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[2014] ZALCPE 33
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NEHAWU obo Hoho v Commission for Conciliation, Mediation and Arbitration and Others (P 570/12) [2014] ZALCPE 33 (19 November 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN PORT ELIZABETH
JUDGMENT
Not
Reportable
DATE:
19 NOVEMBER 2014
Case
no: P 570/12
In the matter
between:
NEHAWU obo KERR
HOHO
...............................................................
Applicant
And
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
.........................................
First
Respondent
MZAMO MAMA
N.O
..........................................................
Second
Respondent
SECRETARY TO THE
EASTERN
CAPE
LEGISLATURE
...........................................................
Third
Respondent
Heard: 18
November 2014
Delivered 19
November 2014
JUDGMENT
VAN NIEKERK J
[1] This is an
application to review and set aside an arbitration award made by the
second respondent (the commissioner) on 5 November
2012. In his
award, the commissioner held that Mr. Kerr Hoho, on whose behalf the
applicant has initiated these proceedings, was
guilty of serious acts
of misconduct and that his dismissal should be upheld. The founding
affidavit discloses a broad range of
grounds for review. At the
hearing of the application and in support of his supplementary heads
of argument, Adv. Zondo, who appeared
for the applicant, confined the
attack on the award to the single ground that the arbitrator
committed a gross irregularity by
deferring to the employer on the
question of sanction, thus rendering a result to which no reasonable
decision-maker could come.
[2] The material
facts are not in dispute. Kerr Hoho was employed by the third
respondent as a researcher. During the course of
October 2011, he was
charged for misconduct on grounds, amongst others, of bringing the
legislature into disrepute and failing
to comply with a written
instruction to desist from disseminating abusive emails. Kerr was
found guilty of the charges against
him and dismissed. He referred a
dispute to the CCMA, which culminated in the arbitration proceedings
under review.
[3] In his award, as
I have indicated, the commissioner found that Kerr had committed the
act of misconduct complained of. He went
on to say the following:
‘36. I further
find that no reasonable employer could allow a free for all to its
employees in a workplace. Indeed, I find
it intolerable for the
applicant to grant himself a licence to cast unfair and unfounded
suspicions on the integrity of fellow
employees and public
representatives’.
[4] In relation to
sanction, the commissioner said the following:
‘40. I find
that in the light of the finding in paragraph 35, 36 and 37 above,
the unrepentant nature of the applicant, his
previous disciplinary
record, any reasonable decision-maker could have arrived at the
decision of the respondent’.
[5] Adv. Zondo
submitted that it was apparent from this formulation that the
commissioner had applied the reasonable employer test.
In other
words, the commissioner had not himself considered what would
constitute a fair sanction in the circumstances, he had
decided the
issue of sanction by reference to a range of penalties that a
reasonable employer might impose. This, of course, is
the approach
that was expressly rejected by the Constitutional Court in Sidumo &
others v Rustenburg Platinum Mines & another
[2007] 12 BLLR 1097
(CC) where the court stated that a commissioner must determine
whether a dismissal is fair and in arriving at a decision; he or
she
is not required to defer to the decision of the employer. What is
required is that the commissioner consider all relevant circumstances
(see paragraphs 78 and 79 of the judgment). Navsa AJ, who wrote for
the majority, said the following at paragraph 75:
‘It is a
practical reality that in the first place it is the employer who
hires and fires. The act of dismissal forms the
jurisdictional basis
for the commissioner, in the event of an unresolved dismissal
dispute, to conduct arbitration in terms of
the LRA. The commissioner
determines whether the dismissal is fair. There are therefore no
competing “discretions”.
The employer and commissioner
each play a different part. The CCMA correctly submitted that the
decision to dismiss belongs to
the employer but the determination of
its fairness does not. Ultimately, the commissioner’s sense of
fairness is what must
prevail and not the employer’s view’.
(See also Engen
Petroleum v Commission for Conciliation, Mediation and Arbitration &
others (2007) 28 ILJ 1507 (LAC), where
Zondo JP rejected the
reasonable employer test as the basis for determining the fairness of
a dismissal for misconduct, and the
endorsement of that rejection in
paragraph 73 of the Sidumo judgment.)
