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[2015] ZALCJHB 145
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UASA obo Monageng v Commission for Conciliation, Mediation and Arbitration and Others (JR1071/12) [2015] ZALCJHB 145 (8 May 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR 1071/12
DATE:
08 MAY 2015
Not
Reportable
UASA obo B
MONAGENG
....................................................................................................
Applicants
And
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
..........................................................................
First
Respondent
N
MBHELE
NO
........................................................................................................
Second
Respondent
SOUTH
AFRICAN AIRWAYS (PTY)
LTD
..............................................................
Third
Respondent
Heard:
27 February 2014
Delivered:
8 May 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
This is an opposed application brought in terms of the provisions of
section 145 and/or section 158 (1) (g) of the Labour Relations
Act
(The LRA) to review and set aside an award issued by the second
respondent (Commissioner) under case number GAEK 7066-11 dated
20
March 2012. In the award, the Commissioner found that the
dismissal of the applicant (Monageng) by the third respondent
(SAA)
was substantively fair.
[2]
The relief sought by the applicant in the Notice of Motion is
curiously framed in the following terms:
“
Substituting
the award issued by the second respondent with an order that the case
must be referred back to the CCMA for an arbitration
afresh before
another Commissioner”
“
Alternatively,
directing that the matter be referred back to the First Respondent
for consideration de novo before a Commissioner
other than the second
respondent”
Background to the
application:
[3]
Monageng was employed by SAA with effect from September 1992 as a
Customer Service Agent for 9 years. In 2001 she was promoted
to the
position of Team Leader: Domestic Arrivals, and was
inter alia
,
responsible for the supervision of about 16 other employees who were
employed as Customer Service Agents. Monageng held that position
until her dismissal on 13 October 2011 following upon a disciplinary
enquiry into allegations of misconduct pertaining to dishonesty.
[4]
The allegations against Monageng followed upon a grievance lodged
against her on 6 August 2010 by SATAWU on behalf of its members
(the
Agents) who worked under her team. The grievance against Monageng
pertained to allegations of dishonest time keeping on 13
different
occasions between the period April 2010 and July 2010.
[5]
Pending the investigations into the grievances, Monageng was then
removed from the Domestic Arrivals to Domestic check-in by
her
manager Susan Venter. The investigations took longer than necessary
to complete due to the reason that SATAWU initially objected
to
persons appointed to lead the investigation. In this regard, Susan
Venter, Monageng’s manager was initially tasked with
the
investigations but had to recuse herself. Archibald Marawa then took
over and also recused himself. Pumi Kumalo also conducted
the
investigations but could not finalise them. Marawa was brought back
for a short period and still did not complete them. Ultimately,
another person, Boshoff took over and concluded the investigations
around end of July 2011.
[6]
On 1 September 2011, Monageng was issued with a suspension letter.
She was then on 17 August 2011, provided with a notice to
attend a
disciplinary enquiry scheduled to take place on 25 August 2011, and
to answer to 13 allegations of dishonest time keeping.
All the
allegations related to Monageng having wilfully recorded incorrect
times that she had either arrived at or left the working
station
during varying times in April, May, June and July 2010.
[7]
Following the disciplinary hearing, Monageng was found guilty on all
the charges and was dismissed on 13 October 2011. A dispute
was
referred to the CCMA on 26 October 2011. Following arbitration
proceedings held on 29 February 2012 and 8 March 2012, Monageng’s
dismissal was found to be substantively fair.
The arbitration
proceedings and the award:
[8]
Three witnesses, Nyamutsha, Marawa and Khoza had testified on behalf
of SAA whilst Monageng had testified in her case and called
upon
Venter to testify on her behalf. In support of the allegations
against Monageng, SAA relied upon its event log documents,
which had
recorded the times Monageng had accessed or exited the parking area
using her access card and the time sheets. Marawa
was Monageng’s
manager and had testified about three instances where Monageng had
incorrectly recorded her arrival times.
Khoza had testified about
being asked by Monageng to perform her duties whenever she arrived
late and the reason the grievance
was lodged.
