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[2014] ZALCCT 12
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NEHAWU obo Mgijima v Johnson (C787/2010) [2014] ZALCCT 12 (15 April 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR
COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
Reportable
Case
no: C787/2010
In
the matter between:
NEHAWU
obo LINDA
MGIJIMA
.....................................................................................
Applicant
and
CARLTON
JOHNSON
...........................................................................................
First
Respondent
METROPOLITAIN
HEALTH CORPORATION
...........................................
Second
Respondent
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
...........................................................................................
Third Respondent
Date
heard: 15 November 2013
Date
delivered: 15 April 2014
Summary:
Unopposed Review of an arbitration award
JUDGMENT
Rabkin-Naicker
J
[1]
This is an unopposed review application to review and set aside an
award dated 28 April 2011, under case number W ECT 217 –
10.
Despite the citation in this matter, the applicant was not
represented by NEHAWU and had initially brought her application
unassisted. On 22 May 2012, the matter was struck of the roll and the
applicant was ordered to file a condonation application due
to the
fact that she had not been aware that the arbitration record required
to be filed and served. On 15 November 2013 the review
and
condonation applications were heard. I granted condonation and
considered the applicant's review on its merits.
[2]
The applicant was dismissed after being charged with gross
misconduct: “in that on 6 November 2009 you deliberately and
intentionally directed insulting and derogatory language, behaviour
or action to the CEO of MHG, namely Blum Khan; you allegedly
promoted
disharmony in the workplace and at the year end function which took
place on 6 November 2009 with your actions in the
above-mentioned….”
There followed a disciplinary hearing where she was found guilty and
given the right to appeal
within two working days of receipt of the
decision which was sent to her on the 2 December 2009. She
subsequently appealed but
was unsuccessful.
[3]
In his award the first respondent (the Commissioner) found that he
was faced with two conflicting versions in the evidence before
him.
He recorded the evidence as follows:
“
The
respondent contended that the applicant had used derogatory language
whilst on the other hand the applicant denied guilt on
all the
allegations. Having carefully considered the evidence I have
concluded that the respondent had proved through credible
evidence
that the applicant is guilty of misconduct. Manzini presented clear
and coherent evidence that he was present during the
speech on 6
November 2009 and that he heard the applicant using the following
terms "you are talking shit or rubbish and futsek”.
The
evidence also points to the fact that applicant had pointed towards
the CEO and that she raised her voice. Manzini came across
as a
credible witness and his evidence is accepted without reservation.
The
applicant's allegation that Manzini had presented false evidence is
unfounded and is not supported by any concrete evidence.
I find it
peculiar that the applicant and her witnesses only heard certain
parts of the speech. There can be no question that the
evidence of
the applicant's witnesses was designed to advance the applicant's
case and is not a true reflection of the events of
6 November 2009. I
find it hard to believe that the applicant's witnesses could not hear
the comments when Manzini , who was further
away from the applicant's
table, could give a clear account of the events. The balance of
probabilities weighs heavily in favour
of the respondent's version.
The mere fact that Manzini had not included all the material facts in
his e-mail does not imply that
he was dishonest.
I
must record at this stage that the respondent and applicant had
attributed different interpretations to the words “ama Simba”.
The respondent maintained that the words imply that the CEO was
talking “shit" whilst the applicant party maintained
that
the word does not exist in the IsiXhosa language. The applicant
argued that at best the term implies that the CEO was talking
“rubbish”. Having considered the evidence, I am of the
view that it is not necessary to decide which interpretation
is
correct. I say this on the basis that the use of the term is clearly
to insult and degrade. In the circumstances, I accept as
more
probable the version of the respondent and it follows that the
applicant is guilty as charged.”
[3]
The Commissioner having found the applicant guilty of misconduct,
went on in his award to consider the principles set out in
Sidumo
with regard to determining the fairness of dismissal as a penalty. He
stated that he was of the view that the sanction of dismissal
is
justified in the circumstances of the matter before him. The
Commissioner went on to say: "The applicant demonstrated gross
disrespectful and insulting behaviour towards the company's most
senior employee. I must state for the record that the respondent
must
take some of the responsibility for the actions of the applicant. I
say this on the basis that the respondent served alcohol
at the
function and it must accept that there was the very real possibility
is that the employees was going to misbehave (sic).
