About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Port Elizabeth Labour Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Port Elizabeth Labour Court, Port Elizabeth
>>
2014
>>
[2014] ZALCPE 26
|
|
Marrow v Commission for Conciliation, Mediation and Arbitration and Others (P229/11) [2014] ZALCPE 26 (22 August 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case
No: P229/11
In
the matter between:
BERNARD
ANTONY
MARROW
Applicant
And
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
First Respondent
COMMISSIONER
NALEDI BISIWE
Second Respondent
PICK
‘N
PAY
Third Respondent
Heard:
23 October 2013
Delivered:
22 August 2014
Summary:
There is no basis to review and set aside an award which falls within
bounds of reasonableness.
Errors which have no effect on the
reasonableness of the award do not render it reviewable.
Review
in terms of section 145 of the LRA – Dismissal for misconduct.
JUDGMENT
LALLIE,
J
Introduction
[1] This is an
application to review and set aside an arbitration award issued by
the second respondent (‘the commissioner’)
under the
auspices of the first respondent (‘the CCMA’). It is
opposed by the third respondent.
Factual background
[2] The applicant was
employed by the third respondent and a shelf parker from 1 December
2007 until his dismissal for misconduct
on 18 April 2008. The facts
which led to the applicant’s dismissal are mostly common cause.
Policies of the third respondent
require its employees to be searched
each time they exit its store. On 28 March 2008, the applicant needed
to discard empty boxes.
There was no male security guard at the
receiving area exit. He waited briefly at the door to be searched by
Mr Mfulatelwa (Mfulatelwa),
the receiving manager. He went out before
he would be searched. A verbal exchange ensured between the applicant
and Mfulatelwa
which was joined by Mr Ritchie (Ritchie), the
departmental manager. The incident was reported to Mongameli, the
floor manager who
called the applicant to his office. His attempts to
resolve the problem were unsuccessful and he instructed the applicant
to leave
work for the day as he was in no position to carry on with
his duties. After swiping out the applicant was seen by Mr Taylor
(Taylor),
the assistant store manager at the cigarette counter. He
had his shirt unbuttoned and tied at the bottom. Taylor told him to
dress
properly but the applicant became rude and aggressive and
refused to carry out the instruction.
[3] As a result of the
events of 28 March 2008, the following charges were preferred against
the applicant:
‘
1.
Transgressing laid down and regulations in that you left the store
and refused to be searched; 2.
Bringing
the company name into disrepute; 3. Disobeying lawful
instructions from management with regards to being searched
and with
regard to your dress code.’
The applicant was found
guilty of all the charges and dismissed. He challenged the fairness
of his dismissal at the CCMA where the
commissioner issued the award
which is the subject of this application.
[4]
The applicant filed this application outside the six weeks period
prescribed in section 145 of the Labour Relations Act 66 of
1995
(‘the LRA’) and applied for condonation. The condonation
application is unopposed. I have considered
the submissions
made by the applicant in his condonation application and I am
satisfied that he has shown good cause for condonation
of the
lateness. The application for the late filing of the review
application is therefore granted.
Condonation for the
late filing of the record
[5]
Rule 7A (6) requires an applicant for review to furnish the registrar
and the other parties with a copy of the record. The applicant
was
informed by the registrar of the availability of the record on 27
July 2011, filed the record on 3 May 2013 and served it on
the third
respondent on 2 July 2013 delaying by about two years. Since his
dismissal, the applicant has not secured alternative
employment. He
managed to raise funds to pay for volume one of the transcript of the
arbitration proceedings which he delivered
at the third respondent on
11
January 2012. He applied for legal aid on 22
March 2012 from which date he was represented by Legal Aid South
Africa which made
the filing of the outstanding portion of the record
possible. The applicant’s explanation is that he could not
afford to
pay for the whole transcript, a problem he commutated to
and the registrar and the third respondent on a number of occasions.
[6] The third respondent
opposed this application on the grounds that the delay is excessive.
