a material
irregularity may well be found to exist.
[45]
The first issue to consider in this regard is the fact that Botha was
not called as a witness. The second respondent was very
much alive to
this difficulty and this is one of the grounds of review raised by
the applicant. The fact is that only Botha could
testify as to the
events in the meeting on 13 December 2011. None of the applicant’s
witnesses actually called could shed
any light on these events in
this meeting and, in particular, could not contradict the third
respondent’s contention that
Botha told her in that meeting to
leave immediately when she refused to sign the voluntary retrenchment
agreement. The applicant
contends it explained that Botha could not
be called because he was no longer working for the applicant, and the
record shows that
this was indeed said. However, this explanation as
it stands is in any event an abysmal explanation. If the applicant
wanted its
failure to call Botha not to be held against it, it needed
to do a whole lot more. It would have to explain that it was unable
to ascertain the whereabouts of Botha and explained the efforts it
actually took to do so. Or, and if it knew the whereabouts of
Botha,
it would have had to explain why Botha was unable to testify and why
a subpoena could not serve to secure his presence at
the
arbitration.
[46]
I am left with the distinct impression that the applicant did not
want to call Botha because he may not have substantiated
the
applicant’s version of events. This being the case, the failure
to call Botha as a witness must weigh heavily against
the applicant,
as the second respondent properly and justifiably considered, and
determined. In
ABSA
Investment Management Services (Pty) Ltd v Crowhurst,
[17]
it
was said:
‘
....
it is long established that the failure of a party to call an
available witness may found an adverse inference, the inference
being
that the witness will not support - and may even damage - that
party's case. Compare Zeffertt et al SA Law of Evidence (5
ed) at
128-30.
’
In
General
Food Industries Ltd v Food and Allied Workers Union,
[18]
the
following was said, which in my view can equally be applied in the
current matter: ‘In my view, if the respondent wanted
to
challenge the appellant's version of what transpired at certain
meetings and union officials or shop stewards were present at
such
meetings, it should have adduced their evidence...’. The Court
in
Simelane
and Others v Letamo Estate,
[19]
adopted
a similar approach and said:
‘
Failure
to produce a witness who is available and who is clearly able to give
relevant evidence leads to an adverse inference being
drawn by the
court …’. I make a final reference in this respect to
United
People’s Union of SA on behalf of Khumalo v Maxiprest Tyres
(Pty) Ltd
[20]
where
it was held as follows which in my view is directly applicable to the
current matter:
‘
Thus
in my view the respondent having put forward a prima facie case that
Mr Ntsoane for the union and the applicant had conceded
in
correspondence to what transpired between the parties, it was for the
union to have called him to clarify these issues, failing
which to
provide an explanation for such failure. There was no explanation why
Mr Ntsoane was not produced as a witness and therefore
the inference
to be drawn is that the applicant feared that he would give adverse
evidence against the applicant or for that matter
confirm the version
of the respondent. It is a well-established principle of our
law that failure to produce a witness who
is available and able to
testify and give relevant evidence, may lead to an adverse inference
being drawn. ….’
Based
on the above principles, I am compelled to conclude that Botha did
not testify because they would in fact damage the applicant’s
case by testifying.
[47]
My conclusion in this regard is further cemented by the actual
evidence of Yolande Anagnostopoulos (“Anagnostopoulos”),
who testified for the applicant. She was the HR manager, and was for
some or other inexplicable reason not involved in the conducting
of
the retrenchment process, as one would expect to be the case where an
employer has an HR manager. Despite this being suspicious
in itself,
Anagnostopoulos then goes further and actually stated that at the
time when Botha was presenting the third respondent
with the
retrenchment documents on 13 December 2011, it had already been
decided that the third respondent would be retrenched
that she could
go immediately or work out her notice. Referring specifically to
Botha, Anagnostopoulos said that he wanted her
to leave immediately
after she refused to sign the retrenchment agreement. Anagnostopoulos
also confirmed that she was not in the
meeting at all and thus could
not comment on what Botha actually said. Considering this was the
applicant’s own and only
witness in this respect, the only
rational and reasonable conclusion that can be drawn from this is
that Botha did exactly that,
and this fully corresponds with the
third respondent’s version. One has to thus accept that Botha
was not called because
he would not support the applicant’s
version.
