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[2015] ZALCJHB 409
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Passenger Rail Agency of South Africa v Commission for Conciliation, Mediation and Arbitration and Others (JR1654/13) [2015] ZALCJHB 409 (5 August 2015)
IN THE
LABOUR COURT OF SOUTH AFRICA
HELD AT
BRAAMFONTEIN
CASE
NO
: JR1654/13
DATE
:
2015-08-05
In the matter
between
PASSENGER RAIL
AGENCY OF SOUTH
AFRICA
Applicant
and
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION
First Respondent
MOAHLOLI
NYAMA
Second Respondent
DONALD MAKOLA
AND OTHERS
Third
Respondent
JUDGMENT
BODA
AJ
: There are two applications
before me. The first is an application to review and set aside the
decision of Commissioner M
Nyama dated 23 July 2013 under CCMA case
number GAJB12248/12 in terms of which the commissioner found that the
dismissal of the
employee (Donald Makola) was substantively unfair
but procedurally fair, and proceeded to reinstate the employee to his
position
prior to being dismissed without any loss of benefits, but
did not order back pay. The commissioner also ordered the employee to
report for duty on 1 August 2013. PRASA ( the employer).
Not
satisfied with the award the employer has applied for it to be
reviewed and and set aside the award.
The employee
in turn has applied to make the award an order of court.
Before I deal with the merits of the matter, I
just briefly set out the well-known and established principles
governing review applications.
The first
principle is that an arbitrator commits an irregularity if there is
either a failure to appreciate the true nature of
the enquiry or if
the result is unreasonable. In
Andre
Heroldt v Nedbank
(Congress of South African Trade Unions as Amicus Curiae)
(2013)
11 BLLR 1074
(SCA), the Supreme Court of Appeal considered the test
set out in Sidumo and said 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 arrive at an unreasonable result.
In a follow-up case,
Gold
Fields Mining South Africa (Pty) Ltd (Kloof) v CCMA and Others
[2007] ZALC 66
;
(2014) 1 BLLR 20
(LAC), a case that dealt with misconceiving the
nature of the enquiry, the court emphasised that regardless of what
the peg of
the review hangs on, either unreasonableness or
misconceiving the nature of the enquiry, it is still necessary for
the applicant
in the review to show materiality in the sense that the
complained irregularity, if it had not been committed, would have led
to
a different outcome.
The third principle, which is relevant to a review
application, arises from Herholdt itself where the court looked at
the Constitutional
Court case in Sidumo and compared it with the
Sidumo decision of the SCA and then had the following to say on the
approach to reviews
that the Constitutional Court endorsed. It said:
‘On this approach, (referring to the CC’s approach) the
reasoning
of the arbitrator assumes less importance than it does on
the SCA test where a flaw in the reasons results in the award being
set
aside. The reasons are still considered in order to see how the
arbitrator reached the result. That assists the court to determine
whether that result can reasonably be reached by that route. If not,
however, the court must still consider whether apart from
those
reasons the result is one a reasonable decision-maker could reach in
the light of the issues and the evidence.’
From this
one, one gains the principle that you look at the reasons to see if
they are reasonable. But even if they are not, you
look at the
outcome. And if there is other material that justifies the outcome on
the record, the award stands.
Based on
this, these applicable principles, I turn to the award in question
and the matter in question.
The employee
was charged with five charges, which appear in paragraph 57 of the
arbitrator’s award. It reads as follows:
“
Charge
1
: Gross misconduct or alternatively
gross dishonesty in that on or about March 2011 you distributed an
anonymous and defamatory
letter with malicious allegations against
some PRASA executive which you implicated in authoring and
distributing to a third party.
Charge
2
: Gross misconduct in that on or about
March 2011 you abused company property by disseminating an e-mail
letter to other employees
and third parties which contained
defamatory and malicious allegations against some executives in the
form of a letter to a third
party.
