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[2015] ZALCPE 1
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Solidarity obo Wilkinson and Another v Eastern Cape Liquor Board Commission for Conciliation and Others (P 277/12) [2015] ZALCPE 1 (7 January 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
CASE NO P 277/12
DATE: 07 JANUARY 2015
Not Reportable
In the matter between:
SOLIDARITY obo WILKINSON, V.I
and 1
Other
..................................................................................................
Applicant
And
EASTERN CAPE LIQUOR
BOARD
................................................
First
Respondent
COMMISSION FOR CONCILIATION
MEDIATION &
ARBITRATION
..................................................
Second
Respondent
JOHN ROBERTSON
N.O
...............................................................
Third
Respondent
Date heard: 20 November 2014
Date delivered: 7 January 2015
JUDGMENT
VAN NIEKERK J
Introduction
[1] This is an application to review
and set aside an arbitration award issued by the third respondent, to
whom I shall refer as
‘the commissioner’. In his award,
the commissioner found that the dismissal of Mr. V Wilkinson, on
whose behalf the
applicant acts, was substantively and procedurally
fair.
[2] The material facts are to be found
in the arbitration award, and I do not intend to repeat them here. It
is sufficient to state
for present purposes that Wilkinson was
employed by the applicant as a senior liquor inspector. He was
dismissed on 31 December
2010 after being found guilty of a number of
charges relating to a raid on a liquor outlet in Motherwell, the
confiscation of liquor
at the same premises and the detention of a
Mr. Ayanda John, who had been found selling liquor. Also dismissed
was a liquor inspector
Ms Ndema, on similar charges arising from the
same circumstances.
The commissioner’s award
[3] The commissioner’s reasoning
in relation to the substantive fairness of Wilkinson and Ndema’s
dismissals are to
be found at paragraphs 36 to 54 of his award. The
commissioner considered each of the charges brought against Wilkinson
in relation
to the evidence before him. In brief, the charges against
Wilkinson were that he had contravened sections 54 and 55 of the
Eastern
Cape Liquor Act. He had permitted Ndema to raid and close the
liquor outlet Zoscan Trading without the necessary authority, that
he
had contravened section 61 of the Act in that he had allowed Ndema to
authorise the imprisonment of John without following the
necessary
procedures and that he had been grossly negligent in that as a senior
inspector, having been instructed by the chief
inspector to reopen
Zoscan Trading he had failed to carry out that instruction. In
essence, the commissioner found that at the
relevant time, until the
board had cancelled a registration certificate in terms of the ECLA,
it remained valid. On this basis,
the registration certificate had
not been withdrawn and John had a certificate to manage the business.
There was accordingly no
contravention of the ECLA. In any event, the
proper course of action would have been to serve a compliance notice
on John as the
person apparently in control of the premises.
Wilkinson was as guilty on the first charge. Insofar as the charge of
gross negligence
was concerned, the commissioner observed that two
charges were conflated and that Wilkinson and Ndema ought to have
been charged
with insubordination, alternatively negligence in
failing to obey an instruction. Insofar as Wilkinson and Ndema had
submitted
that they had complied with the instruction given to them
by the chief inspector Mr. Tyikwe , the commissioner observed that
notwithstanding
their view that the instruction of the chief
inspector was illegal, they had eventually complied with the
instruction after a follow-up
by Tyikwe. The commissioner concluded
as follows:
‘[50] Had the applicants been
firmly of the view that they were in the right one would expect that
they would not have complied
with the chief inspectors instruction
when it was given and insisted that he attend to it alternatively
seek legal advice or approach
the courts. They did none of these
which leads inescapably to the inference that for reasons best known
to the applicant they instituted
the raid against Mr A John and did
not wish to restore the status quo.
[51] Given the gross breach of Mr A
John’s rights, the potential for adverse civil claims, the time
that had already passed
by the time the chief inspector became aware
the matter I am of the view that the applicant is guilty of
insubordination.’
[4] The final charge against Wilkinson
was that he had committed gross misconduct by advising Ndema to
refrain from reversing the
closure of Zoscan Trading. For reasons
already recorded, the commissioner rejected Wilkinson’s defence
that Zoscan had not
been closed. The commissioner concluded that if
Wilkinson had been convinced that the chief inspector was correct in
his understanding
of the ECLA, he would have ensured that instruction
was expedited. If he was of the view that the chief inspector was
wrong, then
he would have pointed this out and refused instruction.
