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[2014] ZALCJHB 216
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Coca-Cola Shanduka Beverages SA (Pty) Ltd v Mgiba and Others (JR1087/12) [2014] ZALCJHB 216 (19 June 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT
REPORTABLE
CASE
NO: JR 1087/12
In
the matter between:
COCA-COLA
SHANDUKA BEVERAGES
SA
(PTY) LTD
APPLICANT
and
VINCENT
MGIBA
FIRST
RESPONDENT
NOMUSA
MBHELE
N.O
SECOND RESPONDENT
COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION
THIRD
RESPONDENT
Heard:
17 December 2013
Delivered:
19 June 2014
JUDGMENT
Nkutha AJ
Introduction
[1]
Coca-Cola Shanduka Beverages (Pty) Ltd
[“applicant”] seeks an order
reviewing and setting aside the arbitration award issued by Ms N
Mbhele [“commissioner”]
on 4 April 2012 under case number
GAJB 6217-12. In terms of that arbitration award, the
commissioner found the dismissal
of Mr Vincent Mgiba [“first
respondent”] to be substantively unfair. She then ordered the
applicant to reinstate the
first respondent with effect from 30 April
2012 and pay him R20 291.32 compensation.
[2]
This application was opposed only by the
first respondent.
Background facts
[3]
The first respondent had been in the employ
of the applicant since 28 July 2008 as acting team leader earning
basic salary of R10 145.66
per month. He was charged and
subsequently dismissed for the following acts of misconduct:
“
(ii)
Putting the company into disrepute by failure to honour your duties
as an employee
in being loyal to the Company in all dealings
whatsoever relating to company business and interest thus resulting
in conflict of
interest in your employ as an employee of CCSB;
(iii)
Failure to follow company procedure as a means to redress
dissatisfaction, thus exposing
interest to the litigation that could
harm CCSB; and
(iv)
Breaking the trust relationship in that,
your role as an Acting Team Leader is entrusted with management
of
company assets and affairs which is currently contradicted by lack of
goodwill, onerous duty and reasonableness that should
promote CCSB’s
interest.”
[4]
Most of the background facts are common
cause between parties. During April 2009 the applicant, as part of
employee empowerment
programme, issued a tender for provision of
cleaning services and accordingly invited all its employees,
including the first respondent.
[5]
The first respondent partnered with a third
party, E- Chemie, a private company which had no relations with the
applicant at that
time. The first respondent’s partnership was
approved by the applicant. Their tender documents were
submitted to the
Group Procurement Manager, Mr Juan Dercksen
[“Dercksen”] and Mr Robert Davies, Group Logistics
Manager, negotiated
the deal with the first respondent and E-Chemie
until they reached an agreement. On 20 August 2009 the applicant
verbally informed
the first respondent that they were successful
bidders and were given an unsigned copy of the agreement with the
terms for the
rendering of cleaning services.
[6]
Despite a promise that the said agreement
would come to effect on 1 September 2009, it was never enforced due
to reasons that are
not relevant for the determination of the issues
before this Court. However, I must mention that the first respondent
would have
resigned from the applicant’s employ had the
applicant signed and enforced the cleaning service contract.
[7]
In 2010, almost a year later, the first
respondent wrote emails to Dercksen, copying the Human Resource
Director and the Managing
Director, wherein he requested the
implementation of the agreement. When there was no response from the
procurement unit he had
been dealing with throughout the process, he
escalated the matter to the Managing Director. The Managing Director
gave bare assurances
which did not remedy the alleged repudiation.
[8]
The first respondent and E-Chemie decided
to institute legal proceedings. On 15 September 2011 their attorneys
of record in the
civil matter served the applicant with a
letter wherein it was put
in mora
and thereby demanded specific performance. The said letter led to the
suspension and subsequent disciplinary hearing which, as
alluded to
above, resulted in the first respondent’s dismissal on 27
February 2012.
Grounds for Review
[9]
The applicant contended that the
arbitration award was reviewable based on the grounds summarised as
follows, in that the commissioner:
(i)
failed to apply the appropriate test in evaluating the evidence
before her and by improperly drawing inferences which were
not
supported by facts;
(ii)
misdirected herself by failing to apply her mind to the issues which
she was called upon to decide;
(iii) misdirected herself
by failing to give due weight and/or ignoring relevant evidence
relating to the conduct of the first respondent
which broke the
employer/employee relationship;
(iv) misdirected
herself as to the nature of the dispute and has issued an award that
failed to take into account the direct
evidence that was adduced
before her corroborated by document proof;
(v) committed a
gross irregularity in the conduct of the arbitration hearing; and/or
(vi) the
commissioner’s award should be reviewed in terms of the broader
grounds envisaged in
section 158(1)(g)
of the
Labour Relations Act 66
of 1995
as amended [“the Act”].