[48]
Therefore, and insofar as the second respondent accepted the version
of the third respondent with regard to what transpired
in the meeting
on 13 December 2011, this determination is entirely reasonable, and
in my view unassailable. This means that the
proper evidence before
the second respondent thus was that the applicant (by way of Botha)
confronted the third respondent in the
meeting on 13 December 2011 on
the basis that she either sign the retrenchment agreement or leave
immediately, and when she refused
to sign the agreement, she was told
to pack up her office and leave immediately. There is no dispute that
this agreement was pre-signed
by the applicant, actually existed, and
was part of the documentary evidence. The fact that this was the
proper evidence has quite
some significance to the provocation issue
as will be addressed hereunder. What this conclusion also does mean
is that there is
no merit whatsoever in the contention raised by the
applicant as part of its review grounds that there was no voluntary
retrenchment
even offered to the third respondent on 13 December
2011.
[49]
This then leaves the events in the third respondent’s office on
13 December 2011. The applicant’s evidence in this
regard is
equally unsupportive of its case. Anagnostopoulos could actually shed
no light on these events, specifically saying she
was not there when
the events happened. However, and what is really in my view an
indictment on the case of the applicant is the
testimony of
Henderson, who was actually in my view quite a forthright and honest
witness. What Henderson testified is that Botha
came to him and told
him to unplug the third respondent computer to hurry her along.
Henderson stated that the third respondent
and Botha exchanged words
and “threats” passed between the two. Henderson said that
there was a lot of anger between
the two parties and that he
personally felt it was a personal issue between the two and nothing
“against the company”.
He also confirmed that the third
respondent was upset about the offer being made to her to leave the
company. Henderson also confirmed
that Botha indeed came to the third
respondent to ask why she was still there and should hurry packing up
which set off the whole
confrontation. This evidence of Henderson, as
a whole, certainly appears to support the version of the third
respondent.
[50]
The applicant also led the testimony of Chantal Mare (“Mare”).
Mare confirmed that Botha came and asked the third
respondent when
she would be finished packing up so she could leave the premises, and
that later on, Botha asked her (Mare) to
telephone security to remove
the third respondent because she threatened him. Mare said she heard
the third respondent swearing
at Botha and threatening him with her
husband. Mare did however say that Botha had her removed from the
premises by security because
she did not leave immediately and
threatened Botha. I have my doubts about the credibility of the
evidence of Mare. She only heard
what the third respondent said but
could not say what Botha said. There were also contradictions in her
evidence about the third
respondent telephoning her husband and her
evidence on the conduct of Botha was at odds with the testimony of
Henderson which was
far more credible. Finally, and despite initially
saying that Botha “confronted” the third respondent she
later changed
this version. However, and based on the consideration
of probabilities, as discussed hereunder, a conclusive credibility
finding
on the evidence of Mare is not that important.
[51]
Considering some of the evidence of Henderson and the evidence of
Mare, I do accept the applicant’s contention that the
third
respondent’s version about the events in her office on 13
December 2011 was not undisputed as the second respondent
found it
was. Because the second respondent accepted the third respondent’s
version of events for this reason alone, the
second respondent
committed a material irregularity. That is however not the end of the
enquiry. The question now is whether the
second respondent’s
acceptance of the version of the third respondent with regard to the
events in her office on 13 December
2011 is nonetheless a reasonable
outcome that could be arrived at. The answer to this in my view can
be found in a proper determination
of the probabilities. After all,
and in
SFW
Group Ltd and Another v Martell et Cie and Others,
[21]
the
Court said:
‘
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.’
[52]
The determination of probabilities entails a consideration of the
record of evidence as a whole,
for the purposes of establishing what
would be most natural, plausible and logical inference to be drawn
from such evidence. In
Minister
of Safety and Security v Jordaan t/a Andre Jordaan Transport,
[22]
it
was held that the inference drawn from the evidence just has to be
“the most natural or acceptable inference” and
not the
only inference.
[23]
In
Bates
and Lloyd Aviation (Pty) Ltd v Aviation Insurance Co,
[24]
it
was said:
‘…
The
process of reasoning by inference frequently includes consideration
of various hypotheses which are open on the evidence and
in civil
cases the selection from them, by balancing probabilities, of that
hypothesis
which seems to be the most
natural and plausible (in the sense of acceptable, credible or
suitable)
.’ (emphasis added)
[53]
What is apparent from the evidence is that the third respondent was
in fact told on 13 December 2011 to pack her things and
leave
immediately, and this upset her. It also did not help that Botha in
fact sent a chaperone with the third respondent to her
office, in
essence indicating that he did not trust her when there was no reason
for this. It is equally apparent that Botha was
becoming impatient
because the third respondent was not leaving quick enough and
actually came to hurry her along. In the course
of getting the third
respondent to leave, and considering the third respondent was already
upset by the events, a verbal altercation
between her and Botha then
ensued. It is based on all of these facts that it is entirely
probable that the third respondent acted
as she did in response to
what happened to her in the first place, was not the aggressor in
this instance, and was actually provoked.
I also find it unlikely
that Botha never swore at the third respondent as suggested by Mare
especially considering the evidence
of Henderson. Accordingly, and
despite the second respondent acting irregularly in concluding that
the third respondent’s
evidence was undisputed, the fact
remains that the ultimate conclusion arrived at by the second
respondent with regard to the events
on 13 December 2011 remained a
reasonable outcome, fully supported by the probabilities.
[54]
In the end, there is simply no basis for me to interfere with the
conclusions the second respondent arrived at with regards
to all the
events that took place on 13 December 2011. Principally, the
conclusions of the second respondent simply do not constitute
irregularities, and despite the one irregularity that does exist as
set out above, the outcome still remains a reasonable outcome.
[55]
The applicant’s review issues also included a complaint that
the second respondent decided on the fairness of the retrenchment
when she was not called on to do so. This criticism is entirely
misplaced. It was very much raised as an issue from the outset
that
the third respondent contended that she was actually dismissed on 13
December 2011 prior to the disciplinary hearing. At the
start of the
arbitration, the third respondent actually said she was twice
dismissed and the applicant disputed the first dismissal.
The second
respondent resolved the issue by recording that as it was at least
common cause that the third respondent was dismissed
following the
disciplinary enquiry on 19 December 2011, the case should focus on
that. I have no difficulty with this approach
which I consider to
have been the proper course of action for the second respondent to
follow. In terms of Section
138(1)
of the LRA, a commissioner may conduct arbitration proceedings in any
manner that a commissioner deems fit.
[25]
As the Court said in
CUSA
v Tao Ying Metal Industries and Others:
[26]
‘
Consistent
with the objectives of the LRA, commissioners are required to 'deal
with the substantial merits of the dispute with the
minimum of legal
formalities'…. Thus the LRA permits commissioners to 'conduct
the arbitration in a manner that the commissioner
considers
appropriate'. But in doing so, commissioners must be guided by at
least three considerations. The first is that they
must resolve the
real dispute between the parties. Second, they must do so
expeditiously. And, in resolving the labour dispute,
they must act
fairly to all the parties as the LRA enjoins them to do.’
The
second respondent in the end only determined the fairness of the
dismissal resulting from the disciplinary enquiry on 19 December
2011. The second respondent never pronounced on the fairness of the
dismissal contended by the third respondent to have happened
on 13
December 2011. The second respondent properly identified the true
issue in dispute that she was required to determine, being
the
fairness of the dismissal which took place on 22 December 2011 and in
my view, only considered the preceding events (including
the
retrenchment issue) as part and parcel of the overall determination
whether this dismissal was fair. In
National
Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and
Another,
[27]
it was held as follows:
‘
It
is the duty of a court to ascertain the true nature of the dispute
between the parties. In ascertaining the real dispute a court
must
look at the substance of the dispute and not at the form in which it
is presented. The label given to a dispute by a party
is not
necessarily conclusive. The true nature of the dispute must be
distilled from the history of the dispute, as reflected in
the
communications between the parties and between the parties and the
Commission for Conciliation, Mediation and Arbitration (CCMA),
before
and after referral of such dispute. These would include referral
documents, the certificate of outcome and all relevant
communications. It is also important to bear in mind that parties may
modify their demands in the course of discussing the dispute
or
during the conciliation process. All of this must be taken into
consideration in ascertaining the true nature of the dispute.’
The
above ratio would equally apply to arbitrators conducting
arbitration.
