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[2014] ZALCJHB 235
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Midfield Estate Home Owners Association v Commission For Conciliation, Mediation and Arbitration and Others (JR 1444/12) [2014] ZALCJHB 235 (23 April 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE
NO JR 1444/12
In
the matter between:
MIDFIELD
ESTATE HOME OWNERS
ASSOCIATION
.........................................................................................................................
Applicant
and
THE
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
.............................................................................................................
First Respondent
COMMISSIONER
G.S JANSEN
VAN
VUUREN N.O
….............................................................................................
Second
Respondent
LESIBA
ADAM
NGOETJANA
...................................................................................
Third
Respondent
Date
heard: 22 April 2014
Judgment
delivered: 23 April 2014
Date
edited: 24 June 2014
EX-TEMPORE
JUDGMENT
VAN
NIEKERK J
[1]
This is an unopposed application heard yesterday. It is an
application to review and set aside an arbitration award made
by the
second respondent, to whom I shall refer as the Commissioner, on 3
May 2012. In his award, the Commissioner found
that the
applicant had failed to establish that the third respondent was under
the influence of liquor while on duty and reinstated
him with effect
from the date of his dismissal. I do not intend to repeat the
facts relevant to the dismissal of the third
respondent; they are
captured in the summary of the evidence prepared by the
Commissioner.
[2]
The applicant in these proceedings contends that in the exercise of
the Commissioner’s functions he committed a gross
irregularity
and that the award is reviewable on that basis. The heads of
argument submitted by the applicant make reference
to principles that
predate the recent decisions by the Supreme Court of Appeal and
Labour Appeal Court respectively in
Nedbank
and
Harold
and
Goldfields
and the heads allow to a significant extent on
what might be termed process related conduct on the part of the
Commissioner.
[3]
The scope of intervention by this court in applications for review
where a gross irregularity on the part of the decision maker
as
alleged has now been clarified. This court may intervene if,
and only if, the outcome of the proceedings under review
in the form
of the decision made by the Commissioner is so unreasonable that no
reasonable decision maker could come to that decision
on the
available material. In the present instance, the Commissioner’s
reasoning is reflected in paragraphs 34 to 39
of the award, they read
As follows:
“
34.
The respondent had to prove that the applicant had worked or reported
for duty under the influence of drugs or alcohol.
35.
Messrs Halgryn and Slater both testified that the applicant had
smelled of alcohol and that he had in fact conceded having two
beers
before he came on duty, but that
per se
, does not imply that
he made, that he had made himself guilty of misconduct. The
question is whether he had actually been
under the influence of
alcohol.
36.
Mr Slater also contended that the applicant had been unsteady on his
feet, that his speech had been slower than usual and that
his eyes
had been red but not bloodshot. Mr Slater added that it
appeared as if the applicant had to concentrate before he
said
anything but he did not elaborate any further. It is, for
instance, not clear why Mr Slater said that the applicant
had been
unsteady on his feet.
37.
Mr Halgryn significantly did not corroborate Mr Slater’s
observations. He said absolutely nothing about the applicant’s
state of sobriety.
38.
The applicant, on the other hand, denied having been under the
influence of alcohol and Mr Bobelo corroborated his version.
39.
There is no reason whatsoever why Mr Slayer’s uncorroborated
version should be preferred to the applicant’s corroborated
version. It follows that the respondent has not discharged the
onus to prove that the applicant had indeed been under the
influence
of alcohol.”
In
relation to sanction, the Commissioner had the following to say:
“
40.
It also follows that the applicant should not have been dismissed.
41.
Standard Rule 5: Respondent’s Disciplinary Code in any event
explicitly distinguished between a serious and a minor offence
when
an employee is found to be under the influence of alcohol. The
rule only applies for a final, only provides for a final
written
warning in the case of a minor offence.
42.
Mr Slater’s evidence certainly did not indicate that the
applicant had been heavily (seriously) intoxicated. Mr
Slater
did not, for instance, say that the applicant had been falling over
his feet, that his speech had been slurred or that this
eyes had been
blood shot and it follows that dismissal would not have been
appropriate even if I were wrong in holding that the
applicant should
not have been found guilty in respect of the charge in question.”
[4]
Insofar as the applicant in the present proceeding relies on the
conduct of the Commissioner, it should be recalled that arbitration
proceedings in the CCMA were meant to be a robust process and that
the Act provides Commissioners with wide powers to conduct
proceedings as they deem appropriate. While the Commissioner
must, of course, afford the parties a right to a fair hearing,
the
imperatives of expeditious dispute resolution underlying the Act may
require an approach that is, as I have indicated, more
robust than
that ordinarily encountered in the civil or criminal courts.
[5]
There is nothing in the record that establishes, in my view, that
the Commissioner was not impartial, that he had extended,
exhibited
any bias in favour of one party or the other. While he often
intervened in the proceedings and conducted them in
to what I have
referred as ‘in robust fashion’, both parties were the
subject of intervention and in my view, neither
party was prejudiced
on account of the Commissioner’s conduct and certainly not
denied a fair trial.
[6]
Turning next to the award itself, the applicant contends, as I
understand the submission, that the evidence viewed as a whole
cannot
serve reasonably to establish the conclusion reached or to sustain
the conclusion reached by the Commissioner. In
particular the
applicant contends that the Commissioner should have rejected the
third respondent’s version and preferred
that proffered by its
own witnesses. The charge against the third respondent was that
he was under the influence of alcohol
while on duty.
[7]
The Commissioner’s decision in effect is that the applicant
failed to establish that the third respondent was indeed under
the
influence. In my view, the Commissioner’s finding, i.e.
that Slater’s evidence had not necessarily and itself
established that the third respondent was under the influence and
that, that evidence had not been corroborated by Halgryn and
that the
third respondent’s concession of having consumed two beers
before coming on duty were insufficient to establish
the fact of
drunkenness, is not a finding that falls outside of the band of
decisions to which a reasonable decision maker could
come.
[8]
The fact that the third respondent had failed to put to the
applicant’s witnesses during the course of the arbitration
proceedings that he had been taking medication is not fatal.
The Commissioner correctly admonished him for this failure but
his
decision, the Commissioner’s decision that the applicant had
failed to establish that the third respondent was drunk
was a
decision made on the adequacy or more accurately, the inadequacy of
the evidence proffered by the applicant’s witnesses
themselves.
[9]
In these circumstances, in my view, the award is not reviewable and
the application stands to be dismissed. Insofar as
the
applicant attacks the Commissioner’s conclusion that the
penalty of dismissal was in any event harsh, again this court’s
capacity to intervene is in relation to the issue of sanction, is
limited. The Constitution Court in the
Sidumo
decision
has established the same threshold of reasonableness in relation to
sanction and again this court is entitled to intervene
if, and only
if, any decision on sanction to which a Commissioner comes is so
unreasonable that no reasonable decision maker could
come to that
decision.
[10]
Insofar as the Commissioner suggests that even if the applicant had
been under the influence, the degree to which he had so
been and the
nature of his misconduct viewed in context, warranted a lesser
penalty. Again, that is not a decision that is
so unreasonable,
given all the circumstances and in particular the provision of the
applicant’s Disciplinary Code that this
court would be entitled
to intervene.
For
those reasons, I make the following order:
1.
The application is dismissed.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT