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[2014] ZALCJHB 195
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Royal Mnandi (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR3006/2012) [2014] ZALCJHB 195 (28 May 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, BRAAMFONTEIN
JUDGMENT
NOT
REPORTABLE
CASE
NO: JR 3006/2012
In
the matter between:
ROYAL
MNANDI (PTY) LTD
Applicant
and
COMISSION
FOIR CONCILIATION
MEDIATION
AND ARBITRATION
First
Respondent
THEMBA
HLATSWAYO N O
Second
Respondent
HICRAWU obo MOHOLI E &
14 OTHERS
Third
to Eighteenth Respondents
Heard
:
17 April 2014
Delivered:
28
May 2014
Summary:
Review.
JUDGMENT
GUSH
J
[1]
In this matter, the applicant applies to
review and set aside the award of the second respondent who concluded
that the dismissal
of the fourth and further respondents was
substantively unfair and ordered that they be reinstated
retrospectively to the date
of their dismissal.
[2]
The applicant operates a catering business
inter alia on contract to the Witwatersrand University. Prior to
their dismissal, the
fourth to eighteenth respondents (employees)
were employed by the applicant, in the kitchens the applicant
operated at the University.
[3]
The circumstances that led to the
employees’ dismissal commenced in October 2011 when the
applicant’s contract with
the University was extended from the
four kitchens it was running at the time to six kitchens.
[4]
According to the applicant, this
necessitated the rescheduling of rosters and the allocation of staff
in different kitchens. The
applicant advised its staff of the
intended changes to the roster. The proposed rosters reallocating
staff caused the employees
some concern, particularly regarding their
complaint that they did not believe that they had been consulted
regarding the move
prior to it being implemented. It was agreed that
a meeting would take place on 21 February 2012 to discuss these
concerns. At
this meeting, the applicant scheduled specific meetings
to deal with the employees grievances.
[5]
The first of such meetings was scheduled to
take place at 14H00 5 March. For reasons described by the applicant
as "operational
reasons" its manager appointed to attend
that meeting on its behalf did not do so. There was some dispute as
to whether this
manager arrived at the meeting at all or whether as
alleged by the applicant, the manager arrived 20 minutes late.
Suffice to say
that the employees left the venue without the meeting
having taken place.
[6]
As a consequence of the meeting not taking
place the employees, the next day, reported for duty at the units or
kitchens to which
had been allocated and where they were working
prior to the rescheduling that had given rise to their concerns.
[7]
In response to this action, the applicant
addressed the following letter to the employees:
‘
it
has come to our attention of a number of employees opted to abandon
their workstation/units today (7 March 2012).
These actions are viewed
as a serious contravention of their contracts of employment as well
as the policies and procedures of this
company. This is impacting
negatively on our relationship with the client and the operations of
RoyalMnandi.
This kind of behaviour
will not be tolerated on the necessary disciplinary action will be
initiated to address this misconduct.
All employees are hereby
instructed to report back to their respective work stations
immediately, failing which the company will
have no option but to
immediately suspend the perpetrators pending disciplinary procedures.
Any
grievances that employees may have should be addressed through the
company's grievance procedures and process.’
[1]
[8]
Since the employees did not immediately
return to their workstations, the applicant handed them “notice[s]
of suspension”,
suspending them on full remuneration pending
the outcome of an investigation and possible disciplinary enquiry.
[9]
Two days later, the employees were issued
with a notice to attend a disciplinary enquiry in which notice, they
were advised that
the charge against them was "gross
insubordination".
[10]
At the subsequent disciplinary enquiry, the
employees were all found guilty of misconduct. Prior to imposing a
sanction on the employees,
their representative who appeared on their
behalf at the disciplinary enquiry submitted in mitigation of
sanction that the employees
were remorseful, (and bar one) had no
previous disciplinary record of misconduct and that the trust
relationship between the applicant
and the applicant had not been
destroyed.
[11]
At the arbitration the second respondent
recorded that the evidence was that only one employee had a
disciplinary record viz. a
first written warning for an issue
relating to overtime and as far as their length of service was
concerned; of the 14 employees:
one had 12 years service, 3 -11 years
service; 4 - 7 years service; 1 – 5 years service; 1 - 4 years
service; 2 – 3
years service; and three between 1 and 2 years
service.
[12]
The outcome of the disciplinary enquiry was
that the employees were found guilty of the misconduct and were all
dismissed.
[13]
What is abundantly clear from the extensive
record and bundle of documents is that the employees embarked on
what, to all intents
and purposes, could be regarded as industrial
action, albeit unprotected. They had expressed their concerns
regarding their placement
and in particular their concerns
surrounding what they perceived to be the applicant’s failure
to consult them. There can
be no doubt that the failure of the
applicant’s manager to attend (timeously or at all) to the
first of the scheduled meetings
to deal with this issue was the
catalyst for the action taken by the employees.
[14]
What however is inexplicable is the
applicant’s response to the actions taken by the employees.
There can no doubt that the
action taken by the employees was
tantamount to industrial action that did not comply with the
provisions of chapter IV of the
Labour Relations Act.
[15]
In the Code of Good Practice: Dismissal;
Section 6 of the schedule 8 to the Act sets out clear guidelines for
employers faced with
unprotected industrial action. The only
explanation for the applicant’s conduct in charging the
employees with insubordination
is the applicant’s reluctance to
follow these guidelines.