Charge
3
: Gross misconduct, alternatively
gross negligence in that on or about March 2011 you deliberately
failed to comply with the company’s
communication policies and
procedures by authoring and distributing defamatory and malicious
allegations against some executives
in the form of a letter to a
third party.
Charge
4
: Gross misconduct in that on or about
March 2011 you breached the company’s intranet and
communication policies and procedures
by distributing defamatory and
malicious allegations against some executives in the form of a letter
to a third party.
Charge
5
: Gross negligence in that on or about
March 2011 you deliberately failed to use company’s formal
structures in communicating
your complaints or dissatisfaction, i.e.
PRASA fraud hotline.
Charge
6
: Gross misconduct, alternatively
gross negligence in that on or about March 2011 you deliberately
opened the company up for litigation
by those individuals who were
slandered in the letter.
Charge
7
: Gross misconduct in that all these
actions by yourself and your counterparts have put the company into
disrepute and have breached
the mutual degree of trust and confidence
which are inherent of your contract of employment.”
The
arbitrator in paragraph 57 accepts that this is what the employee was
found guilty of and that this charge is what led to the
employee’s
dismissal.
The
arbitrator then considered the procedural challenge that the employee
launched. And without dealing in any detail with it, he
found in
paragraph 67 that the dismissal was procedurally fair.
When he went
to substance, he made the following findings; and I quote at
paragraph 68:
“
68.
The applicant denied any knowledge of the document attached to the
e-mail. Magolelwa testified that he conducted
an investigation which
shows that the e-mail was sent from a Yahoo address and that the
attached document was authorised by Insembanyoni
and modified by the
applicant. Magolelwa further testified that the JESE, an independent
ICT company, confirmed his findings.
69.
During cross-examination on Magolelwa, much time was spent on the
terminology of modification. He testified
that the modifier does not
have to make any changes to the document, but would have had access
to the document. The applicant may
not have modified the document,
but he was the last person who saved the document on the 27
th
March 2011 as reflected in the document properties snapshot document.
The document was also reflected on the recent document screen
of the
applicant’s laptop. The applicant [indistinct] privy to the
details of the document.
70.
The contents of the document are indeed malicious, defamatory and
cast aspersions on senior employees of the
respondent. The
allegations also relate to corruption and misuse of the respondent’s
funds by the GCEO. It is undisputed
that the respondent has a fraud
hotline.
71.
Magolelwa further testified that clean-up software, which was not
installed by the respondent, was also found
in the applicant’s
laptop to be used in an attempt to remove traces of the document. The
policy does not allow external software
to be installed on the
company laptops. This was not disputed by the applicant. I thus draw
an inference that the applicant worked
with Insembanyoni in
preparation of the document.”
After the
arbitrator made these adverse findings against the employee relating
to guilt, his function was to then assess whether
in light of those
findings of guilt the sanction of dismissal was appropriate. And if
not, what relief, if any, was to be granted
by the applicant. Those
two issues required the arbitrator to have regard to the evidence
before him and not to have regard to
what happened at the
disciplinary enquiry, because the assessment of the fairness of a
sanction of dismissal is an assessment that
takes place at the CCMA
and not… with due regard to the evidence before it and not
with due regard to the evidence that
surfaced before the disciplinary
chairperson.
What the arbitrator then went on to do was to draw
an adverse inference against the employer for not calling the
chairperson to
justify the findings relating to dismissal. And then
he went through each charge and found that there was no evidence
placed before
him to establish that charge, because the chairman did
not testify. Now, the chairman’s findings was nothing more than
an
opinion and there was no reason for the chairman to testify to
back up the findings, because once the arbitrator found that
the dismissal was procedurally fair, the arbitrator had to determine
the guilt and the sanction, based on the evidence that was
led at the
arbitration before him.
The arbitrator manifestly, in my view,
misconceived the nature of the function of assessing a fair sanction.
This is one of the
primary duties of an arbitrator that is placed on
the shoulders of an arbitrator by the Labour Relations Act, and this
is confirmed
by Sidumo.
