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[2015] ZALCPE 12
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Melapi v Commission for Conciliation, Mediation and Arbitration and Others (P423/12) [2015] ZALCPE 12 (18 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Case
No: P 423/12
DATE:
18 FEBRUARY 2015
Not
Reportable
In
the matter between:
NKOSINDINI
MELAPI
...........................................................................................................
Applicant
And
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND
ARBITRATION
..........................................................................
First
Respondent
COMMISSIONER
NTOMBEKHAYA
SESANI
...................................................
Second
Respondent
LINDA
SECURITY (PTY)
LTD
................................................................................
Third
Respondent
Heard:
18 February 2014
Delivered:
18 February 2015
Summary:
The fairness of an arbitration award is decided on the totality of
the evidence before the commissioner and not only the
contents of the
arbitration award.
JUDGMENT
LALLIE
J
Introduction
[1]
In this application, the applicant seeks an order reviewing and
setting aside the arbitration award of the second respondent
(the
Commissioner) in which she found the applicant’s dismissal for
being under the influence of alcohol fair. It is opposed
by the third
respondent.
Factual
background
[2]
The applicant was employed by the third respondent as a security
guard. On 12 March 2012, while on duty at the Motherwell Law
Court,
he was suspected of sleeping on duty and to be under the influence of
alcohol. He was subjected to a disciplinary enquiry
and dismissed on
15 May 2012. He challenged the fairness of his dismissal at the first
respondent (the CCMA) where the second respondent
(the Commissioner)
issued the award which the applicant seeks this court to review and
set aside.
The award
[3]
In her brief reasons for her decision, the Commissioner noted that
the applicant denied having been under the influence of alcohol.
She
recorded that the third respondent’s evidence was to the effect
that the applicant was staggering, smelling of alcohol
and had
bloodshot eyes. She considered the results of the breathalyser test
the applicant was subjected to and concluded that he
had made himself
guilty of being under the influence of alcohol at work. She also
considered the submissions on the procedural
fairness of his
dismissal and found the applicant’s dismissal reasonable and
fair.
Grounds for
review
[4]
The applicant sought to rely on a number of grounds. He submitted
that the Commissioner committed gross errors and gross irregularities
by her failure to determine whether he was guilty of sleeping on duty
and the effect of the omission on the sanction. She failed
to
consider that the breathalyser results were not conclusive in respect
of the specific charge. She failed to arrive at any credibility
findings. She unreasonably failed to play an inquisitorial role with
a view to determine a number of issues the applicant considered
material which include the reliability of the instrument used to
conduct the breathalyser test and the appropriateness of the sanction
of dismissal. The applicant criticised the Commissioner’s
failure to ask the third respondent to produce a disciplinary code
substantiating reasons for issuing the sanction of dismissal. She
submitted that the Commissioner’s decision that his dismissal
was fair was unreasonable as the third respondent had failed to lead
evidence proving the breakdown of the trust relationship.
The
Commissioner’s gross irregularities that the applicant sought
to rely on included her failure to consider the applicant’s
personal circumstances, his clean disciplinary record and that no one
suffered any harm.
The test for
review
[5]
The test for review is settled, it is whether the decision reached by
the Commissioner is one that a reasonable decision-maker
could not
reach.
[1]
Interpreting the
Sidumo
judgment (
supra
)
the Labour Appeal Court in both in
Fidelity
Cash Management Services v Commission for Conciliation Mediation and
Arbitration and Others
[2]
and
Gold
Fields Mining SA (Pty) Ltd (Gold Kloof Mine) v CCMA and Others
[3]
expressed the impropriety of the piecemeal approach in dealing with
arbitration awards as the review court has to consider the
totality
of the evidence before the Commissioner when deciding its
reasonableness. In
Edcon
v Pillemer NO and Others,
[4]
the court interpreted the
Sidumo
judgment thus:
‘
[15]
Reduced to its bare essentials, the standard of review articulated by
the Constitutional Court is whether the award is one
that a
reasonable decision-maker could arrive at considering the material
placed before him.
[16]
It is therefore the reasonableness of the award that becomes a focal
point of the enquiry and in determining this one focuses
not only on
the conclusion arrived at but also on the material that was before
the Commissioner when making the award.’
[6]
Arguing that the arbitration award is susceptible to review the
applicant augmented his grounds for review and relied on the
relevant
authority on reviews. The gist of the third respondent’s
argument was that the Commissioner’s omission to
deal with the
charge of sleeping on duty was of no moment as, at the arbitration,
the parties persisted with the charge of the
applicant being drunk on
duty. The Commissioner’s decision that the applicant was drunk
on duty was not based on the breathalyser
results only but on the
evidence of two witnesses to the effect that the applicant had
insulting and aggressive behaviour, was
staggering, smelt of alcohol
and had bloodshot eyes. It was further argued that there was no duty
on the Commissioner to play an
inquisitorial role. The applicant’s
submission that the Commissioner failed to ask the third respondent
for a disciplinary
code governing the misconduct of being under the
influence of alcohol at work was not true as such evidence was led.
The third
respondent argued that in view of the nature of its
business, the Commissioner reasonably decided that the trust
relationship between
the applicant and itself had been destroyed. The
authority which the applicant sought to rely on which required the
third respondent
to have led direct evidence of the breakdown of the
trust relationship is distinguishable from the matter at hand.
[7]
The applicant adopted a piecemeal approach as he based his case on
everything he considered the Commissioner to have done wrong.
He
inexplicably sought to rely on the
Gold Fields
decision which
expressly precludes the review court from adopting the approach.
Nothing turns on some grounds the applicant sought
to rely on; by way
of example, the Commissioner’s failure to deal with the charge
of sleeping on duty. It is clear from the
record that the parties
concentrated on the charge of the applicant being under the influence
of alcohol on duty. The Commissioner
cannot be fairly criticised for
not stating the effect of not dealing with the charge of sleeping on
duty on the appropriateness
of the sanction of dismissal as she had
to use her sense of fairness in deciding the fairness of the
dismissal which includes the
appropriateness of the sanction of
dismissal. Contrary to the applicant’s submissions, the record
reflects that the third
respondent presented a document which
reflects that the misconduct of being under the influence of alcohol
on duty was dismissible
even to first offenders.
[8]
In order to determine whether the award is susceptible to review,
this court needs to consider whether the Commissioner dealt
with the
principal issue before her, considered the evidence presented on
behalf of the parties and come to a reasonable decision.
[5]
As the decision whether the award is reasonable is based on the
totality of the evidence before the Commissioner, the applicant’s
grounds for review to the effect that the Commissioner did not
consider the aspects of the arbitration which do not appear in the
award have no merit. The Commissioner considered the main dispute
before her. She applied her sense of fairness and concluded that
dismissal was reasonable and fair. She took a decision which could be
taken by a reasonable decision-maker; and I could find no
reason to
interfere with the award.
[9]
In the premises, the following order is made:
9.1
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: Advocate Gauss
Instructed
by: Larry Dave Attorneys
[1]
In
this regard see
Sidumo
and Others v Rustenburg Platinum Mines Ltd and Others
2008 (2) SA (CC).
[2]
(2008)
3 BLLR 197
(LAC) at paras 94-95.
[3]
[2007] ZALC 66
;
2014 1 BLLR 20
(LAC) at para 18.
[4]
(2010)
1 BLLR (SCA) at para 15 and 16.
[5]
See
Gold
Fields
(
supra
).