About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Port Elizabeth Labour Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Port Elizabeth Labour Court, Port Elizabeth
>>
2015
>>
[2015] ZALCPE 5
|
|
Bashe v Commission for Conciliation, Mediation and Arbitration and Others (P420/12) [2015] ZALCPE 5 (27 January 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Case
No: P 420/12
DATE:
27 JANUARY 2015
Not
Reportable
In
the matter between:
SIYABULELA
BASHE
..........................................................................
Applicant
And
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
......................................
First
Respondent
COMMISSIONER
SIYABONGA COKILE
......................
Second
Respondent
OMEGA
RISK SOLUTION (PTY) LTD
.............................
Third
Respondent
Heard:
17 October 2013
Delivered:
27 January 2015
Summary:
The fairness of a dismissal is determined by a CCMA commissioner. The
Labour Court will not review a commissioner’s
decision on the
fairness of a dismissal if it falls within bounds of reasonableness.
JUDGMENT
LALLIE
J
Introduction
[1]
In this application, the applicant seeks an order reviewing and
setting aside an arbitration award of the second respondent
(“the
commissioner”). The application is opposed by the third
respondent.
Factual
background
[2]
The applicant was employed by the third respondent as a security
guard. On 8 February 2012, while posted at Dolphin’s
Leap, one
of the sites the third respondent provided services at, he fought
with Mr Mase (“Mase”), his fellow employee.
He was
charged with assault for physically assaulting Mase during working
hours alternatively fighting with Mase. He was further
charged with
bringing the third respondent’s name into disrepute by
committing the misconduct involving Mase which was detrimental
to the
interests of the third respondent. He was found guilty of fighting
and committing action detrimental to the interests of
the third
respondent which brought the third respondent’s name into
disrepute and dismissed. Aggrieved by his dismissal he
referred an
unfair dismissal dispute to the first respondent. It was arbitrated
by the commissioner who issued an award in which
he found the
applicant’s dismissal substantively fair. In this application
the applicant seeks an order reviewing and setting
the award aside.
The award
[3]
Giving reasons for his decision, the arbitrator found a number of
facts common cause. They included the fight between the applicant
and
Mase on 8 February 2013, in which the former stabbed the latter with
a screw driver. Mase suffered stab wounds to the head
and shoulder.
The applicant was hit by Mase once and he sustained an injury on his
lower lip. Although Mase had a knife in his
possession, he did not
stab the applicant.
[4]
The commissioner was impressed by Mase and Ms Schnetler (“Schnetler”)
as witnesses. He found that Schnetler’s
evidence was
consistent, she did not try to support the third respondent’s
case with assertions she could not back up and
found Mase to be a
credible and reliable witness who answered questions clearly and had
a good recollection of the events of 8
February 2012. He made the
opposite findings about the applicant who got upset, evasive and
argumentative when asked to explain
improbabilities in his version.
The commissioner rejected the applicant’s version that he was
provoked by Mase as it was
not supported by evidence. He found his
version contradictory and his defence of self-defence improbable. He
accepted Schnetler’s
unchallenged evidence that the fight by
the applicant and Mase in full uniform at a public place early in the
morning when people
were going to work could leave a damaging
impression of the third respondent.
[5]
The commissioner considered item 7 of schedule 8 to the LRA, the code
of good practice for dismissal, the third respondent’s
disciplinary code as well as the totality of the circumstances of the
case before him including the appropriateness of the sanction
of
dismissal and concluded that the applicant’s dismissal was
substantively fair.
Grounds for
review
[6]
The applicant submitted that the commissioner committed a gross
irregularity in that he ignored aspects of the evidence which
had an
impact on the credibility findings. Those aspects include Schnetler’s
absence during the fight. She could therefore
not testify as to who
started fight which she did not even report to the police. The
failure, to attach due weight on Mase’s
evidence that he
carried a knife at the workplace. The inherent probabilities did not
favour Mase’s version. When Mase’s
version is properly
weighed against the applicants’ it cannot be accepted as
probable. Mase gave two different reasons for
refusing to report the
fight to the police. The applicant submitted that Mase resigned and
looked for alternative employment because
his hands were not clean.
