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[2015] ZALCPE 59
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Plaatjies v Commission for Conciliation, Mediation and Arbitration and Others (PR41/13) [2015] ZALCPE 59 (13 November 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case
No: PR 41/13
In
the matter between
CYRIL
ARTHUR PLAATJIES
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
A NYONDO N.O
Second Respondent
XHOBANI
SECURITY
SERVICES
Third Respondent
Heard:
05 November 2015
Delivered:
13 November 2015
Summary:
The commissioner’s error of basing his decision on the
substantive
fairness of a dismissal on a part and not the whole of
the termination clause of a contract of employment rendered his
arbitration
award unreasonable.
JUDGMENT
LALLIE,
J
Introduction
[1]
This is an application to review and set aside an arbitration award
of the second respondent (“the Commissioner”)
in which he
found the applicant’s dismissal procedurally and substantively
fair. It is opposed by the third respondent. The
applicant filed the
record of arbitration proceedings late and applied for condonation.
The main reason for the delay is that the
applicant relied on an
insurance policy for funding his litigation. The procedure for
appointing his legal representative caused
in the delay. The
explanation is reasonable and the application reflects the
applicant’s intention and efforts to pursue
the review
application. The applicant therefore established grounds for the
condonation of the delay.
Material
facts
[2]
Most material facts in this matter are common cause. The third
respondent conducts business in the contract security services
industry. The industry is regulated by the Private Security Services
Regulatory Authority (the PSIRA) in terms of the Private Security
Industry Regulation Act 56 of 2001 (the PSIRA Act). The third
respondent employed the applicant as a contact manager. On
appointment,
the applicant fulfilled the requirements for his
position in terms of the PSIRA regulations in that he was a
registered grade A
security officer. Clause 19 (c) of the applicant’s
contract of employment granted the third respondent power to
terminate
the contract of employment if the applicant was convicted
of a criminal offence which, in the reasonable opinion of the third
respondent,
affected his position as an employee. There was a
housebreaking at the applicant’s house in which his private
firearm was
stolen. A criminal charge relating to the negligent loss
of the firearm was preferred against him. He pleaded guilty and on 12
November 2012, was found guilty based on his plea and sentenced to 12
months imprisonment which was fully suspended for five years.
[3]
On 9 January 2013, the applicant was suspended from duty. An enquiry
into his capacity to perform his job functions owing to
the
impossibility to perform duties as a Security Contact Manager because
the conviction of a criminal offence placed him in breach
of clause
19 of his contract of employment as well as the PSIRA regulations. He
was dismissed on 5 February 2013 and challenged
the fairness of his
dismissal at the first respondent where the commissioner issued the
award which forms the subject matter of
this application.
The
award
[4]
The commissioner found that the third respondent had established that
in terms of clause 19 (c) of the contract of employment,
a conviction
such as the one that the applicant had entitled it to terminate his
services. He added that clause 19 (c) coupled
with the PSIRA
regulations made it clear that the respondent could not continue with
the employment of the applicant. He concluded
that the applicant’s
dismissal was fair because the conviction brought about an
impossibility of performance on the part
of the applicant. The third
respondent could therefore not continue to employ the applicant.
Grounds
for review
[5]
The applicant’s main grounds for review are that the
commissioner committed gross irregularities in the conduct of the
arbitration by disregarding material evidence, making errors of both
law and fact and reaching an unreasonable decision. The decision
that
the applicant’s dismissal was procedurally unfair was attacked
on the basis that he was denied external representation
when by
virtue of his seniority he could not be represented effectively by
his fellow employees who were his juniors. The applicant
submitted
that the commissioner erred in not finding that the respondent was
estopped from subjecting him to an enquiry and dismissing
him based
on the incident involving his lost firearm because one of its senior
managers was aware of the incident and elected either
to condone it
or not take action against him within reasonable time. The
commissioner based his decision on the substantive fairness
of his
dismissal on his incorrect interpretation of both his contract of
employment and PSIRA regulations. When he took a decision
to consider
evidence of events which took place and facts which came to light
after his dismissal, he disregarded all those which
favoured the
applicant, thus committing a gross irregularity.