Legal
Principles and Analysis
[10]
It
is incumbent upon the Court to establish whether or not there is a
prima
facie
case to interfere with the arbitration award on review.
Section 145
of
the Act provides limited grounds for review and is suffused by the
constitutional standard of reasonableness.
[1]
In essence, the applicant must show that the decision reached by the
CCMA commissioner is one which a reasonable decision maker
could not
reach.
[2]
[11]
The
reasonableness standard was dealt with in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
[3]
as discussed further in
Sidumo.
[4]
The
Labour Appeal Court further contextualised this approach in
Ellerine
Holdings Ltd v CCMA and Other
[5]
and subsequently avowed in
CUSA
v Tao Ying Metal Industries and Others
[6]
where the court held that:
“
It
is by now axiomatic that a commissioner is required to apply his or
her mind to the issues properly before him or her. Failure
to do so
may result in the ensuing award being reviewed and set aside.
Recently, in Sidumo, the matter was put thus:
“
It
is plain from these constitutional and statutory provisions that CCMA
arbitration proceedings should be conducted in a fair manner.
The
parties to a CCMA arbitration must be afforded a fair trial. Parties
to the CCMA arbitrations have a right to have their cases
fully and
fairly determined. Fairness in the conduct of the proceedings
requires a commissioner to apply his or her mind to the
issues that
are material to the determination of the dispute. One of the duties
of a commissioner in conducting arbitration is
to determine the
material facts and then to apply the provisions of the LRA to those
facts in answering the question whether the
dismissal was for a fair
reason. In my judgment, where a commissioner fails to apply his or
her mind to a matter which is material
to the determination of the
fairness of the sanction, it can hardly be said that there was a fair
trial of issues.”
[7]
Application of
Legal Principles
[12]
The crux of the applicant’s case is
that the first respondent, by supporting his business partner,
E-Chemie, in litigating
against it, committed a gross misconduct
because of conflict of interest and the detrimental effect to its
reputation. However,
the commissioner found that the subject
matter of that litigation fell outside of the purview of employment
relationships and that
in the absence of a clear procedure to deal
with it internally; the first respondent was entitled to deal with
that matter externally
as he did.
[13]
The applicant’s counsel persisted
with the above argument and submitted that the launch of civil
proceedings by the first
respondent was for mere ‘personal
pecuniary gains’ to the applicant’s detriment because of
the serious nature
of the allegations canvassed in the particulars of
claim. He, however, correctly conceded that, like any litigant, the
applicant
is entitled to robustly vindicate his rights in a court of
law without fear of being victimised or dismissed.
[14]
It is common course between the parties
that the applicant entered into an agreement with the first
respondent and its partner consequent
to a tender that was
specifically initiated to benefit employees. It is, therefore, mind
boggling as to how the first respondent
could have vindicated his
rights without approaching Court when Dercksen and the MD obviously
failed to attend to the tender dispute
internally and, moreover, in
the absence of any other internal procedure at his disposal as a
party to a business contract and
not an employee.
[15]
I am convinced that the commissioner
succinctly dealt with evidence before her and made a rational
decision. It is also clear from
her analysis of evidence that the
applicant did not challenge the first respondent’s evidence
that he had been a diligent
performer since 2009; that the dispute
about the cleaning services tender and the subsequent litigation did
not affect the trust
relationship. Therefore, the conduct of the
commissioner is beyond reproach.
[16]
Seemingly,
the applicant’s main bone of contention is that the
commissioner came to a wrong decision, which presupposes an
appeal as
opposed to a review. In
Bestel
v Astral Operations Ltd & Others
[8]
the Labour Appeal Court, accentuating the distinction between appeal
and review, held that:
“…
the
ultimate principle upon which a review is based is justification for
the decision as opposed to it being considered to be correct
by the
reviewing court; that is whatever this Court might consider to be a
better decision is irrelevant to review proceedings
as opposed to an
appeal. Thus, great care must be taken to ensure that this
distinction, however difficult it is to always maintain,
is
respected.”
[17]
Accordingly, the commissioner’s
arbitration award constitutes a reasonable
finding and I find no reason to set it aside.
Order
[18]
In the premises, the application is
dismissed with costs.
Nkutha AJ
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant: PL Mokoena SC
Instructed
by: Mchunu Attorneys
For
the First Respondents: Mabaso Attorneys
[1]
Sidumo
& Another v Rustenburg Platinum Mines Ltd & Others
(2007)
28 ILJ 2405 (CC) at para108
[2]
Above
n 2 at para 107 to 109.
[3]
2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC).
[4]
Above
n 2.
[5]
(2008)
29 ILJ 2899 (LAC) at 2905G-I.
[6]
[2009]
1 BLLR 1
(CC) at para 76.
[7]
Above n 2 at para 267.
[8]
[2012]
4 BLLR 334
(LAC) at para 18.