The commissioner failed to play an inquisitorial role and establish
reasons for the failure to call the
applicant’s manager as a
witness as he was aware of the sms which trigged the fight.
[7]
A further attack on the award is mounted on the commissioner’s
finding that the applicant was not a credible witness.
Probabilities
are that he was upset when giving evidence because he lost his job as
a result of the fight. The commissioner was
criticized by the
applicant for adopting an armchair critic approach to the fight which
led him to reject the applicant’s
defence of self-defence, the
history of bad blood between the applicant and Mase and that Mase was
in possession of a knife. As
the versions before the commissioner
were equally probable he should have found in the applicant’s
favour. The applicant
also submitted that the commissioner committed
a gross irregularity by finding that he was guilty of the second
charge in the absence
of direct evidence. In reaching the conclusion
that the sanction of dismissal was appropriate, the commissioner
failed to consider
that senior management was aware of the bad
working relationship between Mase and the applicant and could have
created a new rule
preventing the caring of dangerous weapons at the
workplace. He failed to apply his mind to alternative sanction and to
consider
whether he was suspended and how the suspension affected the
trust relationship. The third respondent’s failure to suspend
the applicant reflected that the trust relationship was not damaged
beyond repair. The applicant submitted that the commissioner
rendered
an unreasonable award as a result of the gross irregularities he
committed which deprived him of the right to a fair hearing
in that
he was not afforded an opportunity to have his evidence fairly and
properly assessed.
The review
[8]
The test for review is trite. It is whether the commissioner reached
a decision a reasonable decision-maker could not reach
on the
evidence before the commissioner
[1]
.
In conducting arbitrations commissioners have to exercise their
powers in section 138 of the LRA. The approach to be adopted by
the
reviewing court is expressed thus in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
[2]
:
‘
[18]
In a review conducted under section 145 (2) (a)(c)(ii) of the LRA,
the reviewing court is not required to take into account
every factor
individually, consider how the arbitrator treated and dealt with each
of those factors and then determine whether
a failure by the
arbitrator to deal with one or some of the factors amounts to
process-related irregularity sufficient to set aside
the award. This
piecemeal approach of dealing with the arbitrator’s award is
improper as the reviewing court must necessarily
consider the
totality of the evidence and then decide whether the decision made by
the arbitrator is one that a reasonable decision-maker
could make.
[19]
To do it differently or to evaluate every factor individually and
independently is to defeat the very requirement set out in
section
138 of the LRA which requires the arbitrator to deal with the
substantial merits of the dispute between the parties with
the
minimum of legal formalities and do so expeditiously and fairly. This
is also confirmed in the decision of
CUSA v Tao Ying Metal
Industries’.
[9]
The applicant’s grounds for review are based on the piece-meal
approach. A number of the grounds the applicant seeks to
rely on have
no merit and, are highlighted by the third respondent in its
answering affidavit and heads of argument. It was argued
on behalf of
the third respondent, correctly so, that it is not apparent that the
commissioner relied on any evidence by Schnetler
in finding on the
probabilities that he favoured Mase’s version. The applicant
sought to rely on the discrepancy on the evidence
of Mase and
Schnetler on why Mase elected not to lay criminal charges against the
applicant for the assault. He suggests how the
commissioner should
have handled the issue. The manner in which the commissioner dealt
with the issue is reasonable. The attack
on the award on the basis
that he was required to establish why Mase did not wait for the
outcome of the disciplinary proceedings
before tendering his
resignation has nothing to do with the test for review. It is an
alternative view which leaves the manner
in which the commissioner
handled the issue unassailed.