[6]
The third respondent opposed the application mainly on the basis that
the commissioner took into account all the material evidence
placed
before him and reached a reasonable decision. It submitted that as
the applicant was found guilty of a criminal offence,
he was in
breach of his contract of employment and it became impossible for him
to perform his duties. It further denied that the
dismissal was
procedurally unfair as the incapacity inquiry was held in terms of
its policies. Any delay in taking action against
the applicant was
reasonable, did not prejudice him and did not constitute waiver of
the right to invoke clause 19 (c) of the contract
of employment.
[7]
In determining whether to review and set aside the award, this court
needs to consider, based on the totality of the evidence
before the
commissioner, whether the arbitration award constitutes a decision
which a reasonable decision-maker could not reach.
In this regard see
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
.
In
Herholdt
v Nedbank Ltd
[2]
it was held that an arbitration award not based on the evidence
before the commissioner is unreasonable.
Analysis
[8]
A consideration of the totality of the evidence before the
commissioner reflects that he based his decision on the substantive
fairness of the applicant’s dismissal on clause 19 (c) of his
contract of employment. Part of the principal issue before
the
commissioner was whether the third respondent acted in terms of
clause 19 (c) of the contract of employment in dismissing the
applicant. His decision therefore had to be based on a correct
reading of clause 19 (c) of the contract. He, however, incorrectly
found that a conviction such as the one the applicant had entitled
the third respondent to terminate his services. In reaching
the
finding, the commissioner failed to take into account a material
portion of clause 19 (c) which provides that the contract
will be
terminated if in the reasonable opinion of the employer the
conviction of a criminal offence had an effect on the applicant’s
position as an employee. The commissioner’s interpretation of
clause 19 (c) therefore, did not take into account whether
in the
reasonable opinion of the third respondent the conviction warranted
the termination of the contract. His omission
had a direct
effect on his decision.
[9]
The commissioner was enjoined by section 138 (1) of the Labour
Relations Act to 66 of 1995 as amended (“the LRA”)
to
conduct the arbitration fairly. The applicant was dismissed on 5
February 2013. His status as a grade A security officer was
withdrawn
by the PSIRA on 14 March 2013. In reaching his decision that on
dismissal it had become impossible for the applicant
to perform his
duties he took into account the third respondent’s evidence
that the applicant’s status had been withdrawn
in terms of the
PSIRA regulations although the withdrawal took place after his
dismissal. He failed to take into account evidence
on behalf of the
applicant that after his dismissal he appealed against the withdrawal
of his status in terms of the same regulations.
Fairness as envisaged
in section 138 (1) of the LRA required the commissioner to have taken
into account evidence of both parties
on events which happened after
the dismissal. The commissioner’s conclusion that the
applicant’s deregistration by
the PSIRA served as a total and
permanent incapacity was premature because evidence before him was
that his appeal against the
withdrawal was still pending. The
commissioner’s reliance on
Mamabolo
and Protea Coin Group (Pty) Ltd
[3]
,
an award based on totally different facts was unreasonable.
[10]
The commissioner’s error on the content of clause 19 (c) of the
applicant’s contract of employment and the application
of the
PSIRA regulations rendered his decision unreasonable.
[11]
In the premises the following order is made:
11.1 The late
filling of the record is condoned.
11.2 The
arbitration award issued by the second respondent under case number
ECPE 648-13 and dated 23 May 2013 is reviewed
and set aside.
11.3
The matter is remitted to the first respondent to be arbitrated
de
novo
by a commissioner other than the second respondent.
____________________________
Lallie J
Judge of the Labour Court
of South Africa
APPEARANCES
For the
Applicant:
Mr Van Zyl of Francois Roux Attorneys
For the Third
Respondent: Mr Posthuma of Snyman Attorneys
[1]
2008 (2) SA (CC)
[2]
[
2013]
11 BLLR 1074
(SCA)
[3]
(2011)
32 ILJ 2583 (CCMA)