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[2014] ZALCJHB 224
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Bidvest Steiner (Pty) Ltd v Nkgoeng NO and Others (JR235/12) [2014] ZALCJHB 224 (19 June 2014)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT
REPORTABLE
CASE
NO: JR 235 /12
IN
THE MATTER BETWEEN:
BIDVEST
STEINER (PTY) LTD
APPLICANT
AND
NKGOENG,
W N.O.
FIRST
RESPONDENT
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
SECOND
RESPONDENT
MARIO
COSSADIANOS
THIRD
RESPONDENT
Heard
:
15 January 2014
Delivered:
27 February
2014
Corrected:
19 June 2014
JUDGMENT
HAFFEGEE
AJ
Introduction
[1]
This is an application to review and set
aside an arbitration award made by the first respondent (“the
Commissioner”)
dated 27 December 2011 in which the dismissal of
the third respondent (“the employee”) was found to be
substantively
unfair. The Commissioner awarded the employee
compensation equivalent to four month’s remuneration being R127
800.
[2]
The applicant (“the company”)
employed the employee as a General Manager since 18 October 2007
until his dismissal on
19 October 2011.
[3]
The employee was charged with misconduct
because, the company alleged, he had not complied with lawful and
reasonable instructions
and had company policies and procedures not
to employ a direct and/or indirect family member.
[4]
The company's ethics policy contains a
clause that reads as follows:
‘
The
company due to the nature of its businesses has adopted the following
relationship policy:
a)
the company will not employ any direct or indirect family member of
any employee,
unless agreed to by the managing director.
[5]
The employee had acknowledged receipt and
acceptance of the company's ethics policy. Additionally, the company
had specifically
informed its employees in the past about the
importance of not employing family members by way of a memo, at a
conference and at
a meeting.
[6]
During February 2011, the employee employed
Mr R du Plessis who is married to the sister of the employee's
girlfriend. The company
alleges that this amounts to an indirect
family relationship because Mr du Plessis is akin to being the
employee’s sister-in-law.
The employee contends that this did
not amount to a direct or indirect family relationship.
Arbitration
award
[7]
The Commissioner identified the issue in
dispute to be whether Mr du Plessis was an indirect family member of
the employee. The
company policy does not define an indirect family
member. Accordingly, the Commissioner concluded that in the absence
of any definition
the meaning of “indirect family member”
should be ascribed its ordinary meaning and that any other meaning
would amount
to unilateral amendments and/or a change of the company
policy.
[8]
The Commissioner found that the
relationship between the applicant and his girlfriend did not amount
to be a family relationship.
He concludes that on the balance of
probabilities the company had failed to discharge the onus to prove
that the applicant was
guilty of the charges of misconduct and that
the dismissal of the employee was substantively unfair.
[9]
He did not award re-employment or
reinstatement of the employee because the employee did not wish this.
Accordingly, he awarded
compensation that he considered just and
equitable.
Grounds
of review
[10]
In its founding affidavit, the company
cites numerous broad and generalised grounds of review without
substantiation.
[11]
In its heads of argument and that the
hearing of the matter, the main ground of review appears to be that
the Commissioner had ignored
the purpose of the policy: namely, to
ensure objectivity and to preserve the [company's] culture of
integrity and honesty.
[12]
The Commissioner is also alleged to have
ignored the evidence that the reason for the policy was to prevent
any conflict between
employees, inconsistency in decision-making,
favouritism and nepotism. Further, the Commissioner is alleged to
have ignored the
evidence that the employee had previously been
remanded for having a personal relationship with a fellow employee
and that the
employee therefore knew that the appointment of a family
member of his girlfriend was wrong.
Evaluation
[13]
The
company has extensively set out the test for review as established by
the Constitutional Court and subsequently further developed
by the
Labour Appeal Court. The company emphasised that an award is
reviewable if a Commissioner failed to apply his mind to materially
relevant facts or considerations so that the Commissioner ‘commits
an act of dialectical unreasonableness’. The latter
may also be
described as process-based unreasonableness as the Commissioner is
alleged to have committed a (latent) gross irregularity
by failing to
apply his mind to material relevant considerations
[1]
.
[14]
The company focus has been on the purpose
of the rule and in doing so has not fully addressed the issue about
the existence of the
rule and the Commissioner’s interpretation
of the rule. Indeed, the company contends that the Commissioner
became fixated
on the definition of “family member” and
had adopted an overly technical approach.
[15]
The Commissioner had considered the rule
and concluded that the employee was not guilty of misconduct because,
according to him,
the rule that he was alleged to have breached, did
not exist. I cannot fault the Commissioner’s reasoning. The
Labour Relations
Act requires him, in considering whether an employee
is guilty of misconduct, to establish the breach of a valid rule. I
do not
agree that he acted in an overly technical manner. He did not
act unreasonably in concluding that the ordinary meaning or “family
member” ought to be ascribed to the rule; that doing otherwise
would amount to amending the rule; and that the definition
of “family
member” did not include the husband of the sister of the
employee’s girlfriend.
[16]
Did the Commissioner commit a gross
irregularity by failing to apply his mind to the purpose of the rule
that the employee is alleged
to have breached? I do not consider the
Commissioner to have done so. The company contends that he ought to
have considered the
purpose of the rule in interpreting it. The
Commissioner clearly considered attributing another meaning to the
rule would amount
to amending the rule. Once he concluded the rule
not to apply and therefore not to have been breached he did not have
to consider
the purpose of the rule.
[17]
While the purpose of the rule may be
commendable, the company does not say why it had not amended the rule
specifically to include
a prohibition on employing any persons that
would serve to undermine the purpose of the rule. The purposes for
which the company
contends the rule exists would apply equally, for
instance, to close friends. The rule, as phrased, cannot be
interpreted to include
close friends even though one may argue that
the purpose would be to prohibit the employment of close friends. An
interpretation
relying on the purpose of the rule would be stretching
matters. The company ought to have amended the rule to widen it so
that
it applied to the employment of anyone which may result in bias,
favouritism, conflict or inconsistency.
Conclusion
[18]
It is not the correctness of the
commissioner’s decision that is relevant but whether the result
of the arbitration proceedings
is reasonable. I find the decision of
the commissioner that the dismissal of the employee was substantively
unfair was a reasonable
one on the basis of the evidence available to
him.
[19]
In the circumstances,
I find that the
conclusion reached
by the commissioner was justifiable in relation to the evidence
before him and that the arbitration award must
stand. The application
to review and set aside the arbitration award, accordingly, fails.
Order
[20]
Accordingly, I make the following order:
1.
The application to review and set aside the
arbitration award made by the first respondent under the auspices of
the second respondent
under case number MP 7589 – 11 dated 27
December 2011 is dismissed.
2.
Each party is to pay its own costs.
_______________________
Haffegee AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES
For
the Applicant:
Mr A Postuma
of Snyman Attorneys
[1]
SA
Airways (Pty) Ltd v Blackburn and Others
[2010]
3 BLLR 305
(LC)