[9]
Monageng’s evidence was that she was not aware of the event log
until she attended the disciplinary enquiry. She could
not during the
arbitration proceedings, recall the reasons for the different times
recorded on the event log as compared to what
was recorded in the
time sheets. She could not recall whether she had always advised her
then manager Venter whenever she was running
late or had to leave
early. Her time keeping was not questioned until the investigations
and her dismissal. She had denied having
asked Khoza to perform her
duties. Her contention was further that the access card was merely
for access and exiting the parking
area, and not meant to monitor
time keeping.
[10]
Having summarised and analysed the evidence, the Commissioner
concluded that:
10.1
SAA’s version was more probable, and that Monageng’s
version should be rejected as it was false.
10.2
There were discrepancies in regards to the times recorded in the time
sheets and the event log.
10.3
The period between the lodging of the grievance and the time of
charging Monageng was long, but this did
not prevent Monageng from
getting evidence from the airport parking officials to support her
version that she normally parked her
vehicle at the airport after
accessing the parking area.
10.4
Venter as Monageng’s manager trusted her and did not monitor
her, and could thus not know whether she
arrived late or left the
workstation early on the days in question.
10.5
Monageng failed to submit any evidence contrary to that of SAA.
10.6
The argument of inconsistent application of discipline should be
rejected.
10.7
Monageng was employed in a position of trust and her conduct
constituted dishonesty, which had a destructive
effect on an
employment relationship, rendering continued employment intolerable.
The
legal framework pertaining to review applications:
[11]
In considering whether an award is reviewable, the test is that as
laid down in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
.
The reviewing Court is required to enquire whether the decision
reached by the arbitrator is one that a reasonable decision-maker
could not reach on the material placed before him or her.
[12]
Where the review application is based on an alleged irregularity
committed by a Commissioner, the enquiry in line with the
Sidumo
test
is whether the Commissioner misconceived the nature of the enquiry or
arrived at an unreasonable result.
[2]
[13]
Flowing from the explication of the review test in
Herholdt
v Nedbank Ltd
and in
Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others
[3]
,
the Labour Appeal Court recently held in
Head
of the Department of Education v Mofokeng and Others
[4]
(per Murphy AJA) summarised the relevant principles as follows;
“
The
failure by an arbitrator to apply his or her mind to issues which are
material to the determination of a case will usually be
an
irregularity. However, the Supreme Court of Appeal (“the SCA”)
in
Herholdt v Nedbank Ltd
and this court in
Goldfields Mining
South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others
have held that before such an irregularity will result in the setting
aside of the award, it must in addition reveal a misconception
of the
true enquiry or result in an unreasonable outcome.
The determination of
whether a decision is unreasonable in its result is an exercise
inherently dependant on variable considerations
and circumstantial
factors. A finding of unreasonableness usually implies that some
other ground is present, either latently or
comprising manifest
unlawfulness. Accordingly, the process of judicial review on grounds
of unreasonableness often entails examination
of inter-related
questions of rationality, lawfulness and proportionality, pertaining
to the purpose, basis, reasoning or effect
of the decision,
corresponding to the scrutiny envisioned in the distinctive review
grounds developed casuistically at common law,
now codified and
mostly specified in section 6 of the Promotion of Administrative
Justice Act (“PAJA”); such as failing
to apply the mind,
taking into account irrelevant considerations, ignoring relevant
considerations, acting for an ulterior purpose,
in bad faith,
arbitrarily or capriciously etc. The court must nonetheless still
consider whether, apart from the flawed reasons
of or any
irregularity by the arbitrator, the result could be reasonably
reached in light of the issues and the evidence. Moreover,
judges of
the Labour Court should keep in mind that it is not only the
reasonableness of the outcome which is subject to scrutiny.
As the
SCA held in
Herholdt
, the arbitrator must not misconceive the
inquiry or undertake the inquiry in a misconceived manner. There must
be a fair trial
of the issues.
