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[2014] ZALCJHB 194
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Chrome Field Security SA (Pty) Ltd v Ramadimala NO and Others (JR1665/11) [2014] ZALCJHB 194 (29 May 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no: JR1665/11
In
the matter between:
CHROME FIELD
SECURITY SA (PTY) LTD
Applicant
And
J.M RAMADIMALA N.O
First Respondent
COMMISSION FOR
CONCILIATION, MEDIATION
AND ARBITRATION
Second Respondent
TAWUSA obo G.A
MORAKA
Third Respondent
Heard:
12 July 2013
Delivered:
29 May 2014
Summary:
Award set aside due to process related unreasonableness
JUDGMENT
PONELIS,
AJ
Introduction
[1]
In the
matter before me the applicant applies for review of an arbitration
award, pursuant to the provisions of section 145 of the
Labour
Relations Act
[1]
(‘LRA’).
[2]
The award was issued by the first respondent (‘commissioner’),
pursuant to arbitration proceedings concerning the
fairness of the
dismissal of the third respondent (‘employee’) by the
applicant (‘company’).
[3]
In terms of the award the commissioner held that the employee’s
dismissal was both procedurally and substantively unfair
and ordered
the employee’s retrospective reinstatement, from the date of
dismissal, together with back pay.
[4]
The company
contends that the dismissal was fair and challenges the
commissioner’s findings of procedural and substantive
unfairness. For purposes of the present application the company
submits that the commissioner’s award (‘award’)
constitutes a defect, as contemplated in sections
145(2)(a)(i),145(2)(a)(ii) and 145(2)(a)(ii) of the LRA. In
particular, that
it is one that a reasonable decision maker could not
reach,
[2]
and that the
commissioner committed process related misconduct in reaching his
conclusions.
[3]
[5]
Before I proceed to analyse the commissioner’s findings, I set
forth the salient background facts as appear from the record.
Factual
background
[6]
During the arbitration the company was represented by a manager, Mr.
Edwin Venter (‘Venter’), who also testified
as a witness.
The company’s further witnesses were Mr. Jan Adriaan Roos
(‘Roos’), the company’s Director
of Personnel
Administration, and Ms. Elizabeth Legae (‘Legae’), who is
employed as Human Resources Assistant by the
company. The employee
was represented by a member of this trade union, Transport and Allied
Worker’s Union of South Africa
(‘union’). The
employee testified in person and a fellow employee, Mr. Levy
Molahlegi Kole (‘Kole’), further
testified on his behalf.
[7]
The employee was formerly employed as a constable security guard by
the company.
[8]
On 27 January 2010 a meeting took place between the company and the
union; during which the company was represented by, amongst
others,
Venter and Roos, and the union by, amongst others, the employee and
Kole. The primary purpose of the meeting was to discuss
the union’s
request for recognition of shop stewards.
[9]
It is common cause that during the course the meeting the company
agreed that the union could appoint part-time shop stewards.
During
the arbitration there was however a factual dispute concerning the
union’s further request for the recognition of
one full-time
shop steward. In this regard the employee’s version was that
the parties did agree on the appointment of a
full-time shop steward,
whilst the company contended that this was not the case.
[10]
The union’s members thereafter elected some seven part-time
shop stewards and, by letter dated 27 October 2010, the union
notified the company of the names of these persons, which included
the employee.
[11]
In the employee’s version he was thereafter elected as a
full-time shop steward and introduced as such to the company
at a
meeting held on 3 December 2010.
[12]
Sometime after 20 December 2010 the company received word from
Sergeant Major Abbey Mabote (‘Mabote’), who oversaw
posting of the company’s security personnel, that the employee
was not wearing his uniform and that he was unwilling to be
deployed
as a security guard. Mabote was then told to instruct the employee to
wear his uniform and to post him as a security guard.
A few days
later Venter became aware that the employee was still refusing to be
posted. Thereafter, Roos and Venter had a meeting
with the employee,
on 29 December 2010, during the course of which they instructed the
employee to attend to guarding duties at
a customer’s premises.
[13]
On 27 January 2011 a meeting convened between the company and the
union, during the course of which the company indicated that
they
intended to charge the employee for his failure to follow
instructions. The union undertook to furnish the company with
potential
dates for a disciplinary enquiry.
[14]
A disciplinary enquiry convened on 27 February 2011, which was
postponed because the employee had not been charged in advance
of the
enquiry.