The respondent
cannot serve its employees alcohol and then dismiss them when they
misbehave, without taking the consumption of
alcohol into
consideration."
[4]
The Commissioner notwithstanding the above consideration stated as
follows:
“
In
deciding whether to intervene with the sanction of dismissal it is
necessary to consider whether the applicant has shown remorse.
Instead of the applicant taking responsibility for her actions the
applicant presented false evidence to the arbitrator. Where
an
employee denies allegations of misconduct and lies about it in order
to advance his/her case it cannot be expected of the arbitrator
to
come to his/her assistance. In the present matter I would have
considered a sanction short of dismissal had it not been for
the lack
of remorse and the fact that the applicant had presented false
testimony to the arbitration.”
[5]
The Commissioner thus decided that he found no legal basis to
interfere with the sanction of dismissal and concluded that her
dismissal was substantively fair. In her supplementary affidavit, the
applicant sets out the grounds for review. First she avers
that the
finding by the Commissioner regarding the interpretation of the term
‘ama Simba’ shows that he failed to apply
his mind to the
evidence before him and committed a gross irregularity: "in that
he failed to establish during the proceedings
whether indeed if the
words were actually said by the applicant thus requiring a need to
interpret the meaning of the words and
to establish who these words
were directed to." It appears that a further ground for review
is that the Commissioner failed
to give sufficient weight to the
evidence of applicant’s witnesses. Further there is an
allegation of bias on the part of
the Commissioner. It is also
alleged that the Commissioner failed to justify why he was using the
Sidumo
case to uphold the dismissal when gross disrespect had
not been proved against the applicant on a balance of probabilities.
No references
are made to the record to support these propositions.
[6]
Having considered the record of the proceedings before the
Commissioner and the reasoning in his award, I do not find that the
award is susceptible to review. The Commissioner was correct to apply
the
Sidumo
test in the way that he did. Furthermore, given the
jurisprudence on the reviewability of awards the applicant simply
does not
provide any sound basis for the award to be set aside. In
Goldfields Mining South Africa (Pty) Ltd (Kloof Goldmine) versus
CCMA and others
, the Labour Appeal Court summarised the questions
a reviewing court should ask in a matter such as the one before me as
follows:
“
The
questions to ask are these: (I) In terms of his or her duty to deal
with the matter with the minimum of legal formalities, did
the
process that the arbitrator employed give the parties a full
opportunity to have their say in respect of the dispute? (II)
Did the
arbitrator identify the dispute he was required to arbitrate (this
may in certain cases only become clear after both parties
have led
their evidence)? (III) Did the arbitrator understand the nature of
the dispute he or she was required to arbitrate? (IV)
Did he or she
deal with the substantial merits of the dispute? And (V) is the
arbitrator's decision is one that another decision
maker could
reasonably have arrived at based on the evidence?"
[1]
[7]
A consideration of the record and the award in this matter reflects
that an affirmative answer must be given to all of the above
listed
questions. Furthermore, I take into account the judgment of the
Supreme Court of Appeal in the
Herholdt
matter
[2]
where that court held as follows:
“
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 enquiry
or
arrived at an unreasonable result. A result will only 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."
[8]
The Commissioner’s consideration of the question of remorse
weighed together with his findings on the credibility of applicant
and her witnesses cannot be gainsaid by this court. His ultimate
decision in my judgment was one that a reasonable decision maker
could reach on all the evidence before him. For these reasons I make
the following order:
1.
The application is dismissed.
Rabkin-Naicker
J
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant :Adv. M.I. Motimele instructed by MPM Incorporated
[1]
JA2/2012
at paragraph 20
[2]
Herholdt
v Nedbank Ltd (701/2012)
[2013] ZASCA 97
(5 September 2013)