However, sight may
not be lost of the intention of the legislature to restrict the scope
of review when it enacted section 145 of
the LRA, confining review to
“defects” as defined in section 145(2) being misconduct,
gross irregularity, exceeding
powers and improperly obtaining the
award. Review is not permissible on the same grounds that apply under
PAJA. Mere errors of
fact or law may not be enough to vitiate the
award. Something more is required. To repeat: flaws in the reasoning
of the arbitrator,
evidenced in the failure to apply the mind,
reliance on irrelevant considerations or the ignoring of material
factors etc. must
be assessed with the purpose of establishing
whether the arbitrator has undertaken the wrong enquiry, undertaken
the enquiry in
the wrong manner or arrived at an unreasonable result.
Lapses in lawfulness, latent or patent irregularities and instances
of dialectical
unreasonableness should be of such an order
(singularly or cumulatively) as to result in a misconceived inquiry
or a decision which
no reasonable decision-maker could reach on all
the material that was before him or her.
Irregularities or
errors in relation to the facts or issues, therefore, may or may not
produce an unreasonable outcome or provide
a compelling indication
that the arbitrator misconceived the inquiry. In the final analysis,
it will depend on the materiality
of the error or irregularity and
its relation to the result. Whether the irregularity or error is
material must be assessed and
determined with reference to the
distorting effect it may or may not have had upon the arbitrator’s
conception of the inquiry,
the delimitation of the issues to be
determined and the ultimate outcome. If but for an error or
irregularity a different outcome
would have resulted, it will
ex
hypothesi
be material to the determination of the dispute. A
material error of this order would point to at least a
prima facie
unreasonable result. The reviewing judge must then have regard to the
general nature of the decision in issue; the range of relevant
factors informing the decision; the nature of the competing interests
impacted upon by the decision; and then ask whether a reasonable
equilibrium has been struck in accordance with the objects of the
LRA. Provided the right question was asked and answered by the
arbitrator, a wrong answer will not necessarily be unreasonable. By
the same token, an irregularity or error material to the
determination
of the dispute may constitute a misconception of the
nature of the enquiry so as to lead to no fair trial of the issues,
with the
result that the award may be set aside on that ground alone.
The arbitrator however must be shown to have diverted from the
correct
path in the conduct of the arbitration and as a result failed
to address the question raised for determination.”
The grounds for a
review:
[14]
The crux of the applicant’s case is that the Commissioner
misconstrued the evidence before her, incorrectly applied the
legal
principles and disregarded relevant material evidence placed before
her. It was further submitted on behalf of the applicants
that the
conclusion arrived at was not a conclusion which a reasonable
decision maker would have arrived at. In summary, it was
submitted
that;
14.1
The Commissioner misconstrued the evidence before her. In this
regard, it was submitted that there was no
evidence before the
commissioner to justify the delay between the lodging of the
grievance and the institution of the disciplinary
enquiry. The
Commissioner despite having accepted that there was a delay
nevertheless found against Monageng in circumstances where
she could
not recall events that took place two years earlier.
14.2
The Commissioner applied incorrect legal principles in that Marawa’s
evidence was based on hearsay,
as he was not present when the alleged
offences took place. The Commissioner failed to understand or take
into account the fact
that SAA failed to discharge the onus of
proving fairness of the dismissal, and sought to shift the onus of
proof on Monageng.
14.3
The Commissioner disregarded material or relevant evidence placed
before her, and failed to appreciate that
Monageng’s attendance
was not measured by arrival and exiting of the parking area, and that
the event log could not prove
allegations of dishonest time keeping.
The Commissioner further failed to take into account that no evidence
was presented to refute
Monageng’s evidence that Venter was
told whenever she was running late or leaving early.
[15]
The Labour Appeal Court in
Goldfields
Mining South Africa (Pty) Limited (Kloof Gold Mine v CCMA &
Others
[5]
held that in assessing whether the result of an award is
unreasonable, the reviewing court should not adopt a piecemeal
approach,
and must further enquire whether;
“……
..
(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 or she 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? (v) Is the arbitrator’s decision one
that another decision-maker could reasonably
have arrived at based on
the evidence?
[6]
[16]
SAA’s response to the review application was that the
Commissioner reached the correct result and that the award was
unassailable. It further submitted that the grounds relied upon by
the applicants were akin to grounds of appeal, and accordingly,
they
had not made out a proper case for review.
