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[2015] ZALCPE 26
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Colven Associates George CC v Commission for Conciliation Mediation and Arbitration and Others (PR49/2012) [2015] ZALCPE 26 (22 April 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
reportable/ Reportable
Case
no: PR 49/2012
In
the matter between:
COLVEN
ASSOCIATES GEORGE
CC
.................................................................................
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
..........................................................................
First
Respondent
JONATHAN
R
NO
...................................................................................................
Second
Respondent
ROBOJI
NE
................................................................................................................
Third Respondent
Heard:
21 April 2015
Delivered:
22 April 2015
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the second respondent, to whom I shall refer as
‘the
commissioner’. In his award, the commissioner found that the
third respondent had been unfairly dismissed by the
applicant, and
awarded her compensation equivalent to eight months remuneration.
[2]
The facts giving rise to the proceedings under review are not
contentious and I do not intend to burden this judgment with the
repetition of the factual background. It suffices to say that the
third respondent was dismissed for failing, despite numerous
requests, to comply with an instruction to undergo a polygraph test
during September 2013. That instruction was given by the applicant
in
circumstances where it had received information from a client to the
effect that certain of its employees were engaged in bribery,
in the
form of selling jobs. It is not in dispute that it was a term of the
third respondent’s contract of employment that
she undergoes a
polygraph test when required by her employer to do so.
[3]
The applicant’s grounds for review relate primarily to the
conduct of the commissioner. In particular, it is contended
that he
failed to appreciate (and hence properly consider) that the reason
for the third respondent’s dismissal was her failure
to carry
out a reasonable and lawful instruction, that he irrationally
concluded that the applicant’s witness Esterhuizen
was not
credible, that he failed to have regard to other arbitration awards
that supported the applicant’s case and that
he acted
irrationally in awarding the quantum of compensation that he did.
[4]
I am not persuaded that there is any merit in the last of these
grounds – although the third respondent during the course
of
opening statements requested the equivalent of three months
compensation in the event of the commissioner finding in her favour,
by the time that the proceedings concluded more than a year had
elapsed. The commissioner clearly took this into account, as he
was
entitled if not obliged to do, in deciding on an appropriate amount
of compensation on the basis of the period for which she
had been
unemployed.
[5]
I am persuaded though that the first three grounds for review have
merit. Despite the commissioner recording that the third
respondent’s
dismissal was a consequence of her refusal to comply with a
reasonable and lawful instruction, it appears from
the face of the
award that he lost sight of the true reason for dismissal and
concerned himself instead with the question of whether
or not the
third respondent was guilty of the misconduct being investigated by
means of the polygraph examination (i.e. the allegation
of bribery).
This much is apparent at number of points both in the record and in
the award. The commissioner’s reasoning
is particularly
apparent from paragraph 23 of the award, which reads as follows:
I
however accept that the applicant has breached the terms and
conditions of employment by refusing to subject herself to an agreed
polygraph test but the question is whether the misconduct is
dismissible. It is generally accepted the polygraph test is a tool
to
investigations but is not conclusive evidence without corroborative
evidence of a person’s guilt due to the nature of
a polygraph
test,
[6]
Further, paragraphs 24 and 25 read follows:
24.
But, despite the application of the contract, it is similarly my view
that her refusal i.e. the mere refusal to undergo a polygraph
test,
while it might be a form of breach of contract, or possible
insubordination, similarly does not in itself justify the conclusion
that such a person can no longer be trusted. This, in my view, is
unfair.
25.
The respondent did not hold an investigation. It chose, rather, to
limit its enquiry to the polygraph and the failure to undergo
the
test to conclude that the applicant cannot be trusted. This, in my
view, renders the dismissal of the applicant substantively
unfair.
[7]
These conclusions indicate that the commissioner misconceived the
nature of the enquiry before him. In terms of the Code of
Good
Practice: Dismissal, the commissioner was required to establish
whether the third respondent had contravened any workplace
rule or
standard and if so, the reasonableness of the rule, the employee’s
awareness of the rule any breach of the rule and
whether dismissal
was an appropriate sanction. The terms of the award fail to
demonstrate that the commissioner carried out the
enquiry in these
terms – his conclusions are indicative of an enquiry of an
entirely different nature, more particularly
the nature of the
polygraph test and the evidentiary value of its results.
[8]
I did not understand the third respondent’s representative to
contest these submissions, nor did she dispute that the
credibility
finding made by the commissioner in respect of the applicant’s
witness Esterhuizen was unsustainable. The commissioner
had concluded
that Esterhuizen’s evidence that the informant who sent him an
email which implicated certain of the applicant’s
employees in
bribery did not supply him with the names of the employees concerned
was not credible, despite the fact that this
proposition was never
put to him during the course of his evidence and despite his own
evidence to the contrary.