He did not do this and the delay given the circumstances of the time
in
the implementation of the instruction suggested for the
commissioner that some ulterior motive was involved. Wilkinson was
accordingly
found guilty on this charge.
[5] In relation to the sanction, the
commissioner considered a number of factors and came to the
conclusion, expressed in paragraph
69 of the award, in the following
terms:
‘It is beyond belief that the
applicants would genuinely believe that they could institute
procedures leading to prosecution
terms of section 19 of the ECLA in
the circumstances of this case. The only inference to draw from this
is that they had an ulterior
motive and considered it better to
dispute the meaning of the ECLA and manual rather than share their
reason with the respondent….’
[6] The commissioner noted that the
first respondent had indicated that it would not have dismissed the
applicants have they admitted
the error and undertaken not to commit
similar misconduct in future. However, they had shown no remorse and
in the circumstances,
the commissioner concluded that ‘the
respondent clearly cannot afford the risk of the continued employment
of the applicants
for fear of similar conduct which goes to the core
of the applicant’s functions. There is a certain recalcitrance
and lack
of trust on the part of the applicants in not being open
with the respondent as to their true motives. The commission
accordingly
found that the dismissal was an appropriate sanction.
The applicable principles
[7] The legal principles to be applied
are well established. The test for review focuses on the
reasonableness of the outcome. In
Herholdt v Nedbank Ltd (2013) 34
ILJ 2795 (SCA) the Supreme Court of Appeal clarified the relationship
between the constitutional
requirement of reasonableness and the
grounds for review in s 145(2) of the LRA. The concept of gross
irregularity in the conduct
of arbitration proceedings is not
confined to the situation where the arbitrator misconceived the
nature of the enquiry; it extends
to those instances where the result
is unreasonable. A result is unreasonable if and only if it is one
that a reasonable arbitrator
could not reach on all the material that
was available. Material errors of fact, as well as the weight and
relevance to be attached
to particular facts are not in themselves a
basis for an arbitration award to be set aside. These are relevant
only if their consequence
is to render the outcome of the proceedings
under review unreasonable. In Goldfields Mining South Africa (Pty)
Ltd v Commission
for Conciliation Mediation and Arbitration and
others (2014) 35 ILJ 943 (LAC) the LAC confirmed this approach and
held that it
was the function of a reviewing court to ascertain
whether the arbitrator considered the principal issue before him or
her, evaluated
the facts at the hearing and come to a conclusion
which was reasonable to justify the decision to which he was she had
come. What
is to be avoided is an approach that invites the reviewing
court to consider and analyse every issue raised at the arbitration
and to regard a failure by the arbitrator to consider all or some of
the issues, even if they are material, as rendering the award
reviewable on the basis of a process -related review. It is apparent
from this formulation that the threshold in a review application
is
set high, and as the LAC once observed, it is not often that an
applicant in a review application will succeed.
The grounds for review
[8] The applicant grounds for review
are not clearly articulated and to a large extent, directed at what
are referred to as ‘unreasonable
findings’ irrationally
connected to the issues that the commissioner was required to decide.
It is possible to distil a
number of key complaints identified by
the applicants – these include the averment that the
commissioner found Wilkinson
guilty of charges that were not
applicable having regard to the facts, that he (the commissioner)
misunderstood and disregarded
material evidence, and that he reached
a conclusion that is not based on the material before him. All of
these grounds smack of
an appeal rather than a review. The
reasonableness test is not referred to in any material sense, but for
the concluding paragraph
in the founding affidavit to the effect that
the commissioner reached a ruling which a reasonable decision-maker
could not reach
‘when he found that us applicants were
dishonest and there is a breach of trust. The third respondent
clearly indicates a
conjecture of evidence in his finding (sic)’.
Analysis
[9] What the applicants have done is
precisely what the Labour Appeal Court in Goldfields has enjoined
litigants not to do –
to engage in a nit-picking exercise in
which every sentence of the award under review is scrutinised and
criticised. In the present
instance, insofar as the grounds for
review invite the court to have regard to particular aspects of the
evidence and in particular,
to the weight which the commissioner
accorded or failed to accord them, this is not of any consequence.