It sought to rely on clause 11.2.2
and 11.2.3 of the Practice Manual
of this court which provide that an applicant’s review
application is deemed to be withdraw
in the event of the applicant’s
failure to file the record within 60 days from the date of being
advised by the registrar
of its availability. The period may be
extended. The third respondent argued that this application should be
dismissed based on
the
vigilantibus non dormientibus lex
subveniunt
maxim particularly because it raised the issue of the
delay in its answering affidavit to the review application (the
answering
affidavit).
[7] The third respondent
cannot rely on the Practice Manual because it came into effect on 2
April 2013. It does not apply retrospectively.
Save for bringing the
lateness of the filing of the record to the applicant’s
attention in the answering affidavit, the third
respondent took no
steps to have the dispute disposed of expeditiously. Rule 11 was open
to the third respondent but it decided
not to invoke its provisions.
The applicant will suffer more prejudice than the third respondent in
the event of this application
being refused. Further, the applicant
did not sit on his lawrells. He made his interest in this matter
known.
[8] It is common cause
that the real reason for the delay is the applicant’s inability
to pay for the transcript of the record
of the arbitration
proceedings. It has been held in a number of decisions of this court
that it serves all who appear before it
including the impecunious.
Having taken into account the circumstances of this matter, I accept
that the applicant never lost interest
in pursuing it, a fact which
was known to the third respondent which decided to afford him an
opportunity to file the record. I
am not convinced that the doors of
this court should be closed to the applicant because he had no source
of income and therefore
unable to pay for the transcript of the
record. While the delay is inordinate, the explanation proffered by
the applicant is reasonable.
The applicant took active steps to
pursue this matter and granting this application will not prejudice
the third respondent. For
these reasons, the application for the late
filing of the arbitration record is granted.
The award
[9]
The commissioner found that the applicant did not dispute the
existence of the rule which required him to be searched before
exiting the third respondent store. His knowledge was confirmed by
his conduct of going to the receiving
area to be searched
before exiting. He merely challenged the third respondent’s
failure to display the rule on the walls.
The commissioner considered
the evidence that before taking up employment with the third
respondent, the applicant worked for a security
firm and performed his duties at one of the Pick n Pay stores. He was
therefore
aware of the need to be searched. The commissioner
expressed the view that the applicant could have cancelled his box
discarding
trip in the absence of an emergency which forced him to
exit without being searched. She accepted the third respondent’s
version that Mfulatelwa followed the applicant after he exited the
store and asked him to submit to a search but he refused. The
version
was not disputed by the applicant who seemed to take exception to
Mfulatelwa’s delay in leaving whatever he was doing
in order to
search him. The commissioner found that the third respondent had
discharged the onus of proving that the applicant’s
refusal to
be searched because of Mfulatelwa’s delay by a few seconds was
unjustifiable.
[10] The commissioner
found that the applicant made himself guilty of the third charge when
he refused to submit to a reach after
being urged by Mfulatelwa and
Ritchie.
[11] Dealing with charge
two which is based on the manner in which the applicant wore his
uniform after he was told to leave the
workplace, the commissioner
considered that the uniform policy specifies that the uniform is an
important element in the creation
of a positive image of Pick ‘n
Pay, it forms part of many different aspects of the company’s
corporate identity. She
took into account the third respondent’s
submission that the unkempt manner in which the applicant wore his
uniform discredited
its image. After considering the applicant’s
defence that there was no prescribed manner for wearing the uniform
and that
the incident occurred outside working hours, she found that
the way in which the applicant was wearing his uniform was
inconsistent
with the third respondent’s stated objectives. She
found that the third respondent could discipline the applicant
although
he had knocked off because he was at the store, during
working hours and wearing uniform similar to that of the employees
who were
still on duty. His uniform was associated with the third
respondent by members of the public. Taylor was therefore within his
right
to take him to task for his conduct. The commissioner found the
applicant’s appearance deserving of censure and disregarding
Talyors’s instruction to dress properly disobeying a lawful
instruction with regard to the dress code.
[12] The commissioner
found the applicant’s dismissal procedurally fair because the
third respondent’s disciplinary
code indicates that its list of
disciplinary offences is not comprehensive and serve as guidelines.