[17]
In terms of the approach adopted in
Goldfields
by the LAC,
despite the applicants contending that Monageng was prevented from
having the dispute determined fully and fairly,
I did not understand
in what material respects this was the case, and there is no reason
to doubt that indeed the Commissioner
had afforded the parties a full
opportunity to have their say in respect of the dispute before her.
[18]
Where a Commissioner misconstrues the nature of the enquiry at
arbitration proceedings, it follows that she cannot arrive at
a
reasonable result. In regards to the question whether the
Commissioner had identified the dispute she was required to
arbitrate,
in the award, the Commissioner had clearly identified the
issue to be decided as being whether the dismissal of Monageng was
substantively
fair, and I did not understand the applicants’
case to contend otherwise. Furthermore, from the grounds of review as
pleaded,
I did not understand the applicants’ case to be that
the Commissioner misunderstood the nature of the dispute she was
required
to arbitrate.
[19]
The question whether Commissioner dealt with the substantial merits
of the dispute entails an evaluation of whether the Commissioner
had
properly captured the essence of the dispute before her; whether she
had properly considered, evaluated or analysed all the
relevant
material placed before her and applied her mind to that material in
coming to her conclusion.
[20]
The applicant’s main contention was that the Commissioner had
misconstrued the evidence before her and in particular,
in respect of
acknowledging that there was a length of time between the lodging of
the grievance against Monageng and the institution
of disciplinary
proceedings. As already indicated, it was contended that the
Commissioner failed into account that the time lapse
might have
affected Monageng’s ability to recollect events in respect of
the dates it was alleged the transgressions took
place.
[21]
When the courts make reference to ‘material placed before a
Commissioner’, it can only be in reference to the oral
evidence
presented and documentary material before a Commissioner and nothing
more. Thus where a Commissioner relies on material
that was never
placed before her, there would be grounds to find that there was
gross irregularity on her part. As it was stated
in
Head
of the Department of Education v Mofokeng and Others
[7]
,
mere flaws in the reasoning of the arbitrator, evidenced in the
failure to apply the mind, reliance on irrelevant considerations
or
the ignoring of material factors etc. must be assessed with the
purpose of establishing whether the arbitrator has undertaken
the
wrong enquiry, undertaken the enquiry in the wrong manner or arrived
at an unreasonable result.
[22]
In this case, what was placed before the Commissioner was the
evidence of the individuals identified elsewhere in this judgment,
her own evidence, that of Venter on her behalf and documentation. The
issue before the Commissioner was whether Monageng’s
dismissal
on account of misconduct pertaining to dishonesty in regards to
irregular time keeping was fair or not. The Commissioner
had properly
dealt with the evidence pertaining to the delay referred to above and
had concluded that despite that delay, nothing
prevented Monageng
from acquiring evidence to support her contentions that she used to
park her vehicle somewhere and thereafter
access the airways parking
area. In this regard, the Commissioner’s reasoning cannot be
faulted in view of the fact that
if it was Monageng’s testimony
that there was evidence that could have assisted her in recollecting
events, it was up to
her to secure such evidence. Even if such
evidence was within the knowledge of SAA or in its possession,
Monageng could have requested
that such evidence to be discovered.
This could not be construed as shifting the question of onus on
Monageng, in that she had
to corroborate her defence to the
allegations against her.
[23]
To the extent that what was placed before the Commissioner was the
event log, which was compared with the time sheet, the Commissioner
cannot be faulted from relying on nothing other than what was before
her. The Commissioner clearly took cognisance of the fact
that the
event log was not used to monitor attendance, but was only one of the
factors taken into account in establishing whether
there was
irregular time keeping.
[24]
What the Commissioner had to consider in regards to the evidence
presented was whether the dismissal was fair. It was common
cause
that the grievances were lodged against Monageng in the light of
complaints by her subordinates that she was not adhering
to time
keeping. SAA had relied upon the event log and the time sheets in
pointing out discrepancies in Monageng’s time keeping.
