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[2014] ZALCCT 7
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Food and Allied Workers Union and Others v Rainbow Farms (Pty) Ltd and Others (C65/12) [2014] ZALCCT 7 (29 January 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
CASE
NO C 65/12
NOT
REPORTABLE
In
the matter between:
FOOD
AND ALLIED WORKERS
UNION FIRST
APPLICANT
Z NEWU AND
OTHERS SECOND
AND FURTHER APPLICANTS
and
RAINBOW
FARMS (PTY) LTD
1
ST
RESPONDENT
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
2
ND
RESPONDENT
N
ABRAHAMS N.O
3
RD
RESPONDENT
Application
heard: 23 October 2013
Judgment
delivered: 29 January 2014
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
This is an application to review and set aside parts of an
arbitration award made by the respondent, to whom I shall refer as
‘the arbitrator’. The proceedings under review were
conducted in terms of s 188A of the Labour Relations Act, 66 of
1995
(the LRA), which enjoys the unfortunate but in this case prescient
heading ‘Agreement for pre-dismissal arbitration’.
The
purpose of s 188A is to permit allegations of misconduct made against
employees to be tested by a process of statutory arbitration,
bypassing domestic disciplinary procedures. Although these
proceedings were initiated as a single review, there are three
separate
cases in issue. They all emanate from an agreed procedure in
terms of which the arbitrator conducted consecutively a number of
hearings into allegations of misconduct made against the second and
further applicants following a strike at the first respondent’s
premises in Worcester in June 2011. Those parts of the award that are
sought to be reviewed and set aside relate to the dismissal
of Z Newu
and 13 others, Allen Rose Skafungana and Chrispan Melite.
The
applicable legal principles
[2]
I propose to discuss the applicable legal principles and thereafter
to assess each case on its merits. The test to be
applied in
any review of a decision made by an arbitrator in terms of s 188A is
that which applies to a review of an award issued
under s 145. That
test was enunciated by the Constitutional Court in
Sidumo v
Rustenburg Platinum Mines Ltd
(2007) 28 ILJ 2405 (CC) and
recently affirmed by the Supreme Court of appeal in
Herholdt v
Nedbank
(2013) 34 ILJ 2795. In the latter judgment the court
summarised the position as follows:
‘
[25]
In summary, the position regarding the review of CCMA awards is this:
A review of a CCMA award is permissible
if the defect in the
proceedings falls within one of the grounds in s 145 (2) (a) of the
LRA. For a defect in the conduct of the
proceedings to amount to a
gross irregularity as contemplated by s 145 (2) (a) (ii), the
arbitrator must have misconceived the
nature of the inquiry or
arrived at an unreasonable result. A result will be unreasonable if
it is one that a reasonable arbitrator
could not reach on all the
material that was before the arbitrator. Material errors of fact, as
well as 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.’
[3]
In the present instance, the applicants do not contend that the
arbitrator misconceived the nature of the enquiry. To the extent
that
they rely on a gross irregularity in the form of material errors of
law or fact (or the weight or relevance to be attached
to particular
facts), is approach to be adopted is the following:
a.
Those errors, if demonstrated, are not in and of themselves
sufficient to warrant interference. They are only
of any consequence
to the extent that their effect renders the decision under review
unreasonable.
b. The
fundamental enquiry remains whether the outcome of the proceedings
(i.e., the arbitrator’s decision
on the existence of any
misconduct, or an appropriate sanction for that misconduct, or both)
falls within a band of decisions to
which a reasonable decision-maker
(presumably a fictional reasonable arbitrator) could come on the
available material.