The commissioner clearly
understood the nature of the enquiry before
him, afforded the parties a fair opportunity to present their
respective cases, and
applied his mind to the evidentiary material
before him. I do not understand this to be disputed. Insofar as the
applicant contends
that the commissioner’s conduct
notwithstanding, the decision to which he came was not one to which a
reasonable decision-maker
could come in the circumstances, in my
view, there is no merit to that submission.
[10] The applicant contends that the
evidence before the commissioner discloses that Ayanda John, given
the eviction of the Koyanas,
was trading for his own account despite
being registered as a manager of Zoscan Trading. The applicant
contends further that a
compliance notice could not be issued in the
circumstances as it had to be served on the owner of the licence, and
the prosecution
was the only option as Zoscan Trading was selling
liquor without a licence. The applicant submits that the evidence
exculpatory
Wilkinson and Ndema since neither closed down Zoscan
Trading; and that Ayanda John was arrested by the SAPS and that the
SAPS confiscated
the liquor. These are of course the same submissions
made before the commissioner. As the award discloses, the
commissioner dealt
with these defences inter alia by making the point
that the registration of Zoscan Trading had never been cancelled by
the ECLB,
which meant that that entity was permitted to trade until
such time as its registration had lapsed or it was cancelled by the
ECLB.
In the circumstances, Zoscan Trading was trading lawfully. The
commissioner further observed that Wilkinson and Ndema were entitled
to issue a compliance notice, which was in the circumstances thus
giving Zoscan Trading notice of what remedial action was required,
together with a reasonable opportunity to undertake that action. In
relation to the conduct of the SAPS, the commissioner clearly
found
that had Wilkinson and Ndema not initiated the raid, the arrest and
confiscation of liquor and closing of the outlet would
not have
occurred – the fact that the SAPS effected the arrest and
confiscation was not relevant. These are by no means unreasonable
conclusions drawn from the available evidence – they may not be
the only conclusions to be drawn and there may be other conclusions
that are correct or equally reasonable. However, in terms of the
applicable principles, that is of no consequence.
[11] Given the nature of the
submissions made in the applicant’s heads of argument, I should
emphasise that it is not for
this court to engage in an
interpretation of any of the relevant sections of the ECLA, or to
decide whether the commissioner’s
decisions in this regards
were correct. Wilkinson and Ndema were not on trial for contravening
the provisions of the ECLA –
they were charged with misconduct
which had its roots in the Act that they were obliged to implement.
The commissioner clearly
took a holistic view of what was expected
from Wilkinson and Ndema as inspectors both in relation to the
provisions of the Act
and the instructions of the chief inspector,
and found them wanting. As I have indicated, that is not a conclusion
to which a reasonable
decision-maker could not come on the available
evidence
[12] Insofar as the applicant contends
that the commissioner’s decision to uphold the sanction of
dismissal was unreasonable
on account of there being no evidence of
any breach of trust, it is clear from the record that the
commissioner was alive to the
parties’ submissions in this
regard and in particular, to the first respondent’s view that
had Wilkinson and Ndema
and up to the conduct and given the assurance
that they would not act similarly in future, they would not have been
dismissed.
The commissioner, whose function it was to determine a
sanction that was fair in the circumstances, clearly took into
account that
an employee who commit serious misconduct, does not own
up to it and refuses to provide an undertaking not to commit such
misconduct
in future, acting breach of the trust relationship between
employer and employee. Again, it is not the function of this court to
determine whether it would have come to the same decision in relation
to sanction as that of the commissioner – it is sufficient
that
the sanction is reasonable in the circumstances. In the present
instance, in my view, there is no basis to call the commissioner’s
decision into question.
[13] Finally, in relation to costs, the
court has a broad discretion in terms of section 162 of the Act to
make orders for costs
on the basis of the requirements of the law and
fairness. This court traditionally does not make orders for costs
where the parties
are engaged in a collective bargaining relationship
and where an order for costs may have the effect of prejudicing that
relationship.
I intend to make no order as to costs.
For the above reasons, I make the
following order:
1. The application is dismissed.
ANDRÉ VAN NIEKERK
JUDGE OF THE LABOUR COURT
REPRESENTATION
For the applicant: Union official
For the third respondent: Adv.
Grobler, instructed by Kirchmanns Inc