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[2014] ZALCCT 21
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Rossouw t/a Rossouw v CSAAWU obo Swartz and Others (C693/2013) [2014] ZALCCT 21 (7 March 2014)
IN THE LABOUR COURT OF
SOUTH AFRICA
(HELD
AT CAPE TOWN)
CASE
NUMBER
: C693/2013
DATE
:
7 MARCH 2014
In
the matter between:
J
F ROSSOUW t/a ROSSOUW BOERDERY
Applicant
and
CSAAWU
obo ANDRIES SWARTZ
First
Respondent
CCMA
Second
Respondent
COMMISSIONER
V
LANDU
Third
Respondent
J
U D G M E N T
STEENKAMP,
J
:
[1] This is an
application to have an arbitration award by Commissioner Vusumzi
Landu, dated 24 July 2013, reviewed and set aside.
[2]
The facts leading to the dismissal of the applicant, Mr Andries
Swartz, are depressingly familiar in the rural areas of this
country. The
dramatis personae
are farm workers, working on a farm belonging to the respondent, J F
Rossouw Boerdery. As so often happens in that community,
the
dispute has its genesis in alcohol abuse over a weekend.
[3]
What followed is an incident where the employee, Mr Swartz, took
offence to comments made by one Hester Krotz who insulted Swartz’s
wife in the course of another altercation between two female
employees (Krotz’s mother, Annatjie Plaatjies; and Swartz’s
wife, Johanna)..
[4]
It appears that, as also often happens, the workers were being
transported on the back of a
bakkie
.
It is common cause that Swartz grabbed Hester Krotz and pushed her
against the rails of the
bakkie
.
[5]
The employer dismissed Swartz. As Mr
Cronjé
argued, this would generally be seen as a fair reason for dismissal,
especially taking into account the scurge of violence against
women
in this country. I have very little doubt that if this Court
were sitting as a court of first instance, I would have
imposed the
sanction of dismissal.
[6]
The question, however, is whether the conclusion reached by the
arbitrator is so unreasonable that no other arbiotrator could
have
come to the same conclusion, as set out in
Sidumo
v Rustenburg Platinum Mines Ltd
[2007]
12 BLLR 1097
(CC) and expanded upon in the recent cases of
Herholdt
v Nedbank Ltd
(2013) 34
ILJ
2795 (SCA) and
Gold Fields Mining South
Africa (Kloof Gold Mine) v CCMA
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC).
[7]
The arbitrator accepted that Swartz was guilty of assault.The
question then turns on the appropriate sanction and whether the
sanction of dismissal was fair. The arbitrator took into
account that:
“
It
was a singular incident that happened in the heat of the moment and
that both parties have buried the hatchet
.”
[8]
The evidence before him further demonstrated that the parties
implicated have maintained a cordial relationship and their children
even continued to sleep over at each other’s houses. The
arbitrator also took into account that the employee has an
unblemished record and that there was no evidence before him that
progressive discipline would not have been an appropriate sanction.
[9]
The arbitrator substituted the sanction of dismissal with the
sanction of a final written warning valid for 12 months.
He
also ruled that the employee should be reinstated without any back
pay. That amounts in effect to a sanction of suspension
without
pay for about four and a half months.
[10]
The arbitrator further took into account that the employee had been
provoked.
[11] I agree with Mr
Cronjé
that verbal provocation should not be an excuse
for an assault on a woman. However, taking into account the
test, as prescribed
by the Constitutional Court, it is clear that the
arbitrator did take into account all the evidence before him. He
applied his
mind to relevant factors that I have summarised above,
including the fact that the parties have re-established a
relationship.
In short, the arbitrator fulfilled the
requirements set out in
Goldfields (supra)
paragraph [20]:
(i)
The parties had a full opportunity to have their say;
(ii)
The arbitrator identified the issue he had to arbitrate;
(iii) He
understood the nature of the dispute;
(iv) He dealt
with its substantial merits; and
(v)
His decision is one that a another decision-maker
could
reasonably have arrived at.
[12]
I do not agree with the sanction. But that is not the test. The
arbitrator used his discretion in deciding what a fair
sanction is
and it is the arbitrator’s sense of fairness that must
prevail. Uncomfortable as one may be with the sanction,
it
falls within a band of reasonableness, especially taking into account
the further sanctions of a final written warning and an
effective
suspension, without pay, for some four and a half months.
[13]
The conclusion reached by the arbitrator is not so unreasonable that
no other arbitrator could have come to the same conclusion.
This is a review application and not an appeal. The Court is
not in a position to interfere with that conclusion.
[14]
With regard to costs though, I take into account that the respondent,
i.e. the
Boerdery
,
and the employee will have to continue working together. I
presume also that the trade union, representing the employee,
will
still have a relationship with the farm. In law and fairness, I
do not believe that an adverse cost order would be appropriate.
I therefore order that
THE APPLICATION FOR
REVIEW IS DISMISSED (WITH NO ORDER AS TO COSTS).
_____________________
STEENKAMP,
J
APPEARANCES
APPLICANT: F
Cronjé (attorney)
FIRST
RESPONDENT: Yvette Isaacs
Instructed
by: Brink
& Thomas.