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[2015] ZALCD 22
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Hulamin Limited v Metal And Engineering Industries Bargaining Council and Others (D401/2011) [2015] ZALCD 22 (18 February 2015)
REPUBLIC OF SOUTH AFRICA
Not Reportable
The Labour Court of South Africa, Durban
Judgment
Case No: D401/2011
DATE: 18 FEBRUARY 2015
In the matter between:
Hulamin
Limited
.......................................................................................................................
Applicant
And
Metal And Engineering Industries
Bargaining
Council
.......................................................................................................
First
Respondent
COMMISSIONER R MAHARAJ N.
O
.................................................................
Second
Respondent
ARATH
HARRIBARAN
............................................................................................
Third
Respondent
Heard: 27 August 2013
Delivered: 18 February 2014
Summary: Application to review arbitration award. Application
dismissed.
Judgment
GUSH J
[1]
The applicant in this matter is a company
that conducts business as a manufacturer of aluminium products and
aluminium by-products.
The third respondent was employed by the
applicant as a section leader in the finishing area of its coil
coating line operation.
[2]
It was reported to the applicant that
during the nightshift of 16/17 October 2009, the third respondent had
exposed his penis to
employees of the applicant. The third respondent
had allegedly walked around the area where he was employed and at
various times
had unzipped his fly and allowed his penis to protrude
from his trousers. This resulted in the applicant investigating the
incident
which investigation included an examination of the company
computer supplied to the third respondent for the purposes of
performing
his duties. This investigation revealed that stored on
this computer and accessible by using the third respondent’s
password
was a one-hour 58 minutes pornagraphic video depicting
various explicit sexual acts.
[3]
Arising from this investigation and the
report, the applicant charged the third respondent with the following
misconduct:
1.
It
is alleged that on or about 16/17 October 2009 and was whilst
employed by the company at Finishing Area of its Coil Coating Line
operation as a section leader, you misconduct of yourself by:
(a)
exposing
your private parts to fellow employees working on the line with new
and/or
(b
)
engaging
in inappropriate conduct and sexual harassment in that you sought to
expose your private parts to fellow employees working
on the Coil
Coating Line with you,
2.
it
is further alleged that you have violated company information
technology (IT) and Internet policy and that during working hours
whilst employed in the company as a shift leader, who had been
receiving, storing, watching and/or downloading and/or disseminating
prohibited pornographic material to other employees in the company,
using a company computer which was supplied to you for the
performance of official business.
As
a result of your conduct, you have reached the relationship of trust
and good faith existing between yourself and the company.
[4]
At the conclusion of the disciplinary
enquiry, the applicant found the third respondent to be guilty of the
misconduct with which
he was charged and terminated his employment.
[5]
The third respondent dissatisfied with his
dismissal referred a dispute to the first respondent who in turn
appointed the second
respondent to arbitrate the dispute. The
arbitration apparently took place on 14 April 2010, 1 June 2010, 3
August 2010, 13 October
2010 26 January 2011 and 24 February 2011.
[6]
The record filed by the applicant comprises
a number of volumes including three volumes relating to transcript of
the evidence led
at the arbitration on 14 April 2010, 1 June 2010 and
26 January 2011. These volumes are volumes 1, 2 and 4 respectively. A
further
three volumes were filed under the heading "Commissioners
Notes" numbered volumes 3, 4, 5a and one volume headed
"Commissioner
Summary".
[7]
It appears from the record that the parties
prior to the commencing with the leading of the evidence presented
opening statements
to the second respondent. There is unfortunately
no record of these opening statements other than that recorded in
volume 3 of
the Commissioners notes.
[8]
From the second respondent’s award,
it is apparent that the arbitration was adjourned to 3 August 2010 at
which hearing, further
witnesses gave evidence on behalf of the
applicant and, in particular, the applicant’s witness who dealt
with the evidence
regarding the second charge of misconduct. The
record of the proceedings of 3 August is contained in volume 4 of the
"Commissioners
Notes". It appears as if the arbitration was
adjourned to 13 October 2010 when the last witness for the applicant
gave evidence.
This evidence is recorded in volume 5a of the
“Commissioners Notes”.
[9]
The third respondent and his two witnesses
gave evidence at the arbitration on 26 January 2011 and this evidence
is recorded in
volume 4 of the transcript of the evidence. It appears
that the matter was adjourned to 24 February for closing arguments.
There
is no record of what transpired on 24 February 2011. The second
respondent issued the award on 31 March 2011.
[10]
The second respondent in the award
concluded that the applicant had not discharged the
onus
of establishing that the third respondent was guilty of either charge
of misconduct and ordered that the applicant reinstates the
third
respondent.
[11]
The applicant sets out its grounds of
review in its founding affidavit as follows:
‘
The
applicant is unhappy with the award handed down by the second
respondent and is respectfully of the view that the award is
reviewable because the second respondent inter-alia
Conducted
yourself in a manner that constitutes a gross irregularity; and/or
Misconceived
of and exceeded her powers and functions as contemplated by the
constitution of the bargaining Council, its dispute
resolution
procedures, the Labour Relations Act and the law; and/or
Acted
unreasonable in the execution of the duties and responsibilities as
an arbitrator; and/or
Failed
to properly apply her mind to the established facts and evidence
placed before her to the extent that there is no rational
nexus
between a finding, the fact that were established during the
arbitration process and the conclusion that she ultimately derived
in
regard to this matter; and/or
Arrived
at the finding that no reasonable decision maker could have reached
having regard to the facts and evidence placed before
her.’