[6] Adv. Mbenenge
SC, who appeared for the third respondent, submitted that a more
benign interpretation of the commissioner’s
statement on
sanction should be adopted. In particular, he submitted that the
applicant had not shown that the commissioner had
deferred the matter
of an appropriate sanction to the employer, nor that the sanction
imposed by the chairperson of the disciplinary
hearing had been shown
to have been arrived at fairly. In particular, the offences that
formed the basis of the charges against
Kerr Hoho were serious and
other aggravating circumstances, including the state of his
disciplinary record, justified his dismissal.
[7] It is
regrettable that the terseness of the commissioner’s award
fails fully to reveal his reasoning in relation to sanction.
However,
to the extent that paragraph 40 of the award refers to the
commissioner’s findings of misconduct, to Kerr Hoho’s
‘unrepentant nature’ and to his previous disciplinary
record as relevant factors (which indeed they are), these are,
on the
face of it, viewed through the lens of reasonableness. More
precisely, the enquiry conducted by the commissioner was whether
the
third respondent’s decision to dismiss fell within a band of
decisions to which a reasonable decision-maker could have
come. This
is manifestly not the test that Sidumo requires commissioners to
apply. The test requires that commissioners do not
defer to the
sanction imposed by employers; commissioners are required to decide
whether the employer’s decision was fair
by taking the totality
of circumstances and all the relevant factors into account and by
conducting a balanced and equitable assessment
of all of those
factors in an impartial way, avoiding the substitution of a personal
opinion for that of the employer. The correct
approach is set out in
paragraph 78 of the Sidumo judgment. It requires a commissioner to
take into account the totality of the
circumstances, the importance
of the rule found to have been breached, the reason that the employer
decided to dismiss, the basis
of the challenge to dismissal, the harm
caused by the employee’s conduct, whether additional training
or instruction is appropriate,
the effect of the dismissal on the
employee and the employee’s service record. This is not an
exhaustive list. In short:
it was not open to the commissioner to
ask (as he did) whether any reasonable decision-maker (i.e. employer)
could have arrived
at the decision to dismiss; he was obliged to
undertake the analysis described above.
[8] In the absence
of any further elucidation of the evidence in relation to sanction
and any assessment of that evidence which
reflects a proper enquiry
into what constitutes a fair sanction in the circumstances, I am
drawn to conclude that the commissioner,
by subjecting the third
respondent’s decision to dismiss to a test of what a reasonable
employer might have done in the circumstances,
misconceived the
nature of the enquiry that he was obliged to undertake. In short, the
commissioner asked the wrong question and
in doing so, applied the
wrong test. On this basis alone, in terms of the applicable
principles regulating the right to review
in terms of s 145 of the
LRA, the commissioner’s award stands to be reviewed and set
aside.
[9] Both parties
agreed that in the event that the commissioner’s award was set
aside, it should be referred back to the same
commissioner for him to
conduct the enquiry into an appropriate sanction on the basis of the
test established by Sidumo. This would
appear to be a pragmatic and
principled way forward – the papers in this matter of
voluminous and this matter has taken some
time to reach the point of
a hearing in this court. The commissioner is best placed, having made
findings in relation to conduct,
to identify all of the factors
relevant to sanction, properly assess them and come to a decision
that is fair.
[10] Finally, in
relation to costs, this court has a broad discretion in terms of s
162 of the LRA to make orders for costs according
to the requirements
of the law and fairness. I must necessarily take into account the
fact that the parties are collective bargaining
partners and the
court’s reluctance to make orders for costs in these
circumstances. I must also take into account that the
applicant in
effect abandoned most of its grounds of review at a very late stage
in the proceedings, when the issue of the commissioner’s
approach to sanction was raised and supplementary heads of argument
filed. In the circumstances, it seems to me that the requirements
of
the law and fairness are best served by each party paying its own
costs.
[11] For these
reasons, I make the following order:
11.1. The
arbitration award issued by the second respondent on 5 November 2012
under case number ECEL 3268-11 is reviewed and set
aside.
11.2. The matter is
remitted to the second respondent to the extent that the second
respondent is directed to determine a fair sanction
for the
misconduct that he found to have been committed by Kerr Hoho.
11.3. There is no
order for costs.
ANDRÉ VAN
NIEKERK
JUDGE OF THE
LABOUR COURT
Appearances
For the
applicant: Advocate M. Zondo
Instructed by MPM
Attorneys
For the third
respondent: Advocate SM Mbenenge SC
Instructed by the
State Attorney