[28]
[56]
Also in
CUSA
v Tao Ying Metal Industries and Others,
[29]
the
Court said that ‘In deciding what the real dispute between the
parties is, a commissioner is not necessarily bound by
what the legal
representatives say the dispute is. The labels that the parties
attach to a dispute cannot change its underlying
nature. A
commissioner is required to take all the facts into consideration
including the description of the nature of the dispute,
the outcome
requested by the union and the evidence presented during the
arbitration ...The dispute between the parties may only
emerge once
all the evidence is in’. This is exactly what happened
in
casu
,
and the second respondent determined the matter accordingly.
[57]
Therefore, and despite it being true that the second respondent
indeed considered the issue of the retrenchment in the circumstances
of this matter, it would have been remiss of her not to do so. As
stated above, and considering the true nature of the dispute
and all
the facts relating to it, the consideration of this issue must be
seen in proper context. This context has nothing to do
with the issue
as to whether the retrenchment itself is fair or unfair, but involves
the very issue raised by the third respondent
that she was provoked
and as a possible explanation on the probabilities as to why the
applicant in fact acted towards the third
respondent as it did in
this matter. The manner in which the second respondent considered the
retrenchment issue is clearly indicative
of this approach. To put it
in simple terms – with the third respondent simply being moved
out of her position, then being
asked to resign or face a
retrenchment process, then being told to sign a retrenchment
agreement or leave immediately, and then
finally in fact being
expeditiously ousted from the premises, there is little wonder that
she became upset and acted in the manner
that formed the subject
matter of the disciplinary charges against her. This being the case,
then surely it must have been apparent
to the applicant that to
discipline the third respondent was entirely inappropriate, and with
the applicant persisting in doing
so could reasonably lead to the
conclusion that the applicant had an ulterior motive. This motive,
according to the second respondent,
was to try and camouflage the
clearly botched retrenchment. There can be nothing wrong with this
approach of the second respondent,
and in my view is an approach
consistent with logic and common sense in determining the true
dispute.
[58]
This then neatly leads to the consideration of the provocation issue.
The defence of the third respondent was that she was
provoked by the
applicant. In my view, the third respondent’s provocation
defence has proper merit, and this is an issue
the second respondent
herself appreciated and in the end, also determined to be the case.
The fact is that the applicant was required
to prove that the reason
why it dismissed the third respondent was fair. In
Fidelity
Cash Management Service,
[30]
the Court held:
‘
It
is an elementary principle of not only our labour law in this country
but also of labour law in many other countries that the
fairness or
otherwise of the dismissal of an employee
must
be determined on the basis of the reasons for dismissal which the
employer gave at the time of the dismissal
...’
(emphasis added)
These
reasons, according to the applicant, are firmly grounded on the
manner in which the third respondent behaved on 13 December
2011 in
her office after the meeting on the same day. It therefore must be a
fundamental part of this fairness determination that
the reason why
the third respondent behaved as she did must be decided – hence
the provocation defence. If there is provocation,
then surely the
dismissal of the third respondent for the reasons given cannot be
fair.
[59]
Is provocation then established? In
Tedco
Plastics (Pty) Ltd v National Union of Metalworkers of SA and
Others,
[31]
the Court dealt with the concept of provocation and said:
‘…
Whatever
the correct legal categorization, however, the very fact that a
person's actions were a reaction to the conduct of another
does not
mean that the law will come to their aid. Certainly, in the case of
delictual liability, it appears that two requirements
will have to be
met, namely, that the provocative conduct must be such that the
reaction to it by way of physical assault was reasonable,
ie would a
reasonable person in the position of the person have acted as he did
in the face of the provocation ; and, that the
conduct must be an
immediate and reasonable retaliation, ie it must follow immediately
on the provocation and not be out of proportion
to the nature and
degree of the provocative behaviour (Neethling et al at 94).
’
Based
on this test, one must ask if a reasonable person in the position of
the third respondent could have acted as she did in the
face of what
happened to her, and whether her reaction was immediate and not out
of proportion to what had happened to her.