[9]
The primary submission made by the third respondent’s
representative during the course of argument was that the
commissioner’s
decision was reasonable and therefore
sustainable in relation to the question of sanction. By this I
understood her to mean that
despite the commissioner’s
evaluation of the evidence and the shortcomings that form the subject
of the applicant’s
grounds for review, the commissioner’s
decision that dismissal was not an appropriate sanction for the
misconduct committed
by the third respondent falls within the band of
decisions to which reasonable decision-makers could come on the
available material.
[10]
In my view, there is no merit in this submission. First, the award
under review discloses no consideration of any of the elements
identified by the Constitutional Court in the
Sidumo
judgment
as relevant to this enquiry (see
Sidumo & another v Rustenburg
Platinum Mines Ltd & others
[2007] 12 BLLR 1097
(CC). That
judgment requires a commissioner to come to a decision that is fair
in all the circumstances, having regard to the interests
of the
employee and of the employer. There is simply no basis articulated in
the award under review for the finding to the effect
that the
applicant’s dismissal was substantively unfair, but for his
finding that the applicant failed to conduct an investigation
(which
is not correct) and chose to limit its enquiry to the polygraph and
the failure to undergo the test to conclude that the
applicant cannot
be trusted (which is precisely the case disclosed by the evidence),
or why dismissal was too harsh a penalty for
misconduct that the
commissioner had found to have been committed.
[11]
The basis on which this court is entitled to interfere with an
arbitrator’s decision in proceedings such as the present
is
fairly well established. The
Sidumo
judgment (
supra
)
obliges this court intervene if and only if the decision made by a
Commissioner is so unreasonable that no reasonable decision-maker
could come to that decision. That decision and those that followed it
(in particular,
Herholdt v Nedbank
[2013] 11 BLLR 1074
(SCA)
and
Goldfields Mining South Africa v CCMA & others
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC)) do not discount the conduct of a commissioner from
the relevant enquiry. The courts have held that in addition to a
failure
by a commissioner to apply his or her mind to issues which
are material to the determination of the case, an applicant must
demonstrate
that the commissioner misconceived the true nature of the
enquiry, or that his or her conduct resulted in an unreasonable
outcome.
The LAC has held further that whether or not a decision is
unreasonable in its result is an exercise that is necessarily
dependent
on variable considerations and circumstantial factors. In
other words, flaws in the reasoning of the commissioner, evidence of
a failure to apply the mind, reliance by the commissioner on
irrelevant considerations or the ignoring of material evidence must
be assessed with the purpose of establishing whether the arbitrator
has undertaken a wrong enquiry, undertaken the enquiry in the
wrong
manner or arrived at an unreasonable result. These lapses and
irregularities ought to be of such an order as to result in
a
misconceived enquiry or a decision to which no reasonable
decision-maker could come on the available material. (see
Head of
the Dept of Education v Mofokeng & others
[2015] 1 BLLR 50
(LAC)).
[12]
In the present instance, as I have indicated, the commissioner
undertook the enquiry to be conducted by him in the wrong manner.
Put
another way, he asked the wrong question. The question before him was
whether or not the third respondent unreasonably refused
to comply
with a reasonable instruction, and whether dismissal was an
appropriate sanction for her failure to do so. Instead, he
conducted
an enquiry into whether the employee was guilty of the charge being
investigated, the failure to undergo a polygraph
test in that
context, and its effect on the third respondent’s employment
more generally. In my view, on the available
authority, the
award stands to be reviewed and set aside. Even if I am wrong in
coming to this conclusion, I am satisfied that
the commissioner’s
conduct, particularly in relation to his unsustainable findings of
credibility and therefore his dismissal
of relevant evidence and his
failure to have regard to the relevant authorities submitted to him
(all of which indicate a conclusion
contrary to the decision to which
the commissioner came), had the result that the conclusion to which
he came was unreasonable.
[13]
The applicant’s representative submitted that should the court
uphold the review, the court ought to substitute its decision
for
that of the commissioner. I am in agreement with this submission,
given the lapse of time since the award was issued and the
completeness of the record. It is not disputed that the applicant had
some six years’ service at the time of her dismissal.
It is not
in dispute that it was an express term of her employment that she
undergoes a polygraph test when so required. It is
also not in
dispute that the third respondent refused to undergo a polygraph
test, that she was warned of the consequences of a
continued refusal
and that, to the point of the conclusion of the arbitration
proceedings, she failed to proffer any rational explanation
for her
refusal. Finally, the penalty prescribed by the applicant’s
disciplinary code was that of dismissal – there
could have been
no doubt in the third respondent’s mind that her continued
refusal to comply with a repeatedly issued instruction
would have
that consequence.
[14]
The applicant’s representative (charitably) did not pursue an
order for costs.
I
make the following order:
1.
The arbitration award issued by the second
respondent under case number ECPE 4314/12 dated 7 April 2013 is
reviewed and set aside.
2.
The award is substituted by the following:
“
The
applicant’s dismissal was substantively and procedurally fair.”
3.
There is no order as to costs.
Andre
van Niekerk
Judge
REPRESENTATION
For
the applicant: Mr. C Kirchman, Kirchman’s Attorneys
For
the third respondent: Ms E van Staden, Legal Aid SA