[15]
A charge sheet was eventually issued on 3 March 2011, in terms of
which the employee was charged with gross insubordination
in that
from 29 December 2010 he had failed to follow the company’s
instructions to be placed at a customer’s site.
[16]
Another disciplinary enquiry was scheduled for 17 March 2011. The
employee and his union representative refused to participate
in the
hearing, although they remained in attendance, on the basis that the
company was precluded from proceeding with the hearing
since its
disciplinary code provides that the hearing must have been held
within five days of the alleged offence having come to
the company’s
attention.
[17]
Pursuant to the disciplinary enquiry of 17 March 2011, the employee
was dismissed on 22 March 2011.
Commissioner’s
finding or procedural unfairness
[18]
Clause 61 of the company’s disciplinary code provides:
‘
61
IN PREPARING FOR THE ENQUIRY THE FOLLOWNG SHOULD BE ENSURED:
1) The
employee should be given at least 48 hours written notice of the
pending enquiry.
2) The
hearing should be held
as soon as reasonably possible, preferably
within five (5) days of the alleged offence having come to the
employer’s attention
. The employer must inform the employee
of the alleged transgression within forty eight (48) hours of the
alleged transgression
being drawn to the employee’s attention.
3) The
hearing should only be postponed of special circumstances exist;
4) With
due to no.3, the hearing should not be postponed more than two (2)
times;
5)
Reasons for postponing the hearing must be substantiated by the
responsible person.’ (Emphasis added)
[19]
It is implicit in the commissioner’s reasons that he did not
hold the company accountable to convene a disciplinary enquiry
within
the specific time limits stipulated in clause 61(2) of the company’s
disciplinary code. The basis of the commissioner’s
finding of
procedural unfairness is that the company failed to convene the
enquiry within a reasonable time. In this regard the
following is
held in the award:
‘
27.
Under Procedural fairness I considered the applicant’s argument
that the Code of conduct
of the respondent had been violated, the
respondent’s admission to it and reason advanced by the
respondent for not complying.
I would be persuaded to agree with the
employer that before charging a union representative consultation
with the union is required,
however
I am failing to believe that
such process can take in excess of three months
. This
consultation does not take away the employer’s prerogative to
charge, inform the employee of the charges levelled against
him/her,
notify him/her on date, time and venue for the hearing. Therefore the
respondent should have charged, set a date and time
and notify the
applicant.
I do not see any reason which could have prevented the
respondent to exercise this prerogative within reasonable time limits
and in compliance with its codes.
28.
The respondent has its own disciplinary code and procedures, the
content of which referred
to above in paragraph 11 above, which I do
not intent to repeat. I have considered the reason advanced for
non-compliance and do
not find it justifiable.
29.
Departure from the procedures contained in the collective and
contractually binding procedures constitute procedural unfairness
.
I therefore find dismissal of the applicant procedurally unfair.’
(Emphasis added)
[20]
It is so that close to three months have lapsed between 29 December
2010, when the incident occurred, and 17 March 2011, when
the
disciplinary enquiry convened. The company did not tender any
evidence to explain its failure to take its first step in relation
to
a disciplinary enquiry before 27 January 2011. Also, the only
evidence that was tendered in respect of the period between 27
January 2011 and 3 March 2011, when the employee was charged, was to
the effect of an initial hearing that was scheduled for 24
February
2011, but which did not proceed because the company had failed to
charge the employee prior to the enquiry.
[21]
(Though not relevant for present purposes, I pause to note that the
company’s bundle of documents used at the arbitration
contains
several further documents pertaining to interactions between the
company and the union between 27 January 2011 and March
2011. It is
unclear why the company did not tender these documents into
evidence).
[22]
The commissioner’s conclusion that there was an unreasonable
delay was reasonable in relation to the evidence that was
tendered
during the arbitration.
[23]
However, there are two material issues that the commissioner failed
to take into consideration for purposes of the enquiry
into
procedural fairness. In the first instant, the commissioner failed to
consider that neither the employee nor the union at
any stage prior
to 17 March 2011 objected to a disciplinary hearing; either on the
basis on of clause 61(2) of the company’s
code, or at all.
Furthermore, there was no evidence to suggest that the employee was
prejudiced in having the charge against him
fully and fairly
determined as a result of the time delay in question.