[60]
In my view, what actually happened to the third respondent was
reprehensible. She was confronted on 12 December and told to
resign
or face retrenchment proceedings. This took place against the
background of the third respondent having been replaced by
another
new and temporary employee. The third respondent declined to resign
and stated that she would challenge retrenchment. The
applicant did
not leave matters there. The next day, 13 December 2011, the third
respondent is called to a meeting handed a notice
of intention to
retrench, and was in fact also given a pre-prepared and already
signed retrenchment agreement. The third respondent
is instructed to
sign the agreement or leave immediately. When the third respondent
then refuses to sign, she is actually told
to pack her things and
leave immediately. It is apparent to all she is upset, and rightly
so. The applicant then adds insult to
injury by sending her back to
her desk with a chaperone and when she does not leave fast enough,
Botha comes to hurry her along
in a rather condescending and in
itself provocative manner. For the third respondent to react as she
did is entirely understandable
and justifiable, and is certainly
consistent with the action of a reasonable person in the position of
the third respondent in
the circumstances. The applicant showed
complete disrespect to the third respondent as an employee and the
employment rights that
accrued to her. I refer to the following
dictum
from the judgment in
Le
Monde Luggage CC t/a Pakwells Petje v Dunn NO and Others,
[32]
which I consider quite apposite
in
casu
:
‘…
The
history of South African labour relations reveals all too often the
contempt with which employers treated employees whose dignity
was all
too often sacrificed upon the alter of an avaricious desire to
extract the maximum profit from the workforce and powered
by a racist
disregard for the interests of employees. Employers must not only
treat employees with respect but must comport themselves
with the
knowledge that there exists an obligation upon them to exercise power
in the most responsible possible manner ….
’
[61] The reaction of the
third respondent to the behaviour meted out to her was immediate and
at the end of what must have been
a taxing two days. It was certainly
not out of proportion with the events she had been confronted with.
It must also be considered
that the final reaction of the third
respondent was instigated by the conduct of Botha in pressurizing her
to leave quicker. This
led to a personal confrontation between two
persons, which was exactly what Henderson testified it was. There is
simply nothing
disproportionate between how the third respondent
behaved and the behaviour meted out to her.
[62] The third
respondent’s defence of provocation must be sustained which is
what the second respondent did. This conclusion
of the second
respondent is rational, reasonable, fully in accordance with the
evidence properly before her, and not in any manner
irregular. In the
circumstances, the third respondent simply did not commit the
misconduct she had been charged with in respect
of the first and
second charges, and the second respondent’s conclusion that
this was the case is upheld.
[63]
Even accepting that the third respondent did commit misconduct on 13
December 2011, the outcome arrived at by the second respondent
can
nonetheless be sustained as a reasonable outcome for an entirely
different reason, fully supported by the evidence. This reason
is
that dismissal as a sanction would be entirely inappropriate,
considering the conduct meted out to the third respondent and
the
manner in which she was provoked. It also cannot be ignored that in
my view, the applicant actually had an ulterior motive
in proceeding
with disciplinary action against the third respondent. In
Afrox
Ltd v National Bargaining Council for the Chemical Industry and
Others
[33]
the Court said:
‘…
.
Whereas the conduct complained of is most certainly serious, it is
not dismissible conduct per se, in all circumstances. The arbitrator
cannot be faulted for taking the surrounding circumstances into
account, namely the provocation and the evidence which was led
regarding the revenge motive of the two employees in question.
’
[64]
Recently, a similar approach was followed in
ASA
Metals (Pty) Ltd (Dilokong Chrome) v Commission for Conciliation,
Mediation and Arbitration and Others
[34]
and the Court held as follows:
‘
In
conclusion, it is my view that, despite the unsatisfactory nature of
the award, it cannot be said that it is a decision which
a reasonable
decision maker could not have reached. Whilst it is true that
the commissioner sought to rely on provocation
and private
defence as justification for his conclusion that the sanction of
dismissal was too harsh, these are however not the
only reasons which
the commissioner articulated for his conclusion.
Factors
such as clean record prior to the incident and the circumstances
under which the incident of assault took place were
also taken into
account as a justification for the conclusion that dismissal was too
harsh. The commissioner further took into
account the well conceded
fact that Madutlela was aggressive. For me even if one were to remove
provocation and private defence,
the remaining factors in the
commissioner's reasoning still render his award reasonable
.’
[65] I
conclude by referring to the fact that the first and second charges
are really one and the same charge, being that of unacceptable
behaviour of the third respondent towards her manager on 13 December
2011, and these charges were in fact split. This splitting
of charges
was in my view done to bolster the applicant’s case against the
third respondent. This matter is in fact comparative
to what the
Court deal with in
Volkswagen
SA (Pty) Ltd v Koorts NO and Others.
[35]
.