[4]
In
Goldfields Mining South Africa (Pty) Ltd v
CCMA
(JA
2/2012, 4 November 2013) the Labour Appeal Court confirmed that the
applicable test does not admit what has been referred to
as a
“process-related review”, at least in the sense that it
is no longer open to a reviewing court to set aside an
arbitration
award only on account of a process- related irregularity on the part
of the arbitrator. This has the consequence that
the failure by an
arbitrator to mention a material fact in the award, or to deal with
any issue that has a bearing on the issue
in dispute, or any error in
regard to the evaluation of the facts presented at the arbitration
hearing, is of no consequence. Provided
that the arbitrator gave the
parties a full opportunity to state their respective cases at the
hearing, identified the issue that
he or she was required to
arbitrate, understood the nature of the dispute and dealt with its
substantive merits, the function of
the reviewing court is limited to
a determination whether the arbitrator’s decision is one that
could not be reached by a
reasonable decision-maker on the available
material.
[5]
I turn to deal in turn with each element of the application.
Chrispan
Melite
[6]
Chrispan Melite was charged with throwing a petrol bomb at a truck
carrying live birds on 14 June 2011, alternatively, attempted
assault
in that he endangered the life of the driver of the truck. He was
also charged with intimidation, by preventing non-striking
employees
from attending work and preventing busses from entering the first
respondent’s premises.
[7]
The arbitrator found that Melite had thrown the petrol bomb at the
truck, with the intention of causing damage to the first
respondent’s
property. He was also found to have prevented employees from
tendering their services, by placing rocks in front
of a bus
transporting non-striking employees to the first respondent’s
plant. The arbitrator considered that the misconduct
committed by
Melite was sufficiently serious to warrant dismissal, and ordered
that Melite be dismissed.
[8]
The applicants contend that the arbitrator’s decision in
relation to the throwing of the petrol bomb is reviewable on
the
basis that the arbitrator failed to apply the cautionary rule
applicable the case of a single witness. In relation to the second
charge, the applicants do not seriously dispute the substance of the
charge, but contend that the sanction of dismissal was too
harsh.
[9]
Turning first to the charge of throwing a petrol bomb at the delivery
truck, what is at issue is whether the evidence that served
before
the arbitrator was sufficient to identify Melite as the perpetrator.
In the founding affidavit, it is contended that the
evidence was
insufficient to sustain that conclusion, in particular because
Wolhuter claims to have recognised Melite, ‘someone
that he had
seen for the first time on that day and through a mirror.”
[10]
The arbitrator was required to make a finding as to the
identification of Melite, on a balance of probability. The cautionary
rule that applies to single witness evidence generally finds
application in criminal trials. As 188A arbitration is not a criminal
trial. The arbitrator was not required to apply any formal rule
relating to single witnesses – she was required to assess
the
totality of the evidence before him and draw conclusions based on the
probabilities. Even if the cautionary rule did apply
and the
arbitrator failed to apply it properly or at all, this court is
entitled to interfere with the arbitrator’s conclusion
only if
it is unreasonable in the sense referred to above. To the extent that
the applicants contend that Wolhuter’s evidence
was limited to
what he had seen through a rear view mirror, this is simply
incorrect. Wolhuter testified that he saw Melite run
past the front
of the truck and then to the back of the vehicle, when he was visible
in his side mirror. He specifically stated
that he clearly saw
Melite’s face as he passed in front of the truck, and that he
‘concentrated one hundred percent
on him.’ It is common
cause that Melite was wearing black. Wolhuter said that there may
have been a red stripe in his jacket,
but conceded that there may not
have been a red stripe in the black top or pants. But Wolhuter’s
recollection of having seen
clearly Melite’s face and his
ability to identify him in the arbitration hearing was not seriously
called into question.
[11]
In short, there is nothing in the record to indicate that the
arbitrator misconceived the nature of the enquiry, or in the
language
of
Goldfields,
that he failed to give the parties a full
opportunity to state their respective cases at the hearing,
identified the issue that
he or she was required to arbitrate,
misunderstood the nature of the dispute or failed to deal with its
substantive merits.
Given the evidence before the arbitrator,
the result reached cannot be said to be unreasonable in the sense
explained in
Sidumo
.