The code gives management the
discretion to determine, the level of
disciplinary action to be initiated according to the degree of
transgression. She found that
a transgression of laid down rules or
procedures falls under mandatory offences for which the conducting of
a disciplinary enquiry
is compulsory.
Test for review
[13]
The test for review is whether the commissioner’s decision is a
decision a reasonable decision maker could not reach
based on the
evidence before the commissioner.
[1]
In determining review applications the reviewing court needs to
consider the evidence before the commissioner in its totality.
It is
further required to consider if the commissioner considered facts
presented at the arbitration and reached a reasonable conclusion.
In
this regard see
Gold
Fields Mining SA (Pty) Ltd
(Kloof
Gold Mine)
v
CCMA and Others.
[2]
[14]
The applicant drafted his founding papers in which he stated
everything that he is dissatisfied with in the award some of which
does not necessarily constitute grounds for review. The complaints
include the commissioner’s failure to establish whether
the
charge is dismissible as the third respondent’s disciplinary
code is silent in that regard. Her failure to consider that
the
applicant was not inducted and not in possession of the third
respondent’s disciplinary code. He had referred a dispute
regarding the third respondent’s failure to
induct him
to the CCMA. She disregarded his evidence in connection with the
video footage and his refusal to be searched. The commissioner
was
prejudiced, partial and biased and accepted the third respondent’s
evidence before considering the probabilities of his
version. The
applicant complained about the commissioner’s failure to comply
with the code of good practice. She ignored
his shop steward’s
evidence that there was no need for a disciplinary hearing as he was
not guilty of refusal to carry out
instructions, theft or dishonesty.
She stopped him from leading his shop steward on the fairness of his
dismissal and used his
failure to lead evidence against him in her
award. She also
ignored evidence in his favour.
The applicant criticised the commissioner for not ruling that his
misconduct deserved a verbal warning
and for not taking into account
that sending him home after the incident involving his refusal to be
searched was not the third
respondent’s procedure. Had he not
been sent home the conduct in charges two and three would not have
happened. On the list
of the commissioner’s errors the
applicant seeks to rely on, is her failure to consider that the
applicant was given no instruction
and the third respondent’s
breach of its own security procedures by not having a security guard
at the door of the receiving
area. The commissioner is alleged to
have made false allegation and given management protection by not
recognising the third respondent’s
inconsistency but protecting
Mfulatelwa by finding that he chased after him when he did not even
run. She is further attacked for
twisting the applicant’s
version, disregarding his submissions that Mr young (Young) who
charged him was an important witness
and not taking into account that
other dishonest employees had been given their jobs back. In the
applicant’s heads and supplementary
heads of argument an effort
is made to categorise some complaints into legitimate grounds for
review.
[15]
An analysis of the grounds for review reflects that the applicant
seeks to rely on a number of errors made and gross irregularities
committed by the commissioner. In
Herholdt
v Nedbank Ltd (Congress of South African Trade union as Amicus
Curiae)
[3]
it was held that the following approach should be adopted in
determining reviews based on gross irregularities of commissioners.
‘
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
inquiry 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’.
[16]
The same principle was enunciated as follows in
Gold
Fields
(
supra
):
‘
Sidumo
does not postulate a test that requires a simple evaluation of the
evidence presented to the arbitrator and based on that evaluation,
a
determination of the reasonableness of the decision arrived at by the
arbitrator. The Court in
Sidumo
was at pains to state that arbitration awards made under the Labour
Relations act (“LRA”) continue to be determined
in terms
of section 145 of the LRA but that the constitutional standard of
reasonableness is “suffused” in the application
of
section 145 of the LRA. This implies that an application for review
sought on the grounds of misconduct, gross irregularity
in the
conduct of the arbitration proceedings, and/or excess of powers will
not lead automatically to a setting aside of the award
if any of the
above grounds are found to be present. In other words, in a case such
as the present, where a gross irregularity
in the proceedings is
alleged, the enquiry is not confined to whether the arbitrator
misconceived the nature of the proceedings,
but extends to whether
the result was unreasonable, or put another way, whether the decision
that the arbitrator arrived at is
one that falls in a band of
decisions to which a reasonable decision-maker could come on the
available material’
[4]
.
