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[2015] ZALCJHB 16
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Rosetenville Rentals v Tshuta and Others (JR3072/12) [2015] ZALCJHB 16 (28 January 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR
COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case No:
JR3072/12
DATE: 28 JANUARY
2015
Not Reportable
In the matter
between:
ROSETENVILLE
RENTALS
..................................................
Applicant
And
PHUMLA PATIENCE
TSHUTA
................................
First
Respondent
COMMISSIONER M M
BALOYI N.O
.................
Second
Respondent
THE COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
................................................
Third
Respondent
Heard: 2 July
2014
Delivered: 28
January 2015
Summary: Review
application in terms of
section 145
of the
Labour Relations Act 66 of
1995
as amended. Employee dismissed before disciplinary hearing held
and offered to attend disciplinary hearing subsequently, but to
be
chaired by same person who had fired employee. Decision of
Commissioner that same was procedurally unfair not reviewed.
Commissioner
however failing to consider evidence in relation to the
substantive aspects of the matter. In respect of such
substantive
aspects no reasonable Commissioner, on the evidence
before the Commissioner could have come to the conclusion that the
dismissal
was substantively unfair. Accordingly award reviewed
and set aside in part and substituted in part.
JUDGMENT
SNIDER
AJ
[1]
This is a review application in terms of
which the applicant seeks an order reviewing and setting aside an
arbitration award of
the second respondent (“the Commissioner”)
given by the Commissioner on 16 November 2012.
[2]
Briefly, the background to this matter is
as follows. The applicant is in the business of letting
premises to various entities,
be they individuals or companies.
In the event of the applicant’s tenants defaulting on their
rental payments, the
applicant would take possession of whatever
goods there were at the rented premises, presumably in terms of a
lien or other contractual
right. The mechanism behind the
attachment is not relevant for the purposes of this judgment.
The attached goods were
stored by the applicant in a storeroom on its
premises.
[3]
The first respondent (“the employee”)
was employed by the applicant on a fixed term basis from 1 April 2012
until 30
March 2013, although it emerges from the transcript of the
arbitration which preceded this matter that she had also had previous
periods of employment with the applicant.
[4]
On 25 August 2012 the employee, together
with other employees of the applicant were instructed to clean the
storeroom referred to
above.
[5]
There is some dispute as to the events
which then transpired, but what is common cause is that certain items
belonging to former
tenants of the applicant, that had been attached
by the Applicant as described above, were taken by some of the
employees who were
working at the premises on that day doing the
job of cleaning the storeroom.
[6]
It is also common cause that the employee
was involved, to some degree, in the removal of certain of the said
goods from the applicant’s
premises.
[7]
At the very least, and this appears to be
common cause, the employee gave permission to other of the employees
of the applicant
to take certain items from the storeroom.
There was evidence from the applicant that the goods removed were not
in good condition,
but I do not regard this as being of any great
relevance.
[8]
The employee together with the other
employees and the daughter of the principal of the applicant, Moosa
Abdul Khabeer (“Khabeer”),
whose name is Mishka Khabeer
(“Mishka”) were effectively caught by Khabeer in the act
of removing the said goods from
the applicant’s premises.
The goods were loaded into Mishka’s car in order to be
removed. Although it does
not appear that the employee was
found in physical possession of any of the goods, she was, as set out
above, certainly a part
of the series of events which led to the
removal of the said goods.
[9]
At
the very least she gave permission for the removal to take place.
Shortly after the employee, the other employees and Mishka
departed
the applicant’s premises Khabeer phoned the employee and told
her that she, along with all of the other employees
were “fired”.
[1]
[10]
Although Khabeer has attempted to deny
this, it is plain from the transcript of the arbitration proceedings
that this is what took
place and Khabeer’s evidence in this
regard is highly unsatisfactory, contrived and lacks credibility.
At one point
he seems to advance a version that the employee was both
fired and suspended at the same time. The evidence is absurd.
In regard to this (procedural) aspect of the matter there can be no
question that the Commissioner reached a conclusion that another
reasonable Commissioner could have reached with the same evidence
before him. The Commissioner’s finding in this regard,
to
wit that the dismissal of the Applicant did in fact take place on 25
August 2012 is accordingly not reviewable.
[11]
There cannot be any serious contention that
the employee was suspended as opposed to being dismissed.
[12]
I
accept that in
Semenya
and Others v Commission for Conciliation, Medication and Arbitration
and Others
[2]
it was found that that in principle, a hearing after a decision to
dismiss had been taken could be found to be procedurally fair.
However the decision taken by the Commissioner was still within a
band of reasonableness under the circumstances, particularly
bearing
in mind that in Semenya
supra
the Court, per Zondo JP, as he then was, found that it was highly
significant that the offer of an independent chairperson chairing
the
subsequent disciplinary enquiry, and the continued refusal of the
employee rendered the dismissal procedurally fair under those
particular circumstances and prevented the employee in that matter
from succeeding on the basis of a procedurally unfair
dismissal.