[12]
Turning next to the challenge to the sanction of dismissal, the
Sidumo
approach requires the court to defer to the arbitrator,
whose function it is to determine a fair sanction for any act of
misconduct
that has been established by the evidence. The court is
entitled to intervene if and only if the sanction that the arbitrator
consider
fair in all the circumstances falls outside of a band of
decisions to which reasonable decision makers could come on the
evidence.
The court is not entitled to interfere only because it
would have imposed a different (less severe) sanction, or because it
considers
the sanction to be unduly harsh. It follows, as the Labour
Appeal Court has observed and as the conclusion reached by the
Constitutional
Court on the facts of
Sidumo
demonstrates, that
the scope for interference in decisions on sanction is very narrow.
[13]
In the present instance, the arbitrator, set out the factors to be
taken into account, and specifically records that Melite’s
clean disciplinary record and 12 years’ service were taken into
account in the assessment of a fair sanction. Against those,
the
arbitrator took into account the breakdown in the trust relationship,
the fact that Melite had failed to respect the rights
of those
employees who had elected not to participate in the strike, and the
serious implications of his conduct.
[14]
In my view, the sanction of dismissal for the conduct that forms the
subject of the second charge against Melite is not one
that is so
unreasonable that it stands to be set aside. There is therefore no
basis to interfere with the arbitrator’s decision.
Allen
Rose Skafungana
[15]
Rose Skafungana was charged with intimidation and/or assault in that
she prevented non-striking employees from attending work
by
threatening them with physical harm. Four witnesses testified
in
camera
against Skafungana, identified as witnesses D, E F and G.
Their evidence is summarised in the arbitration award, and I do not
intend
to repeat it here. It is sufficient to note that the witnesses
had gone to their employer’s office to resolve pay queries
when
Skafungana and others told them to join the strike and not to return
to the plant. Skafungana told them that if they left
the plant, they
would not be permitted to return. The video evidence produced
at the arbitration hearing supports the version
of the witnesses, and
contradicts Skafungana’s averment that she had made a joke.
[16]
Skafungana’s version was in effect a denial of the allegations
made against her, and an averment that the words she uttered
on the
video recording were taken out of context.
[17]
The arbitrator recorded that she was faced with two conflicting
versions, and dealt with the dispute of fact principally on
account
of the video footage which contradicted Skafungana’s version
regarding what she had said, and that she had made a
joke. The
arbitrator found further that there was no reason to question the
veracity of the four witnesses who had testified that
Skafungana had
prevented them from going to work, and that she had disrupted the
first respondent’s workplace. On the second
charge, the
arbitrator gave Skafungana the benefit of the doubt in the allegation
that she had threatened to burn down witness
C’s house, but
found her guilty of intimidation on the basis of her statement to C
that she ‘would be in her hands
if she reported for work’.
[18]
In relation to sanction, the arbitrator applied the
Sidumo
approach and considered Skafungana’s clean record and nine
years’ service. On the other hand, the arbitrator considered
that Skafungana had been found guilty of serious misconduct, and had
failed to respect the rights of non-striking employees. In
these
circumstances, the arbitrator considered that dismissal was the only
appropriate sanction.
[19]
The arbitrator’s decision is sought to be reviewed on the basis
that the evidence against Skafungana is insufficient
to sustain the
arbitrator’s finding that Skafungana had committed an act of
serious misconduct. In the case of witness C,
the applicants concede
that the words uttered by Skafungana are ‘arguably
intimidating’, but contend that in the absence
of actual
assault, no reasonable decision maker could have found Skafungana
guilty of this offence.
[20]
There is nothing in the record to indicate that the arbitrator failed
to meet the threshold established by the
Goldfields
judgment.
The evidence before the arbitrator is sufficient to sustain the
result – i.e. the finding that Skafungana was guilty
of
intimidation, in the sense that the result reached cannot be said to
be so unreasonable that no decision- maker could reach
it on the
available material.
[21]
In so far as the applicants attack the sanction imposed by the
arbitrator on account of its severity, the scope of this court’s
right to interfere in a decision on sanction for proven misconduct is
set out above. The question is not whether the sanction of
dismissal
was severe or overly harsh in all the circumstances, or whether this
court would have imposed a different penalty in
the circumstances.