What was
required of Monageng was to give an account or at least attempt one,
notwithstanding the time lapses between the transgressions,
the
disciplinary enquiry and the arbitration proceedings. Her responses
in this regard during an exchange during her cross-examination
in the
arbitration proceedings is instructive as evident from the
transcribed record
[8]
, which
went as follows:
“
RESPONDENT
REPRESENTATIVE: Ms Monage (Monageng) there is a highly probability
that you might have parked outside the airport and
went in and then
to airways but in terms of the events log how do you justify a
situation where, on several occasions you left
earlier than you are
supposed to have left, what would the reason be for you leaving
earlier you know in terms of arrival you might
– there is a
probability that you might have parked outside the airport and sign
on and drove to Airways park to park your
car. Now all – and it
happened on numerous occasions whereby you claimed that you left at
the particular time but you left
early, how do you justify that?
(Sic
)
MS
BRENDA MONAGE: Let me give you a scenario of what happens. The
parking area I am not given – when can you go out and when
you
can come in, so if I get out of the parking early it does not mean I
have gone home. There could be reasons, if I borrowed
a car for
example if the owner of the car wants the car I would go to the
parking, take out the car, give it to the owner and go
back to work
so there could be any reason – it could it could be something,
can't tell you. Like I said if I was asked in
2010 why did you leave
then I would say I was giving my brother the car, I was borrowing –
I am not using my car I borrowed
somebody's car so he is here to come
and fetch it. But then for now can't justify that, because it two
years down the line and
can't be expected you cannot expect me to
tell you what happened on the 6
th
of August 2010 or in the period the World Cup. This was the period of
the World Cup I cannot answer that.
(Sic)
RESPONDENT
REPRESENTATIVE: So do you want to tell me over the period all the
time you were using somebody else's car or you were
going to give
your brother a car that is why you were leaving early?
MS BRENDA MONAGE:
I have no idea what could have transpired you are too late to ask me
that question unfortunately Sir.”
[25]
In the light of these exchanges and Monageng’s response, it was
apparent that she could not give a plausible or probable
account of
the discrepancies identified between the times in the event log and
the time sheets. Her contention was that the event
log was not
determinative of her attendance or movements. This was conceded by
SAA. However, Monageng had no other probable or
plausible
explanation. In these circumstances, the conclusion arrived at by the
Commissioner that SAA’s version was more
probable is
unassailable, and there is therefore no basis for a conclusion to be
reached that the Commissioner had misconstrued
the evidence.
[26]
The applicants had further contended that the Commissioner had failed
to apply the correct legal principles in regards to hearsay
evidence.
This was in regards to the evidence of Marawa, whom the applicants
had contended was not present when the grievance against
Monageng was
lodged, or even present when the alleged offences took place.
[27]
Despite summarising Marawa’s evidence, nowhere in the analysis
is such evidence referred to with any particularity and
it is doubted
from the award that any weight was attached to it. To this end, I do
not understand in what context it was alleged
that Marawa’s
evidence, was relied upon without due regard to the applicable legal
principles relating to the admission of
hearsay evidence. In the
award, the Commissioner had merely stated that SAA’s version
was more probable and should be accepted,
and I did not understand
that part of the award to be merely in reference to the evidence of
Marawa, which it was alleged to have
been hearsay, to the exclusion
of that of Nyamutsha and Khoza on behalf of SAA.
[28]
It was further submitted that the Commissioner had disregarded
relevant material and evidence, and in particular, the evidence
of
Venter, who had testified that Monageng was not measured by the event
log. The Commissioner had dealt with Venter’s evidence
by
stating that as she did not monitor her, she had trusted that she
would be at work on time, it was more than probable that she
(Venter)
did not know whether Monageng was coming late or leaving early.
[29]
The Commissioner had accepted that the event log was not a clocking
system, but that Monageng had not presented any evidence
to rebut
that of SAA. In the light of the Commissioner’s analysis and
conclusions, it cannot be said that she had disregarded
Venter’s
evidence, and the fact that it was not dealt with in the manner that
the applicants had expected does not imply
that it was ignored.