[13]
In this matter the supposed “enquiry”
was chaired by Khabeer and, with respect, having regard to the
transcript, it
does not appear that this hearing would pass muster in
circumstances where Khabeer himself had already told the employee
that she
was fired. The fact that other employees were
re-instated under the circumstances similarly does not avail.
Clearly
they scapegoated the employee in the course of the hearing to
benefit themselves.
[14]
My impression from the transcript was that
the purported disciplinary enquiry was shambolic to say the least.
No fair process
appears to have been followed and,
inter
alia
, evidence against the employee was
heard in her absence.
[15]
The applicant also aprobates and
reprobates. On the one hand the allegation is that the employee
was suspended, not fired,
while on the other hand the Applicant
wishes to argue that even if she was fired, Semenya (
supra
)
applies. The Applicant should have, with respect, chosen which
horse to saddle. These are not alternatives that sit
comfortably together.
[16]
As set out above, I thus have no hesitation
in finding that, on a procedural level, the Commissioner’s
award cannot be reviewed.
[17]
However when the issue of substance is
considered other factors come into play.
[18]
The essence of the employee’s case on
the merits of her misconduct was effectively that she had the
authority, granted to
her by Khabeer, to allow other employees to
take possession of goods which she, in her own discretion, determined
were of no value.
[19]
It is absolutely critical, in my assessment
of this matter, and in view of this defence of the employee, that
this version was not
put to Khabeer by the employee in
cross-examination when she had the opportunity to do so at the
arbitration.
[20]
The
employee, in light of this failure, which is a most basic one, and
follows upon the Commissioner’s detailed explanation
of the
arbitration process
[3]
which
must have alerted the applicant to the need for her to deal with this
issue in cross-examination, cannot be believed when
she says, in her
subsequent testimony, that she had authority. The failure to
cross-examine on the point is fatal to her
in this context.
[21]
The Commissioner simply fails to deal in
any meaningful way whatsoever with the substantive merits of the
matter including,
inter alia
,
the crucial point referred to above.
[22]
The employee clearly implicates herself and
does so repeatedly. She was clearly involved in the removal of
the goods, whatever
they were, and when given the opportunity does
not deal with the key issue which he says exonerates her, that she
was acting under
the authority of Khabeer in doing what she did.
[23]
I am of the view that no reasonable
Commissioner, having regard to the full conspectus of the evidence in
relation to the substantive
issues, could come to the conclusion that
the applicant had been substantively unfairly dismissed. She
was involved in the
removal of the goods and had no explanation as to
why.
[24]
The
principles surrounding the test for reviewability are now notoriously
well known and can be gleaned from
Simudo
and another v Rustenburg Platinum Mines Limited and Others
;
[4]
Herholdt
v Nedbank Limited (Congress of South African Trade Unions as amicus
curiae)
;
[5]
and
Goldfields
Mining (Pty) Limited (Kloof Goldmine) v Commission Conciliation
Medication Arbitration and Others
.
[6]
[25]
The following is, with respect, a useful
exposition of the test from the Judgment of Wagley J P in the
Kloof
decision –
“
Sidumo
does not postulate a test that requires a simple evaluation of the
evidence presented to the arbitrator and based on that
evaluation,
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
(“the
LRA”) continued 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 the 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
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.”
[26]
Bearing in mind what is set out above and
that all of the relevant material is before me I see little sense in
referring this matter
back to the third respondent for re-hearing. I
am strongly of the view that the Applicant should pay an amount to
the employee
which is commensurate with the abysmal procedure it
followed. Accordingly I am inclined to substitute the award of the
Commissioner
and I make the following order -
Order:
i.
The award of the Commissioner that the
dismissal of the employee was substantively unfair is reviewed and
set aside.
ii.
The finding of the Commissioner that the
dismissal was procedurally unfair is not reviewed and remains in
effect.
iii.
The order of the Commissioner that the
applicant is to pay the employee an amount of R28,000.00, being the
equivalent of 7 months
remuneration (the remaining duration of her
fixed term contract, her monthly remuneration having been R4 000) is
reviewed and set
aside and substituted with the following –
iv.
The Applicant is, following on its
procedurally unfair dismissal of the employee, ordered to pay the
applicant the sum of R20 000
being the equivalent of 5 month’s
remuneration of the applicant at the time of her dismissal, being
R4,000 per month.
v.
Given that neither party was entirely
successful or unsuccessful, I make no order as to costs.
SNIDER,
A J
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Mr Ross Atcheson of Lee & McAdam Attorneys
For
the Respondent: Mr Ludwig Frahm-Arp of Fasken Martineau Attorneys
[1]
Transcript
page 23 lines 6 to 10
[2]
(2006)
27 ILJ 1627 (LAC)
[3]
Transcript
page 3 lines 1 to 5
[4]
[2007]
12 BLLR 1097
(CC)
[5]
(2012)
ILJ 1789 (LAC)
[6]
(2014)
35 ILJ 943 (LAC) at paragraph 14