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[2014] ZALCCT 61
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Distell Ltd v Commission for Conciliation Mediation And Arbitration and Others (C359/2014) [2014] ZALCCT 61 (28 October 2014)
IN
THE LABOUR COURT OF SOUTH AFRICA
(
CAPE
TOWN
)
CASE
NUMBER
: C359/2014
DATE
:
28 OCTOBER 2014
In
the matter between:
DISTELL
LIMITED
Applicant
And
COMMISSION
FOR CONCILIATION,
MEDIATION
&
ARBITRATION
1
st
Respondent
SH
CHRISTIE
N.O.
2
nd
Respondent
JEFFERSON
BAILEY
3
rd
Respondent
CANDICE
MALLOY
4
th
Respondent
J
U D G M E N T
STEENKAMP,
J
:
This
is an application for review arising from the arbitration award of
Commissioner Sarah Christie of 17 April 2013. The
two employees
involved, Mr Bailey and Ms Malloy, were dismissed after a regrettable
and serious incident where an email between
them was inadvertently
copied to a line manager, Mr Pape, with vulgar content referring to
him sucking a fellow employee’s
dick. An investigation
was instituted by the company, Distell, and further offensive emails
were uncovered, including one
where Malloy made reference to a fellow
employee as a “darkie”.
It
is common cause that that email was not sent to the employee in
question. In fact, it appears that the employee, who is unnamed,
was
not aware of it. Both employees, ie Malloy and Bailey, were
dismissed after a disciplinary hearing where Malloy
‘pleaded
guilty’ to misconduct but not gross misconduct. They referred
an unfair dismissal dispute to the CCMA.
The arbitrator agreed
that the two employees did commit misconduct. However, she found that
the sanction of dismissal was too harsh.
She substituted that
sanction with one of a final written warning valid for 12 months.
The
review therefore goes squarely to the question of whether that
conclusion reached by the arbitrator was so unreasonable that
no
other arbitrator could have reached the same conclusion, i.e. the
test set out in
Sidumo v Rustenburg
Platinum Mines
2008 (2) SA 24
(CC).
The applicant’s legal representative initially in his heads of
argument relied on
Southern Sun Hotel
Interests v CCMA
[2009] 11 BLLR 1128
(LC) and a number of other judgments that referred to so-called
‘process related irregularities’ or ‘dialectical
unreasonableness.’ Mr
Ellis
quite properly conceded in his oral argument today that that is no
longer good law, following the judgments of the higher courts
in
Herholdt
and
Goldfields
.
In
Herholdt v Nedbank
2013 (6) SA 224
(SCA) that Court summarised the current position 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 section 145(2)(a) of
the LRA. For a defect in the conduct of the proceedings
to
amount to a gross irregularity as contemplated by section
145(2)(a)(ii), the arbitrator must have misconceived the nature of
the enquiry or arrived at an unreasonable result. A result will
only 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.”
Although
a number of grounds of review are raised, Mr
Ellis
confined his argument today to two broad themes. The first is
that the commissioner acted unreasonably in reinstating the
two
employees in circumstances where, on his argument, there had been a
breakdown of trust; and the second goes to her distinguishing
the
case law relating to racially offensive epithets to the facts of this
case.
As
to the first argument, the arbitrator deals with it in these terms
after having found that a lesser sanction of a final written
warning
ought to have been imposed. She says:
“
Their
behaviour was inappropriate but there is insufficient basis for
concluding that continued employment would be intolerable.
I
think that some firm disciplinary measure would have ensured that
this behaviour would never be repeated. I do not think
the
behaviour warranted dismissal let alone summary dismissal and I
conclude the dismissals were substantively unfair.
They seek reinstatement,
the primary remedy for unfair dismissal. An arbitrator must
direct the employer to reinstate or re-employ,
unless ‘a
continued employment relationship would be intolerable or it is not
reasonably practicable’.
The
employer argues that reinstatement would be intolerable and bases
this on the view of the managers Pape and Venter. An
employer
who resists an order of reinstatement must show on a balance of
probabilities that there are no reasonable prospects of
a good
working relationship being restored. It has not done so.
I would have concluded otherwise if this were, say,
a small
family-owned business or the applicants were senior employees.