[30]
Submissions made to the effect that the Commissioner failed to deal
with the issue of inconsistency in the application of discipline
in
the light of evidence presented that other employees were similarly
not adhering to time keeping are also without merit. Monageng
was a Team Leader and it was expected of her in her capacity to be
exemplary. Team Leaders worked on a shift basis in accordance
with a
roster system, and had to take over their duties from other Team
Leaders who were on earlier shifts. In this regard, it
was expected
of Team leaders to arrive 30 minutes prior to the commencement of
their shifts for the purposes of preparations for
a take over. Team
Leaders are in a position of trust and responsibility, and it is
expected of them to adhere to clocking times
without having to be
supervised, as they are responsible for the supervision of their
subordinates.
[31]
A
claim of inconsistency can never succeed where an employer is
able to differentiate between employees who committed
similar
transgressions on the basis of,
inter
alia
,
differences in personal circumstances, the severity of the misconduct
or on the basis of other material factors. Furthermore,
in
appropriate cases an employer may be justified in differentiating
between two employees guilty of the same transgression on
the basis
of their personal circumstances or on the merits of their respective
cases
[9]
.
[32]
In this case, the Commissioner had corectly rejected arguments
surrounding inconsistency on the basis that SAA was not aware
on the
evidence that there were other employees who had committed similar
transgressions, and neither had Monageng led evidence
to the effect
that SAA was indeed aware of such similar cases. Nevertheless, even
if such cases had come to the attention of SAA,
in the light of
Monageng’s position of authority, responsibility and trust, and
further in the light of the continuous nature
of the transgressions,
a claim of inconsistency was correctly rejected by the Commissioner.
Conclusion:
[33]
The grounds of review as relied upon in this case have not laid a
basis for any conclusion to be reached that the Commissioner
committed any gross irregularity in the conduct of the proceedings,
nor has it been established that there is a basis for the Court
to
interfere with the award on any ground contemplated in section 145 of
the LRA. The piece-meal approach of the applicants in
this review
application unfortunately typifies the one that the Labour Appeal
Court in
Goldfields
warned the review courts to guard against.
[34]
It is accepted that the Commissioner did not deal at length with the
evidence presented nor did she give much detail in her
analysis. This
however does not imply that her reasoning was flawed or that there
was no fair trial of the issues before her. Furthermore,
the
provisions of section 137 (7) (a) of the LRA requires of a
Commissioner to issue an award with brief reasons. What is of
importance
ultimately is whether the Commissioner had captured the
essence of the dispute, applied her mind to those salient facts, and
arrived
at a decision, which falls within the band of reasonableness.
In this case, no basis has been laid that
there was
a misconception of the true
enquiry resulting in an unreasonable outcome. To this end, it is
concluded that the Commissioner’s
decision is one that another
decision-maker could reasonably have arrived at based on the evidence
and material placed before her.
SAA had sought a cost order in the
event that the application was dismissed. I however do not hold the
view that a cost order is
appropriate in this case.
Order:
i.
The application to review and set aside the
award issued by the Second Respondent under case Number GAEK 7066-11
dated 20 March
2011 is dismissed.
ii.
There is no order as to costs.
Tlhotlhalemaje,
AJ
Acting Judge of
the Labour Court of South Africa
Appearances:
For
the Applicant: Mr G Manganyi – UASA Official
For
the Third Respondent: T Ngakane of Bowman Gilfillan
[1]
2008
(2) SA 24
(CC) at para 110
[2]
Herholdt
v Nedbank Ltd
(2013) 34 ILJ 2795 (SCA) at para 25.
[3]
[2014]
1 BLLR 20 (LAC).
[4]
[2015]
1 BLLR 50
(LAC) at paragraphs [30] to [34]
[5]
At
para 14
[6]
At
para 20
[7]
Supra
[8]
Page 177 of the record – from line 12 to page 178 line 15
[9]
Southern
Sun Hotel Interests (Pty) Ltd v CCMA & others
[2009]
11 BLLR 1128
(LC). See also
Early
Bird Farms (Pty) Ltd v Mlambo
[1997] 5 BLLR 541
(LAC)