The following extract from the judgment is pertinent, and in my view
supports what has been set out above:
[36]
‘…
Thirdly,
I must point out that there appears to be a splitting of charges. The
employees are charged with making false explanations
to Rautenbach
about their absence from their workstation and activities in the
locker room although there appears to be no explicit
provision in the
code for this offence. This or the evidence relating to this in turn,
according to the appellant, to be used to
demonstrate that the
employees were dishonest in the sense that they stole company time to
spend on their own private interests
while being paid for this time.’
Of
further relevance is the judgment in
Ntshangane
v Speciality Metals CC
[37]
where
Mlambo J, as he then was, said the following:
‘…
Respondent's
contention is that applicant's false explanation for his lateness and
absenteeism presented a clear breach of the trust
the respondent had
placed on him. Respondent therefore contends that with the trust
breached it was entitled to formulate a separate
charge following
therefrom and dismiss him.
If applicant had a good
and acceptable explanation for his lateness and absenteeism it would
have been unfair to dismiss him under
those circumstances. The fact
that applicant had no good or acceptable reason for being late and
absent made it proper for him
to be charged. In charging him on
account of lateness and absenteeism respondent made an election.
Having made this election respondent
went further and used
applicant's unacceptable and false explanation to formulate a third
charge.
In my view this was
unfair. It is clear that the basis for finding applicant guilty on
the first two charges was applicant's unacceptable
explanation. Using
the explanation to formulate a third charge took the issue beyond the
realms of fairness. ….’
[66] Accordingly, and in
light of all of the above, I conclude that the second respondent’s
determination that the dismissal
of the third respondent was
substantively unfair is for the most part not an irregularity in the
first instance, and in any event
an outcome a reasonable
decision-maker could come to. The second respondent’s finding
of substantive unfairness is thus upheld.
The
issue of the relief
[67]
This then only leaves the issue of relief. The applicant has taken
issue with the compensation award of the second respondent.
Now it is
so that the second respondent simply determined the amount of
compensation based on citing that it was “fair and
equitable”,
but did not motivate why she so awarded. This failure would
constitute an irregularity, and in this regard I
refer to what the
Court said in
Matjhabeng
Municipality v Mothupi No and Others
:
[38]
‘
The
commissioner then decided that R250,000 was a just and equitable
amount without giving reasons why he came to that conclusion.
In my
opinion he should have gone further and given reasons why he accepted
that the said amount was just and equitable, and perhaps
also taken
into account whether the third respondent was working, how much he
was paid, etc. Even if he came to the same conclusion
at least one
would know why he came to that conclusion. On that basis, it is my
conclusion that the failure on the part of the
commissioner to
justify the compensation amounts to a reviewable irregularity.
Commissioners should be
vigilant at all times, especially where they decide not to grant
compensation or they grant one or two months
or so compensation, or
where the maximum compensation is granted, to make sure that they
give reasons therefor. Therefore, commissioners
should be careful not
[to burden] the courts with the task of making inferences from the
body of evidence for the reasons for the
compensation, although the
courts will not fail in their duty in that respect.’
[68]
It is trite that the determination of the quantum of compensation
awarded in unfair dismissal arbitration proceedings by an
arbitrator
entails the exercise of discretion. As to how this discretion is to
be exercised, reference is made to the well-known
considerations as
set out in the judgment of
Ferodo
(Pty) Ltd v De Ruiter.
[39]
In
Le
Monde Luggage CC t/a Pakwells Petje v Dunn NO and Others,
[40]
the
Court held
:
‘
The
compensation which must be made to the wronged party is a payment to
offset the financial loss which has resulted from a wrongful
act. The
primary enquiry for a court is to determine the extent of that loss,
taking into account the nature of the unfair dismissal
and hence the
scope of the wrongful act on the part of the employer. This court has
been careful to ensure that the purpose of
the compensation is to
make good the employee's loss and not to punish the employer.’
[69]
The second respondent’s lack of reasoning and motivation why
she decided to award the quantum of compensation she did
would thus
constitute a material irregularity. I am accordingly compelled in the
circumstances to determine the issue of appropriate
compensation
based on the evidence already on record in order to determine whether
the quantum of the compensation awarded is nonetheless
a reasonable
outcome. The applicant maintains its challenge based on a six months’
salary award, but as stated above, this
was varied by the second
respondent to three months. Considering the issue whether such three
months’ salary award is a reasonable
outcome, I consider that
the conduct of the applicant towards the third respondent was
entirely unacceptable, that the third respondent
was actually
provoked, and that the third respondent should never have been
disciplined in the first place. I accept that the third
respondent
had short service. Based on these considerations, I have set out
above, I can see no reason to interfere with the second
respondent’s
decision to award the third respondent three months’ salary in
compensation, which I consider to be consistent
with the exercise of
a judicial discretion. I would in fact have awarded the third
respondent more compensation, and consider the
second respondent as
having been generous to the applicant.