By looking at
the charge sheets in a very technical fashion, the arbitrator also
ignored a host of authorities that has come from
the Labour Appeal
Court that indicate to arbitrators that employers would not draft
charge sheets with a modicum of specificity
that one would be used to
in say civil proceedings when people draw pleadings or in criminal
proceedings when prosecutors draw
charge sheets. Employers are often
laypersons and they draft charge sheets; as long as the charge sheet
captures the essence of
the complaint. The arbitrator must then deal
with that complaint. And the Act enjoins the arbitrator to do so with
a minimum amount
of legal formalities. The arbitrator must have
regard to the substance of the dispute.
Now, there was duplication in the charge sheet,
because it was not necessary for the employer to split the charges in
the ways that
he did. But at the end of the day, the entire case
against the employer resolved around his role in circulating or
making common
purpose with Insembanyoni in preparing the document.
And then Insembanyoni circulating the document, which the arbitrator
found
as a matter of fact, was circulated, was defamatory. And the
employee in this matter (Mr Donald Makola) had a hand in preparing
the document.
Now, once the arbitrator made the adverse findings
of guilt, all the arbitrator had to do was assess the fairness of the
sanction.
In my mind,
the failure on the part of the arbitrator to do so is a material
failure in that he did not perform one of the fundamental
statutory
duties assigned to him as arbitrator. And this is material to the
outcome, because had the arbitrator considered it,
the arbitrator’s
result would have, in all probability, been different.
I do not intend second-guessing the issue of
sanction, because what is sought before me is not that I substitute,
but simply that
I review the arbitration award and remit it back. I
am satisfied that, based on the general principles enunciated in the
decisions
I have referred to, that the decision of the arbitrator is
reviewable in so far as it is being challenged.
I want to emphasise that I am not reviewing the
decision of the arbitrator with reference to procedural fairness.
That decision
stands, because there is no counter application. I am
also not interfering with the decision of the arbitrator with
reference to
Mr Donald Makola’s guilt and his involvement in
preparing the document, which the arbitrator finds in paragraph 68 to
72
of the award. Those findings stand, because there is no counter
application to review and set aside those findings.
The review application before me is limited to a
review against the ultimate finding that the employer did not prove
the charges
and the finding relating to the relief. Those decisions
are reviewed and set aside and the matter is then remitted to the
arbitrator,
back to the CCMA, simply to deal with what remains in
issue. What remains in issue is simply for the CCMA to reconsider the
question
of the sanction of dismissal, based on the findings of guilt
already made by it, which have not been challenged. And if the CCMA
finds that the sanction is fair, then the claim should be dismissed.
If the CCMA finds that, notwithstanding the findings of guilt
made in
paragraph 68 to 72, the sanction of dismissal is unfair because it is
too harsh, then the CCMA must determine an appropriate
remedy. The
CCMA does not have to redetermine the findings of guilt made by the
arbitrator and does not have to redetermine the
issue of procedural
fairness. I, accordingly, make the following order:
ORDER
1. There is no counter application to review the findings of
the second respondent that:
1.1 The dismissal is procedurally
fair.
1.2 The
adverse findings made on guilt in paragraphs 68 to 72 of the award.
Accordingly,
these findings are confirmed and stand.
2. The award
of the second respondent dated 23 July 2013 in so far as it relates
to the finding that the dismissal is substantively
unfair and the
relief is reviewed and set aside, the dispute is remitted back to the
CCMA to appoint another arbitrator to reconsider
the fairness of the
sanction and relief, if any, to be granted, based on the acceptance
of the findings referred to in paragraph
1 above.
3 There is no
order as to cost.
4 The
application in terms of section 158(1)(c) is dismissed with no order
as to cost.
- - - -
- - - - - - - - - -
ON
BEHALF OF APPLICANT
:
Adv. Pareen Vahed
INSTRUCTED
BY:
Makhubela Attorneys
ON
BEHALF OF RESPONDENT
: Adv. MD Teffo
INSTRUCTED
BY:
Phaladi Attorneys