[17]
A number of grounds the applicant sought to rely on are not based on
the evidence. The reasonableness of the award is based
on the
evidence before the commissioner, the relationship between grounds
for review and the evidence before the commissioner is
therefore
material. It was argued on behalf of the applicant that the
conclusion that the sanction of dismissal was appropriate
was
unreasonable because in reaching it, the commissioner completely
failed to attach any weight to a number of important factors.
The
factors include the absence of evidence in respect of the charge of
bringing the third respondent’s name into disrepute.
This
argument overlooks the fact that the commissioner’s ruling is
based on Taylor’s evidence that the incident involving
the
applicant’s refusal to dress properly created a bad image for
the third respondent in the public eye. It occurred on
a Saturday
which coincided with the end of the month when there were many
customers in the store. A further factor is the concession
made by
the third respondent that failure to follow the dress code was
punishable by a verbal warning. The applicant’s argument
does
not render unreasonable the commissioners finding that the list of
disciplinary offences in the third respondent’s disciplinary
code provides that it constitutes guide-lines. It gives management
discretion to determine the level of disciplinary action to
be
initiated according to the degree of the transgression.
[18] The applicant argued
that the commissioner failed to consider as a mitigating factor the
fact that some misconduct took place
while the applicant was
off-duty. The commissioner is required to act reasonably. She applied
her mind to the issue of misconduct
which is committed by employees
outside working hours and made a reasonable ruling based on the
evidence before her. The applicant’s
argument that the
importance of the rule that employees need to be searched before
exiting the store is not based on the evidence
tendered at the
arbitration. The commissioner’s ruling in this regard is based
on the evidence before her. She accepted Mfulatelwa’s
need to
run after the applicant leading him to exit the store without being
searched. The applicant’s argument that he was
not made aware
of the rule, its importance and consequences of its breach is not
based either on the evidence before the arbitrator
or the pleadings.
It flies in the face of the unchallenged evidence that the applicant
was given the human resources document which
included the
disciplinary code. It is further common cause that when the applicant
joined the third respondent, he already knew
the consequences of
leaving the store without being searched. It is knowledge that he
could not wish away which he correctly did
not deny. The argument
therefore has no factual basis.
[19] The applicant argued
that the commissioner failed to consider progressive discipline. In
the award, the commissioner gave clear
and reasonable reasons based
on the evidence before her why dismissal was appropriate.
[20]
The applicant had to provide the commissioner with relevant facts on
which to take her decision on the fairness or otherwise
of the
applicant’s dismissal. A reading of the record reflects that
the commissioner afforded the applicant a fair opportunity
to present
his case. The applicant was not dismissed for theft and the
commissioner made that fact clear in her award. The applicant’s
complaint that the commissioner ignored evidence which proved that he
did not commit theft or any act of dishonesty does not assist
him. So
is his criticism that the commissioner failed to consider that the
decision to send him home was against the third respondent’s
procedure. Evidence was led at the arbitration to the effect that
Mongameli had the authority to handle the incident involving
the
applicant as he deemed fit. The commissioner’s finding that a
manager who removes from the workplace, an employee who
is not in a
position to perform his duties in an effort to resolve conflict is
not unreasonable. The applicant’s decision
to commit further
misconduct after he was told to leave the workplace for the day
cannot be imputed on either Mongameli or the
commissioner. It is
factually incorrect that one of the commissioner’s errors was
that she did not consider that no instructions
were given to the
applicant. Overwhelming
admissible evidence supporting the
finding was led at the arbitration. The applicant did not deny that
Mfulatelwa gave him instructions
to submit to a search. His gripe was
that he took his time. He further did not deny that Taylor instructed
him to dress properly
and correct the way he had worn his uniform.
His complaint was that he was off duty and under no obligation to
carry out the instructions.