The challenge against the penalty of dismissal can succeed if and
only if it is so unreasonable that a reasonable
decision maker could
not have imposed the same sanction on the basis of the evidence.
A failure to respect the rights
of non-striking employees is an act
of serious misconduct, especially when assumes the form of threats.
Employees who elect not
to participate in a strike are entitled to
continue working without threats to their physical integrity, and
without fear of reprisals.
Any employee who by words or conduct
compromises that right would ordinarily risk dismissal. For the
reasons reflected above, I
cannot find that dismissal is a sanction
that falls outside of a band of decisions to which a reasonable
decision-maker might come
on the available material.
Zolani
Newu and 12 others
[22]
The employees were charged with intimidation and/or assault in that
during the strike, they prevented non-striking employees
from
attending work by threatening them with physical harm. All of them,
except Kenneth Sibiya, were also charged with throwing
stones at the
police and non-striking employees. Zolani Newu was also charged with
beating non-striking employees with a knobkerrie,
and throwing a
stone at a bus transporting employees to and from work.
[23]
The arbitration award records the evidence of Denis Dalton, a
security manager. He testified that on 15 June 2011, at about
08:50,
he saw a group of striking employees approaching the first
respondent’s plant where Capacity employees were entering
the
plant. The group was waving sticks and clubs and shouting abuse at
the police and non-striking workers. He called the SAPS.
When they
arrived, the group began to throw stones at them. The SAPS fired
buckshot at the group. Gerhard Robberts, the operations
manager for
Capacity testified that the observed striking employees leave the
designated picketing area and move toward the Capacity
employees. He
saw the group picking up stones and throwing stones at the Capacity
employees. Robberts heard the SAPS warn the striking
employees, and
then heard shots. Robberts’s evidence was that the striking
employees were aggressive, and that he feared
for his life. The
witnesses for the applicants, Kelkeletso Timati and Sonwabile Dondolo
did not dispute leaving the designated
picketing area. They denied
any aggressive behaviour, intimidation or assault, denied that any of
the applicants had thrown stones,
and could not understand why the
SAPS called in reinforcements or opened fire. Their intention had
been to address concerns with
the police commander.
[24]
The arbitrator found that the first respondent’s witnesses were
clear, consistent and reliable, and consistent with the
video
footage. The approach by the group was clearly ‘forceful and
aggressive’, and showed stones being thrown before
any response
by the SAPS. For this reason, the arbitrator accepted the first
respondent’s version, and rejected that of the
applicants.
[25]
In her award, the arbitrator refers to Grogan
Dismissal
and
the application of the common purpose doctrine to the determination
of misconduct in employment-related cases. The arbitrator
found that
the applicants had associated themselves with the misconduct of the
group, a group that had moved from a designated
picketing area toward
non-striking employees and the SAPS, an event immediately followed by
stones being thrown by and shots fired
by the SAPS. The arbitrator
concluded that the conduct of the applicants was clearly designed to
intimidate the non-striking employees
and to prevent them from
tendering their services. The applicants were accordingly found
guilty on the charge of intimidation.
[26]
The primary attack in these proceedings is directed at the
arbitrator’s application of the doctrine of common purpose.
In
particular, the applicants contend that there are no specific
findings regarding the conduct of particular individuals and the
absence of any finding that any of the applicants associated
themselves with individuals found to have committed specific acts
of
violence. The applicants also contend that there was
insufficient evidence regarding the conduct of the group as a whole
to sustain any finding of acts of violence committed by the group. An
alternative and more plausible explanation, the applicants
contend,
is that the shots were fired by the SAPS because they and the
applicants were in disagreements about where the applicants
should be
picketing. Principally on this basis, the applicants contend that the
arbitrator committed errors of fact and law and
failed properly to
apply her mind to the question of whether the applicants had
committed acts of violence.