I do not think there is a basis for concluding that
reinstatement
would cause significant disruption in the workplace. I accept
that it is reasonable for Pape and Venter to
subjectively conclude
that they would not be able to work with either of the applicants and
the respondent [i.e. Distell] should
accommodate their legitimate
concerns, but I am not persuaded that reinstatement would be
intolerable for the respondent [i.e.
Distell].”.
As
Mr
Brink
pointed out in his oral argument, that conclusion is related to the
question of onus. The arbitrator not only reasonably,
but
correctly, finds that the employer had the onus to show that a
continued employment relationship would be intolerable. In
this
case, commendably, the parties agreed to a stated case rather than
leading lengthy evidence on facts that were common cause.
In
that context, where both parties were very competently legally
represented, Mr
Ellis,
for the employer, stated the following:
“
That
left me with fairly obvious pieces of evidence that had to be led,
specifically from the line managers involved. If I
understand
Mr Brink correctly he is prepared to accept that those witnesses will
come and testify that having seen these statements
and what has been
written in respect of [the line managers], that they were shocked and
they would not be able to work with these
individuals going forward.”
The
employees’ counsel then clarified that they would argue that
whatever the line managers’ subjective feelings may
have been,
they were not objectively reasonable in the circumstances.
On
the evidence properly presented to her by the legal representatives
of both parties, the arbitrator then came to the conclusion
that the
two line managers subjectively concluded that they would not be able
to work with either of the employees and she finds
that that was
reasonable. However, her further finding is that the company,
Distell, had not shown that it would be intolerable
to reinstate the
two employees. That is not, on the evidence before her, such an
unreasonable finding that no other arbitrator
could have reached it.
It is at the very least within a range of reasonable outcomes and
therefore not reviewable.
I
turn then to the more difficult and contentious question of the use
of racial epithets. It need hardly be said that in our
country
with its racist apartheid history the use of derogatory racial
epithets in the workplace or anywhere else is entirely unacceptable.
That
much has been held in a number of cases, some of which has been cited
in this Court and before the arbitrator. The arbitrator
distinguishes those cases in the context of the facts of this case.
It is common cause that only one of the employees, that
is Malloy,
used the word “darkie” and that that term was not aimed
directly at another employee and did not come to
the attention of
that employee. The arbitrator concludes that it is
distinguishable from
Finca v Old Mutual
(2006) 27
ILJ
1204 (LC) and
Crown Chickens (Pty)
Limited t/a Rocklands Poultry v Kapp
(2002) 23
ILJ
863
(LAC) on which the employer placed reliance.
As
the arbitrator points out, in
Finca
an employee of Old Mutual uttered the words, “
hoekom
sit jy my langsaan die kaffers
?”
This was later communicated to Finca by a black colleague. In
Crown Chickens
the facts were even more egregious. The employee was injured at
work and a supervisor uttered the deploringly offensive words,
“
los
die kaffer, laat hom vrek
”
-- thus not only using the racist term but
equating the person with an animal.
In
Crown Chickens
Zondo
JP, as he then was, dealt at length with the history of racial abuse
in South Africa, citing a number of cases where
people had been
abused because of their race and in each of those cases he expressly
referred to the use of that offensive term,
i.e. the “K”
word, and he says at paragraph [36]:
“
The
attitude that manifests itself in certain whites calling or referring
to Africans as “
kaffers
”
is a disgracefully racist attitude that comes from
those who think that they or whites or better human beings than black
people”.
And
in paragraph [37]:
“
The
attitude of those we refer to or call Africans “
kaffers
”
is an attitude that should have no place in any
workplace in this country and should be rejected with absolute
contempt by all those
in our country, black and white, who are
committed to the values of human dignity, equality and freedom that
now form a foundation
of our society.”
As
the arbitrator points out, those cases dealt specifically with the
use of that term, probably the most offensive racist term
in the
history of our country. She comes to the conclusion that that
word is more offensive than the word “darkie”,
even
though it constitutes a racial slur. However, that is not where
it ends. More significant, she points out, is
the fact that
none of the offensive language was intended to be communicated.
She also took into account the employees’
remorse and their
willingness to submit to a lesser sanction of a final written
warning, as well as the principle that our law
promotes progressive
discipline. It is in that context that she finds that dismissal was
too harsh a sanction.