[70]
As a matter of law, in any event, this Court should not too readily
interfere with determinations made by CCMA commissioners
with regard
to the quantum of compensation. In
Kemp
t/a Centralmed v Rawlins,
[41]
it
was held that in principle, the issue of compensation can be decided
by the Court in its own judgment, which principle would
also clearly
apply to an arbitrator deciding on compensation. The Court in
Kemp
further said, specifically relating to compensation:
[42]
‘
From
the above it is clear that in the case of a narrow discretion - that
is a situation where the tribunal or court has available
to it a
number of courses from which to choose - its decision can only be
interfered with by a court of appeal on very limited
grounds such as
where the tribunal or court-
(a)
did not exercise a judicial discretion; or
(b)
exercised its discretion capriciously; or
(c)
exercised its discretion upon a wrong
principle; or
(d)
has not brought its unbiased judgment to
bear on the question; or
(e)
has not acted for substantial reason (see
Ex parte Neethling and others
1951 (4) SA 331
(A) at 335); or
(f)
has misconducted itself on the facts
(Constitutional Court judgment in the
National
Coalition for Gay and Lesbian Equality
case at para 11); or
(g)
reached a decision in which the result
could not reasonably have been made by a court properly directing
itself to all the relevant
facts and principles (Constitutional Court
judgment in
National Coalition for Gay &
Lesbian Equality
at para 11).’
I
do not consider the second respondent’s determination of
compensation to fall foul of any of the above considerations. There
is accordingly no basis to interfere with the second respondent’s
award of compensation. It is upheld.
Costs
[71]
The applicant has also pertinently raised the issue of costs of the
applicant’s urgent application to stay a warrant
of execution
issued by the third respondent, brought by the applicant on 13
December 2012. It is trite that a pending review application
does not
stay an arbitration award, and thus the third respondent was well
within her rights to have pursued certification of the
award in her
favour and have a warrant of execution issued, despite any pending
review. The fact is that it is not unusual that
individual litigants
pursue execution of arbitration awards in their favour, and employer
parties have to bring urgent proceedings
to stay such execution
pending the review application. The fact remains that the applicant
did not comply with the arbitration
award in favour of the third
respondent which is what prompted the third respondent to act as she
did. The reason for non compliance
by the applicant with the award
was these review proceedings, and although justified at the time as a
basis for non compliance,
this review application has now been
determined to have no merit. I consider there to be an inextricable
link between the urgent
application and the review, especially
concerning the issue of costs, and where the review fails, the third
respondent should not
be burdened with the costs of the urgent
application. I in any event have a wide discretion when it comes to
the issue of costs,
by virtue of the provisions of Section 162(1) and
(2) of the LRA. In applying my discretion, and also considering the
above reasons,
I do not believe any costs award against the third
respondent would be appropriate in this instance. Such a costs award
would certainly
not, in my view, be fair. I accordingly determine
that no order as to costs be made in respect of any of the legal
proceedings
relating to this matter, which would include the urgent
application.
Order
[72]
In the premises, I make the following order:
72.1
The applicant’s review application is dismissed.
72.2
There is no order as to costs, both in these review proceedings, and
in the applicant’s urgent application
to stay the execution of
the arbitration award in favour of the third respondent.
72.3
The Registraar is directed to forward a copy of this judgment to the
third respondent.
____________________
Snyman AJ
Acting
Judge of the Labour Court
APPEARANCES:
FOR THE
APPLICANT:
M
E Duvenage of Duvenage Attorneys
FOR THE THIRD
RESPONDENT:
None
[1]
66
of 1995.
[2]
(2007)
28 ILJ 2405 (CC).
[3]
Ibid
at para 110.
[4]
(2008)
29 ILJ 2461 (CC)
at para 134.
[5]
(2008)
29 ILJ 964 (LAC) at para 96.
[6]
Id
at para 102.
[7]
Id
at para 103.
[8]
[2013] 11 BLLR 1074
(SCA)
Cachalia
and Wallis JJA.