[27]
It follows from the summary of the applicable legal principles above
that the relevance of any mistake of law or fact is limited
to the
extent to which they render the outcome of the proceedings
unreasonable. If that outcome is capable of being sustained
irrespective of the arbitrator’s conduct or reasoning, then it
must be sustained.
[28]
It is common cause that the applicants were part of the group that
marched and the non-striking employees and the SAPS. It
is also
common cause that the group left the designated picketing area and
carried sticks and knobkerries as they marched. The
evidence that the
group conducted themselves aggressively as they advanced on the
non-striking employees and the SAPS was not seriously
called into
question, and is clearly reflected on the videotape. In my view, that
in itself is an act of serious misconduct. The
applicants chose to
leave the area that was designated for the purpose of picketing when
they saw the Capacity employees being
brought to the plant. Their
clear intention was to prevent the employees from working. Deliberate
breaches of picketing rules may
have become so common so as to
characterise South African industrial relations life, but that does
not mean that they are acceptable.
Picketing rules exist for a
purpose, and are integral to the peaceful exercise of the right to
strike. An integral element of picketing
rules is the respect that
striking employees are required to show towards those who elect not
to participate in the strike. When
striking employees breach
picketing rules, they disrespect others, especially when that
disrespect is directed against those who
wish to work. When striking
employees breach picketing rules, and especially when they engage in
conduct that is designed to threaten
those who not to participate in
the strike, they can expect to be disciplined.
[29]
In other words, irrespective of any application of the doctrine of
common purpose in relation to the act of throwing stones,
the
evidence discloses an act of serious misconduct on each of the
applicants that participated in the march from the designated
picketing area toward the non-striking employees. In any event, the
labour courts have long recognised that individual employees
may
legitimately be dismissed on account of the actions of a group of
which they are part, and that it is not necessary to establish
one or
more acts of misconduct by each member of the group for that
consequence to be sustained. (See, for example,
Foschini Group v
Maidi & others
[2010] 7 BLLR 689
(LAC)). This is not to apply
any criminal law test relating to common purpose; it is a principle
that recognises that for the purpose
of the maintenance of discipline
in the workplace, in certain circumstances, responsibility for the
collective conduct of a group
is indivisible.
[30]
In short, the evidence before the arbitrator is sufficient to sustain
the reasonable conclusion that the applicants had committed
an act of
serious misconduct, and that their dismissals were a reasonable
response to that misconduct.
Costs
[31]
Section 162 of the LRA confers a broad discretion on the court to
make orders for costs according to the requirements of the
law and
fairness. In the exercise of its discretion, the court must take into
account all relevant facts and circumstances. In
the present
instance, the applicants have failed in their bid to have the
arbitrator’s award reviewed and set aside. On the
other hand,
the parties are clearly in a collective bargaining relationship, a
factor that this court will often take into account,
especially where
an ongoing relationship might be compromised by an order for costs.
In the present instance, I cannot ignore the
conduct by the second
defendant applicants that formed the basis of the arbitration
proceedings, and of the arbitration award under
review.
Strike-related violence is endemic in South Africa. It is appropriate
for this court to indicate its displeasure at the
fundamentally
disrespectful conduct of the second to further respondents by
ordering the applicants to bear the first respondent’s
costs.
Costs orders of this nature will obviously not serve in any absolute
sense to prevent violence, intimidation and the like
on picket lines
or in circumstances where picketing rules are breached. But they may
go some way to preventing a recurrence of
the events that form the
basis of these proceedings, and of encouraging employees’
representatives to ensure that their members
conduct themselves in a
peaceful manner.
I
make the following order:
1
The application is dismissed.
2
The applicants are to pay the costs of the application,
jointly and
severally, the one paying the other to be absolved.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
For
the applicants: Adv C Kahanovitz SC, with him Adv instructed by
Cheadle Thompson and Haysom Inc.
For
the first respondent: Adv M Nel, instructed by MacGregor Erasmus
Attorneys