Commissioner’s
finding of substantive unfairness
[24]
Item 7 of Schedule 8 to the LRA, Code of Good Practice: Dismissal
(‘Code of Good Practice’), provides:
‘
7
Guidelines in cases of dismissal for misconduct
Any person who is
determining whether a dismissal for misconduct is unfair should
consider-
(a)
whether or not the employee contravened a rule or standard regulating
conduct in, or of relevance to, the workplace; and
(b)
if a rule or standard was contravened, whether or not-
(i)
the rule was a valid or reasonable rule or
standard;
(ii)
the employee was aware, or could reasonably be
expected to have been
aware of the rule or standard;
(iii)
the rule or standard has been consistently applied
by the employer;
and
(iv)
dismissal was an appropriate sanction for the contravention
of the
rule or standard.’
[25]
On the basis of this provision the commissioner succinctly formulated
his approach to the question of substantive fairness
as follows:
‘
6.
There was no dispute regarding whether the instruction was given, and
therefore under
substantive fairness, I was to determine whether or
not the instruction was reasonable, and if reasonable to determine
whether
or not the reason for refusing to follow those instructions
are justifiable and as to whether or not dismissal is an appropriate
sanction under the circumstances.’
[26]
It is apparent that the commissioner accepted that it was common
cause that the company had given an instruction, which the
employee
failed to follow. Accordingly, the commissioner was not required to
make a determination for purposes of item 7(a) of
the Code of Good
Practice.
[27]
The commissioner therefore limited the enquiry into substantive
fairness to the matters indicated under item 7(b). On the issues
and
evidence before the commissioner, it was not required to consider
items 7(b)(ii) and 7(b)(iii). Accordingly, the commissioner
focused
the enquiry to the remaining matters listed in items 7(b)(i) and
7(b)(iv); i.e. whether the rule (instruction) was valid
or reasonable
and, if so, whether dismissal was an appropriate sanction.
[28]
I accept the commissioner’s aforementioned approach and
formulation of the overall enquiry into substantive fairness
as
rational and reasonable.
[29]
For purposes of the enquiry contemplated under item 7(b)(i) of the
Code of Good Practice; i.e. whether the rule (instruction)
was valid
or reasonable; the commissioner accepted that if the employee had
been appointed as a full-time shop steward, it would
follow that the
instructions that he must perform duties as security guard were not
reasonable. In this instance, the following
is stated in the award:
‘
31
I am required to consider whether or not the reason for failure to
obey the instruction is
fair and justifiable. In doing so I
considered that the applicant refused to be posted, as he allegedly
was a full-time shop steward
and therefore was supposed to work at
the office. I needed to establish whether or not the applicant was a
full-time shop steward.’
[30]
Consistent with the approach adopted be the commissioner, two
enquiries were implicit in his determination of whether the employee
had been appointed as a full-time shop steward. In the first instant,
it needed to be established whether the parties did agree
on the
appointment of a full-time shop steward, at the meeting of 27 January
2010. If so, it needed to be established whether the
agreement had
been implemented; i.e. whether the employee had been appointed as
full-time shop steward during the 3 December 2010
meeting.
[31]
The commissioner concluded as follows in respect of these issues:
‘
32.
The applicant’s version is that he was a full-time shop
steward. At a meeting, wherein Mr.
Roos was also present, they were
introduced to management as shop stewards and he was subsequently
elected as a full-time shop
steward. The respondent disputes this
version, however considering the testimony given by Mr. Roos
especially taking into account
that he does not remember anything
about the meeting, which it is alleged that he was present, I find it
difficult to accept the
respondent’s version.
33.
Mr. Roos contradicted himself, he could not articulate whether the
meetings took place and
he could not explain the agreements of those
meetings. His credibility as a witness cannot be trusted.
34.
I considered that the minutes of the meeting of the 3 December 2010
were not presented,
however the minutes of the meeting of the 27
January 2011, wherein the respondent argued that the matter
clarified, also does not
clarify the issues in dispute. The minutes
are poorly drafted and the meaning/intentions are unclear.
35.
On balance of probability, I find the applicant’s version, that
he was an elected
full-time shop steward and that he was not supposed
to have been posted, as the most probable.
36.
I therefore find the applicant’s dismissal substantively
unfair.’
[32]
In respect of the meeting of 27 January 2010, it is apparent from
paragraph 34 of the award that the commissioner considered
the
minutes of the meeting of 27 January 2010, on the basis of which the
company contended that the parties had not agreed on the
appointment
of a full-time shop steward. (In view of this context, it appears
that the commissioner’s reference to 27 January
2011, as
opposed to 27 January 2010, is a typographical error). The
commissioner concluded that it is not possible to find on the
basis
of those minutes whether the parties had reached agreement on the
appointment of a full-time shop steward.