[9]
Id
at para 25.
[10]
(JA
2/2012)
[2013] ZALAC 28
(4 November 2013)
(4
November 2013) not yet reported, per Wag
lay
JP.
[11]
Id
at para 14.
[12]
Id
at para 15.
[13]
Id
at para 16.
[14]
See
Section 145(2)(ii).
[15]
(2005) 26 ILJ 921 (LC) at para 12. See also
SA
Revenue Service v Commission for Conciliation, Mediation and
Arbitration and Others
(2010)
31 ILJ 1238 (LC) at para 20.
[16]
(2007) 28 ILJ 1075 (LC) at para 8.
[17]
(2006) 27 ILJ 107 (LAC) at para 14.
[18]
(2004) 25 ILJ 1260 (LAC) at para 46.
[19]
(2007) 28 ILJ 2053 (LC) at paras 22 and 23.
[20]
(2009) 30 ILJ 1379 (LC) at para 29.
[21]
2003 (1) SA 11
(SCA) at para 5.
[22]
(2000)
21 ILJ 2585 (SCA) at para 9.
[23]
See
also
Govan
v Skidmore
1952
(1) SA 732
(N)
at 734A-C;
Food
and Allied Workers Union and Others v Amalgamated Beverage
Industries Ltd
(1994)
15 ILJ 1057 (LAC)
at 1064C-E.
[24]
1985
(3) SA 916
(A)
at 939I-J
.
[25]
Section
138(1) reads 'The commissioner may conduct the arbitration in a
manner that the commissioner considers appropriate in
order to
determine the dispute fairly and quickly, but must deal with the
substantial merits of the dispute with the minimum
of legal
formalities.'
[26]
CUSA
v Tao Ying Metal Industries and Others
(supra)
at para 65.
[27]
(2003) 24 ILJ 305 (CC) at para.52.
[28]
Coin
Security Group (Pty) Ltd v Adams and Others
(2000) 21 ILJ 925 (LAC) at para 16 ;
Fidelity
Guards Holdings (Pty) Ltd v Professional Transport Workers Union and
Others (1)
(1998) 19 ILJ 260 (LAC) at 269G H ;
Viney
v Barnard Jacobs Mellet Securities (Pty) Ltd
(2008)
29
ILJ
1564 (LC)
at para 37 ;
Kroukam
v SA Airlink (Pty) Ltd
(2005)
26
ILJ
2153 (LAC)
at 2162F;
SA
Chemical Workers Union and Others v Afrox Ltd
(1999)
20
ILJ
1718 (LAC)
at 1726;
Van
der Velde v Business and Design Software (Pty) Ltd and Another
(2006)
27
ILJ
1738 (LC)
at 1745I.
[29]
Id
at para 66.
[30]
(
supra
)
footnote 5 at para 32.
[31]
(2000) 21 ILJ 2710 (LC) at para 15.
[32]
(2007) 28 ILJ 2238 (LAC) at para 29.
[33]
(2006) 27 ILJ 1111 (LC) at para 19.
[34]
(2013) 34 ILJ 350 (LC) at paras 30 – 31.
[35]
(2011) 32 ILJ 1892 (LAC).
[36]
Id
at para 33.
[37]
(1998) 19 ILJ 584 (LC) at para 15 – 17.
[38]
(2011)
32 ILJ 2154 (LC) at paras 47 – 48.
[39]
(1993)
14
ILJ
974 (LAC)
.
The Court held that ‘(a) [T]here must be evidence of actual
financial loss suffered by the person claiming compensation;
(b)
There must be proof that the loss was caused by the unfair labour
practice; (c) The loss must be foreseeable, ie not too
remote or
speculative ; (d) The award must endeavour to place the applicant in
monetary terms in that position which he would
have been had the
unfair labour practice not been committed ; (e) In making the award
the court must be guided by what is reasonable
and fair in the
circumstances ; (f) There is a duty on the employee (if he is
seeking compensation) to mitigate his damages by
taking all
reasonable steps to acquire alternative employment.’
[40]
(2007)
28
ILJ
2238 (LAC)
at para 30
.
[41]
(2009) 30 ILJ 2677 (LAC) at para 3; see also
Media
Workers Association of SA and Others v Press Corporation of SA Ltd
(1992)
13 ILJ 1391
(A) at 1397I-1398B.
[42]
Id
at para 21.