The attack based on the absence of a
security guard at the receiving area has no basis either as
Mfulatelwa’s evidence was
that security
formed
part of his responsibilities. He is the one who would have searched
the applicant had he not refused. Amongst his grounds
for review, the
applicant, in stark contrast to his accusation based on the
commissioner’s omissions, acknowledged that it
was management’s
responsibility to carry out searches.
[21]
The evidence that the applicant was a security guard placed at Pick
and Pay before taking up employment at the third respondent
constitutes relevant unchallenged evidence which the commissioner
correctly took into account in reaching her decision. It is not
true
that the commissioner accused the
applicant of conspiracy and
pilferage. The commissioner did not falsely charge the applicant with
dishonesty and insubordination
as he alleged. Insubordination forms
part of the charges the third respondent preferred against the
applicant.
[22] Contrary to the
applicant’s accusations, the commissioner considered his
concerns about the third respondent’s
decision not to call
Young as a witness at the arbitration, the commissioner made it clear
that the third respondent could not
be dictated to with regard to
witness it wanted to call. She further apprised the applicant of his
right to call Young as his own
witness if he so wished. The applicant
did not disclose the manner in which the commissioner twisted the
version of his evidence.
[23] The applicant was
not dismissed for dishonesty, his attempt to rely on an
unsubstantiated claim that the third respondent gave
two of its
employees their jobs back after committing acts of dishonesty does
not assist his case. The applicant attempted to rely
on the fact that
he had approached the CCMA because of the third respondent’s
failure to induct him. He expressed the view
that the third
respondent could not discipline him before he was inducted. However,
Mr Harris (Harris), who chaired his disciplinary
enquiry led
unchallenged evidence that on 23 May 2008 a portion of the third
respondent’s human resources documents including
its
disciplinary code was printed and handed to the applicant who
acknowledged receipt by appending his signature. Nothing precluded
the third respondent from charging the applicant before his
induction. He was in possession of the disciplinary code and did not
claim not to have known the existence of the misconduct of exiting
the premises without being searched and its consequences. Refusal
to carry out an instruction is the kind of misconduct which an
employer can reasonably expect an employee to be aware of.
[24]
It is not the duty of the review court to determine the fairness of a
dismissal. Commissioners are charged with the responsibility
of
making such pronouncements. An award may not be reviewed and set
aside because a commissioner has reached a decision the reviewing
court would not have reached. In
Fidelity
Cash
Management Services v Commission for Conciliation, Mediation and
Arbitration and Others,
[5]
it
was held that two commissioners acting reasonably may reach different
decisions on the same matter. The test is whether the award
falls
within bounds of reasonableness.
[25]
The applicant did not succeed in proving that the commissioner
committed errors or acts of misconduct which led her to reach an
unreasonable decision. The piece-meal approach adopted by the
applicant in presenting his case did not assist him because in
determining
his application, the evidence before the commissioner had
to be approached in its totality.
[26] In the award, the
commissioner identified the issue before her correctly. She dealt
comprehensively with all the evidence in
respect of the charges which
the applicant was found guilty of. She further dealt with the
enforcement of discipline in terms of
the third respondent’s
disciplinary code. She gave reasons for her decision and relied on
authority to highlight the gravity
of insubordination. She applied
the guide-lines in
Sidumo
(supra) in reaching her decision.
When the totality of the evidence is considered it reflects that any
error on the part of the
commissioner did not have the effect of
rendering her decision unreasonable.
[27] In the premises, the
following order is made:
27.1
The application for condonation of the late filing of the review
application is granted.
27.2
The application for condonation of the late filing of the record is
granted.
27.3
The application for review is dismissed.
______________
Lallie J
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant:
Mrs Van Staden of the
Justice Centre
For
the Third Respondent: Coenie Du Toit of the Third
Respondent
[1]
See
Sidumo
and other v Rustenburg Platinum mines Ltd and Others
2008 (2) SA (CC) at para 110.
[2]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) at paras 15-16.
[3]
[2013] 11 BLLR 1074
(SCA) at para 25.
[4]
Above
n 2at para 14.
[5]
[2008]
3 BLLR 197
(LAC) at para 97.