[16]
In the founding affidavit, the applicant
avers that the second respondent’s award is “contradictory
and unjustifiable”;
that the second respondent “misconducted
himself”, “that the award does not accurately reflect the
evidence presented”,
that the second respondent further
considered the inherent probabilities” and that the award is
accordingly reviewable. The
supplementary affidavit seeks to expand
upon these grounds of “review” by averring that the
second respondent’s
questioning of the witnesses “did not
demonstrate partiality” (sic)
[17]
The applicant sets out at the commencement
of its analysis of the award the following submission:
‘
It
is submitted that the arbitrator committed gross irregularities in
the arbitration proceedings and/or alternatively that the
arbitrator
committed misconduct and/or alternatively that the findings of the
arbitrator are not rationally justifiable in relation
to the material
before him and/or alternatively that the arbitrator failed to take
into consideration material evidence before
him thereby committing
gross irregularities and/or alternatively ignoring material evidence
resulting in latent irregularity in
the method of determining issues.
The result the award is not one that a reasonable decision maker
would make.’
[18]
The
test to be applied in determining whether an award of a Commissioner
is reviewable was set out in the matter
of
Sidumo and Another v Rustenburg Platinum Mines and Others
[2]
and summarised as follows in
Edcon
Ltd v Pillemer NO and Other
s
[3]
Reduced
to its bare essentials, the standard of review articulated by the
Constitutional Court is whether the award is one that
a reasonable
decision maker could arrive at considering the material placed before
him.
[4]
[19]
The
test on review was subsequently dealt with in
Herholdt
v Nedbank Ltd
[5]
a decision of the Supreme Court of Appeals and by the Labour Appeal
Court in
Goldfields
Mining SA (Pty) Ltd v CCMA
.
[6]
[20]
in the
Herholdt
matter, the SCA said the following:
‘
...
the [SCA] enunciated an unreasonableness test ...
namely,
whether the award was one that a reasonable decision-maker could not
reach. That test involves the reviewing court examining
the merits of
the case 'in the round' by determining whether, in the light of the
issue raised by the dispute under arbitration,
the outcome reached by
the arbitrator was not one that could reasonably be reached on the
evidence and other material properly
before the
arbitrator.
... the reasoning of the arbitrator assumes less importance ...
The
reasons are still considered in order to see how the arbitrator
reached the result. That assists the court to determine whether
that
result can reasonably be reached by that route. If not, however, the
court must still consider whether, apart from those reasons,
the
result is one a reasonable decision-maker could reach in the light of
the issues and the evidence.’
[7]
[21]
In the
Goldfields
Mining
case, the Labour Appeal Court in
considering the application of the
Sidumo
test in applying the provisions of section 145 of the Labour
Relations Act held the following:
‘
...
The constitutional standard of reasonableness is "suffused"
in the application of section 145 of the LRA. This implies
an
application for review sought on the grounds of misconduct, gross
irregularity in the conduct of the arbitration proceedings,
and/or
excessive powers will not lead automatically to a setting aside of
the award of any of the above grounds are found to be
present. 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 to which a reasonable
decision maker could come on the available material.’
[8]
[22]
In the circumstances and taking into
account the applicant’s grounds of review and the results of
the “applicant’s
examination of the [2
nd
respondent’s] findings and award” the simple test to be
applied is whether the decision of the second respondent conclusions
that the employees’ conduct did not justify dismissal and that
the dismissal was substantively unfair is a conclusion to
which a
reasonable decision-maker could not have come considering the
material placed before him.
[23]
I am not satisfied that the applicant has
established that its averments of so-called "gross
irregularities" or "misconduct"
are justified. Neither
can it be said that there is a latent irregularity in the second
respondent’s award (in the currently
accepted meaning thereof).
[24]
In
the SCA judgment in Herholdt the court held that
“
material
errors of fact”, or that the “weight and relevance to be
attached to particular facts, are not in and of themselves
sufficient
for an award to be set aside, but are only of any consequence if
their effect is to render the outcome unreasonable.”
[9]
[25]
In
this matter, the outcome of the arbitration is entirely reasonable.
The circumstances surrounding the employees’ actions
suggest
quite clearly that they amounted to all intents and purposes to
industrial action. That the applicant relied on a charge
of
insubordination as a basis for dismissing the employees simply
illustrates graphically the appropriateness of the second
respondent's
conclusion in his award that "in this present
situation is clear that the [applicant] acted hastily in dismissing
the workers
instead of addressing the identified issues”.
[10]
[26]
In the circumstances, I am satisfied that
the second respondent’s award is not reviewable in that the
applicant has not established
that it is a decision to which a
reasonable arbitrator could not come based on the material placed
before him.
[27]
As far as costs are concerned, the
respondents were at all times represented by their trade union. It is
therefore not necessary
to make an order of costs.
[28]
Accordingly, I make the following order:
The
applicant’s application is dismissed.
________________________
D H Gush
Judge
of the labour Court of South Africa
APPEARANCES
FOR THE APPLICANT:
Adv S Bernhardt
Instructed
by Yusuf Nagdee Attorney at Law
FOR
THE 3 and further RESPONDENTS: Martin
Modise Hicrawu
[1]
Bundle
of documents Volume 4 page 175.
[2]
2008
(2) SA 24 (CC).
[3]
(2009)
30 ILJ 2642 (SCA).
[4]
At
page 2650.
[5]
[2013]
11 BLLR 1074 (SCA).
[6]
[2014]
1 BLLR 20 (LAC).
[7]
At
paragraph 12.
[8]
At
paragraph [14] pages 24 – 25.
[9]
Paragraph
25.
[10]
Pleadings
page 62 Award para 6.90.