(sic)
[1]
[12]
Although the applicant expanded on its
grounds of review under the headings: “grossly irregular
conduct”; “exceeded
her powers” and “unreasonable
finding”, the essence of the applicant’s challenge to the
arbitration award
is that the second respondent’s finding that
the applicant had not established on the balance of probabilities
that the third
respondent was guilty of sexual harassment or of
contravening the applicant’s IT policy was not supported by the
evidence
adduced at the arbitration.
[13]
There can be no doubt that the misconduct
with which the third respondent was charged was serious misconduct
and in the event of
the third respondent being found guilty of either
charge, dismissal was the appropriate sanction.
[14]
The conclusion drawn by the second
respondent that the applicant had failed to prove on a balance of
probabilities that the third
respondent was guilty of misconduct is
based on the second respondent’s detailed summary and
analysis of the evidence
of the witnesses called on behalf of the
applicant, the evidence of the third respondent and his witnesses. In
the analysis the
second respondent made a number of credibility
findings regarding the evidence particularly with regard to the
charge of sexual
harassment. With regard to the second charge of
misconduct namely the breach of the IT policy, the second respondent
in her analysis
concluded that the applicant had not established that
the third respondent was guilty of the specific misconduct with which
he
was charged.
[15]
In the light of this and on a careful
consideration of the applicant’s grounds of review and
complaints regarding the second
respondent’s conclusions based
on her analysis of the evidence, the challenge to the second
respondents award is more akin
to an appeal than a review. This is
the situation with regard to the both counts of misconduct.
[16]
In essence, the applicant’s grounds
of review are simply that the second respondent should have but did
not accept the evidence
of its witnesses and should have but did not
reject the evidence of the third respondent’s witnesses.
[17]
The test on review is set out in the matter
of
Sidumo and
another v Rustenburg Platinum Mines Ltd and Others
[2]
namely “whether
the award was one that a reasonable decision-maker could not reach”.
The process in determining whether
the award is reviewable is
described by the Supreme Court of Appeal in the matter of
Nedbank
and Herholdt
:
[3]
‘
That
test involves the reviewing court examining the merits of the case
'in the round' by determining whether, in the light of the
issue
raised by the dispute under arbitration, the outcome reached by the
arbitrator was not one that could reasonably be reached
on the
evidence and other material properly before the arbitrator.
On
this approach the reasoning of the arbitrator assumes less importance
than it does on the SCA test, where a flaw in the reasons
results in
the award being set aside. The reasons are still considered in order
to see how the arbitrator reached the result. That
assists the court
to determine whether that result can reasonably be reached by that
route. If not, however, the court must still
consider whether, apart
from those reasons, the result is one a reasonable decision-maker
could reach in the light of the issues
and the evidence.
…
And
while the evidence must necessarily be scrutinised to determine
whether the outcome was reasonable, the reviewing court must
always
be alert to remind itself that it must avoid judicial overzealousness
in setting aside administrative decisions that do
not coincide with
the judge's own opinions'. The LAC subsequently stressed that the
test 'is a stringent [one] that will ensure
that ... awards are not
lightly interfered with' and that its emphasis is on the result of
the case rather than the reasons for
arriving at that result. The
Sidumo
test
will, however, justify setting aside an award on review if the
decision is
‘
entirely
disconnected with the evidence' or is 'unsupported by any evidence'
and involves speculation by the commissioner.’
[4]
[Footnote omitted]
[18]
In this matter, in applying this test it is
clear that whilst the misconduct that the third respondent was
accused with was serious
and that the over robust cross-examination
of the applicant’s witnesses by the third respondent’s
representative was
disturbing it cannot be said that the decision is
"entirely disconnected with the evidence or unsupported by any
evidence
and involves speculation by the Commissioner".
[19]
In this matter, it is not the applicant’s
complaint that the second respondent did not take into account the
evidence. The
applicant argued that the award was reviewable based on
the second respondent’s analysis of that evidence and her
finding,
based on the fact that they were two contradictory versions,
that the applicant had not established on a balance of probabilities
that the third respondent was guilty of misconduct.
[1]
Whilst the applicant might disagree with
the second respondent’s conclusions and findings of credibility
these are aspects
that are relevant in an appeal as opposed to a
review It is incumbent upon the applicant to establish that the award
is reviewable taking into account what was held in
Edcon Ltd v Pillemer NO and
Others
[5]
as follows
:
‘
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’.
[6]
[20]
I am not persuaded that the applicant has
established this.
[21]
It might well be argued that, in the
circumstances of this matter, the probabilities that the allegations
of misconduct were completely
groundless are unlikely and that the
misconduct was particularly egregious. This, however is not
sufficient to review and set aside
the award. Accordingly, in
determining whether the second respondent’s award is
reviewable, I am particularly mindful
of
what was said by the Supreme Court of Appeal:
And
while the evidence must necessarily be scrutinised to determine
whether the outcome was reasonable, the reviewing court must
always
be alert to remind itself that it must avoid judicial overzealousness
in setting aside administrative decisions that do
not coincide with
the judge's own opinions'.
[22]
In the circumstances, I am not satisfied
that the applicant has established that the award of the second
respondent is reviewable
and accordingly I make the following order:
a.
The applicant’s application is
dismissed
b.
There is no order as to costs.
D H Gush
Judge
APPEARANCES
FOR THE APPLICANT: I Lawrence; ENS Attorneys
FOR THE THIRD RESPONDENT: C Nel
Instructed by Austen Smith Attorneys
[1]
Founding affidavit pages 7 and 8.
[2]
2008 (2)
SA 24
(CC).
[3]
[2013] 11 BLLR 1074 (SCA).
[4]
At paras 12 and 13.
[5]
(2009) 30 ILJ 2642 (SCA).
[6]
at page 2650E para 15.