[33]
The portion of the minutes of the 27 January 2010 meeting on which
the company relied during the arbitration, reads as follows:
‘
Recognition
:
·
Do the company recognise new shopsteward?
·
Company stated do recognise new shopsteward.
Resources
:
·
please want office
·
access to transport
·
telephone for
·
Company if majority will do this but must look in future
·
The shopstewards must continue with normal duties
·
Union must have 1 full time shopsteward.
·
Company agree to 1 shopsteward.
Union stated office,
transport, telephone one shopsteward.’ (Original emphasis)
[34]
Having regard to the minutes, the commissioner’s aforesaid
conclusion is reasonable in that it does not on face value
support
either party’s version.
[35]
However, it remained incumbent on the commissioner to determine
whether the parties did agree on the appointment of a full-time
shop
steward at the 27 January 2010 meeting. In this regard the
commissioner was duty bound to evaluate the evidence of the five
witnesses who testified at the arbitration; particularly because all
of them tendered evidence about the 27 January 2010 meeting
and, with
the exception of Legae, they were all present at that meeting. The
commissioner however only refers to the evidence of
Roos that he
could not remember the events of that meeting.
[36]
The commissioner’s failure to consider this material evidence
and to make a finding about the outcome of the 27 January
2010
meeting constitutes a serious flaw in his reasoning process.
[37]
A similar flaw appears in the commissioner’s reasons and
conclusion, in paragraphs 32 to 33 of the award, that during
the
meeting of 3 December 2010 the union did notify Roos, as
representative of the company, of the employee’s appointment
as
full-time shop steward. It is apparent that in this regard the
commissioner accepted the evidence of the employee and Kole.
He
further had regard to the fact that Roos did not have an independent
recollection of these events and that he could therefore
not dispute
the evidence of the employee and Kole.
[38]
The difficulty with this reasoning is that the commissioner failed to
take into account that the version of the employee and
Kole, about
what transpired at the meeting of 3 November 2010, had not been put
to any of the company’s witnesses during
cross-examination.
Furthermore, the commissioner misconstrued Roos’ testimony
about his failure to recollect the events in
question. – Roos
testified this in the context of the 27 January 2010 meeting; not in
respect of the 3 December 2010 meeting.
[39]
Since these issues were material in the commissioner’s finding
of substantive unfairness, it renders the finding reviewable.
Conclusion
[40]
In conclusion, the commissioner’s decision making process, in
reaching his respective conclusions of procedural and substantive
unfairness, is materially flawed because he disregarded relevant
evidence and considerations. Therefore, the commissioner committed
misconduct in the performance of his duties as an arbitrator, as
contemplated in section 145(2)(a)(i) of the LRA; as well as a
(latent) gross irregularity, as contemplated in section 145(2)(a)(ii)
of the LRA.
[41]
It is therefore appropriate to set the award aside. I am however not
satisfied that the interests of justice will be served
if a
determination of the fairness of the dismissal were to be made solely
on the basis of the record in its present form. Accordingly,
I make
no order substituting the award and remit the matter to the second
respondent for afresh determination before a different
commissioner.
[42]
Since the employee did not oppose the company’s review
application, save for filing a notice of opposition, I make no
order
as to costs.
Order
[43]
In the premises, I make the following order:
(i)
The arbitration award issued by the first respondent under
the second
respondent’s case number NWRB980-11, dated 6 June 2011, is set
aside.
(ii)
The third respondent’s dispute referral under the aforesaid
case number is remitted to the second respondent for determination by
a commissioner other than the first respondent.
(iii)
There is no order as to costs.
________________
PONELIS,
AJ
Acting
Judge of the Labour Court
APPEARANCES:
For the Applicant:
Mr. R.J.C Orton
Snyman Attorneys
For the Third
Respondent:
No appearance
[1]
66
of 1995
[2]
Sidumo
and another v Rustenburg Platinum Mines Limited and others
(2007) 28 ILJ 2405 (CC) at paras 106-110.
[3]
Southern
Sun Hotel Interests (Pty) Ltd v CCMA & others
[2009]
11 BLLR 1128
(LC) at para 17;
SA
Airways (Pty) Ltd v Blackburn & others
[2010] 3 BLLR 305
(LC) at paras 17–21.