[10]
Amongst the grounds which do not hold water, is the submission that
the commissioner committed a gross irregularity and unreasonably
concluded that the applicant lacked credibility. He further submitted
that probabilities were that the applicant was upset because
he lost
his job due to the incident. The commissioner stated that the
applicant was upset. The applicant did not disclose the reasons
for
being upset, they therefore cannot be speculated at this stage.
[11]
The commissioner was required to consider the principal issue before
him, evaluate the facts and come to a reasonable conclusion.
See
Gold
filed supra
[3]
.
An assessment of the totality of the evidence reflects that he dealt
with the principal issue before him which was the substantive
fairness of the applicant’s dismissal for the acts of
misconduct which led to his dismissal. He was faced with two mutually
exclusive versions. He dealt with them and gave reasons for
preferring the third respondent’s version. He considered the
credibility of the witnesses before him and forwarded reasons for his
credibility finding. This court does not interfere with credibility
findings easily. In
Network
field Marketing (Pty) Ltd v Mngezana NO and Others
the Court relied on the following
dictum
in
Allie
v Foodworld Stores Distribution Centre (Pty) Ltd and Others
[4]
where the court held thus:
‘
In
dealing with demeanour and credibility in relation to the
magistrate’s findings Van Zyl J said the following:
‘
Of
course, the judicial officer, who has sight of the witness and is
able to assess their evidence from nearby, is the best person
to
gauge their demeanour. The record of such evidence, however, speaks
for itself. If a witness is mendacious, contradictory or
evasive,
this will appear from the record. And if a judicial officer has
justified criticism of a witness or of his or her evidence,
the
justification for such criticism will normally also appear from the
record. Even more so will this be the case when a credibility
finding
is made against a particular witness. Although a Court of
appeal is reluctant to interfere with credibility findings
made by
the court of first instance, it is not obliged to accept such
findings if they should not appear to be justified.’
[12]
When the difference between appeals and reviews is taken into
account, the review court should even be more reluctant. I could
find
no reason for not accepting the commissioner’s credibility
findings. They are based on the evidence before him and reasonable.
[13]
The applicant sought to rely on the weight the commissioner should
have attached to evidence. When a commissioner makes errors
in
dealing with and attaching weight to evidence, his or her conduct
does not render his or he award reviewable. See
Herholdt
vs Nedbank Ltd and Others
[5]
.
[14]
There is merit in the applicant’s submission that no direct
evidence was led to prove that he brought the third respondent’s
name into disrepute by fighting in public wearing its uniform.
The commissioner, however, found the misconduct of fighting
serious
enough to justify dismissal. The commissioner expressed that view
thus:
‘
Having
regard to the importance of the rules that were breached by the
applicant, the seriousness of the act of misconduct committed
by the
applicant, the fact that assaulting or being violent towards a
co-employee and using unnecessary violence against any person
in the
course of duty or in uniform according to the respondent‘s
disciplinary code is dismissible offence, the respondent’s
evidence that the applicant has destroyed the trust relationship, the
applicant’s reasons for challenging his dismissal and
approaching the CCMA with unclean hands. I am of the view that the
sanction of dismissal imposed by the respondent was appropriate
in
the circumstances. I accordingly find on a balance of probabilities
that, the applicant’s dismissal was substantively
fair.’
[15]
The applicant failed to prove that the award falls outside the bounds
of reasonableness and his application cannot succeed.
[16]
In the premises, the following order is made:
16.1
The application for review is dismissed.
Lallie J
Judge of the
Labour Court of South Africa
APPEARANCE
For
the Applicant: Mrs Van Staden of the Justice Centre
For
the Third Respondent: Mr Unwin of Chris Unwin Attorneys
[1]
Sidumo
and Others vs Rustenburg platinum Mines Ltd and Others
2008 (2) SA (CC)
[2]
[2014] 1 BLLR 20 (LAC)
[3]
Para
16
[4]
2004 (2) SA 433
(SCA) at para 38.
[5]
[2013] 11 BLLR 1074
(SCA) para 25