Is
that conclusion so unreasonable that no arbitrator could have come to
the same conclusion? The answer to that must be no.
This
Court may have found otherwise. Sitting as an arbitrator I may
well have found that dismissal was a fair sanction.
Another
arbitrator could also have found that, but that does not mean that
this finding is so unreasonable that no other arbitrator
could have
come to the same conclusion.
Before
I deal with the test in
Goldfields,
I
will just deal with the criticism that the arbitrator referred to the
IT policy instead of the disciplinary policy. Although
Mr
Ellis
did not argue it orally it is still in his heads of argument, and I
will not presume that he has abandoned it. Of course, in finding
that
the employees had breached the IT policy, the arbitrator then had to
decide whether progressive discipline was appropriate,
and she found
that it was. That does not make the award reviewable. In
fact, that approach to review applications –
in finely picking
apart the reference to the “IT policy” instead of the
“disciplinary policy” -- is exactly
what the Labour
Appeal Court per Davis, JA has warned against in
Ellerine
Holdings Ltd v CCMA & others
[1]
:
“
[A]
court must be careful to parse an award by [an arbitrator] in the
same fashion as one would an elegant judgment of the Supreme
Court of
Appeal or the Constitutional Court. These awards must be read for
what they are, awards made by arbitrators who are not
judges. When
all of the evidence is taken into account, when there is no
irregularity of a material kind in that evidence was ignored,
or
improperly rejected, or where there was not a full opportunity for an
examination of all aspects of the case, then there is
no gross
irregularity...”
In
fact, as the SCA said in
Herholdt
,
the aim is to look at the award in the round and then to decide
whether the conclusion was one that a reasonable arbitrator could
reach.
The
test on review was summed up by the Labour Appeal Court in
Goldfields
.
The questions that this Court must ask are the following:
(1)
“
In terms of her duty to deal with
the matter with the minimum of formalities, did the process that the
arbitrator employed give
the parties a full opportunity to have their
say in respect of the dispute?”
In
this case, that is exactly what the arbitrator did. The
parties, both of them represented by competent and experienced
legal
practitioners, decided to present evidence and submissions in writing
and she used that process as she was requested to do.
The
second question is:
“
(2)
Did the arbitrator identify the dispute she was required to
arbitrate?”
Again
the answer is yes.
“
(3)
Did the arbitrator understand the nature of the dispute she was
required to arbitrate?”
The
answer is yes; and she discussed and carefully went through all
aspects of this dispute.
“
(4)
Did she deal with the substantial merits of the dispute?”
The
answer is again yes. She dealt with the substantial merits of
the dispute carefully. She looked at the facts that
were
presented to her, she carefully considered the case law that was
presented by the employer and she set out full reasons why
the facts
of this case were distinguishable. In fact, the award is a
model of careful and lucid reasoning.
“
(5)
Is the arbitrator’s decision one that another decision maker
could reach and therefore arrived at based on the evidence?”
This
is invariably the catch-all phrase that encompasses the final
question, having looked at the evidence in the round. As
I have
said, although another arbitrator may conceivably have come to a
different conclusion, the conclusion that this arbitrator
arrived at
based on the evidence before her that she considered carefully; based
on the case law before her that she considered
carefully; and the
circumstances of the case, is a conclusion that she could
reasonably have arrived at.
That
leaves the question of costs. The two employees, with an
arbitration award in their favour, have been brought to court
at the
instance of the employer. They have had to incur costs in
instructing legal representatives. This is one of
those
applications that should not have been brought. It makes the
mistake of blurring the lines between appeal and review.
It
should have been clear from the outset that although the award, had
it been a matter that could have gone on appeal, may have
had
prospects of success on appeal, on review the converse is the case.
There is no reason why the employees should be out
of pocket.
THE
APPLICATION IS DISMISSED WITH COSTS
.
___________________________
STEENKAMP,
J
APPEARANCES:
APPLICANT:
E Ellis of Edward Nathan Sonnenbergs.
THIRD
AND FOURTH RESPONDENTS:
A A Brink
Instructed
by:
Anton Buirski.
[1]
[2008] JOL 2287
(LAC) p 13.